Lynne Mann and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 890

[2012] AATA 890  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4349
Re	Lynne Mann
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	18 December 2012
Place	Brisbane (heard in Darwin)

The decision is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – disability support pension – whether Australian resident – applicant living in Indonesia – permanent accommodation in Indonesia – dependant located in Indonesia – few assets in Australia – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 7(2), 7(3), 94(1)(ea)

SECONDARY MATERIALS

Explanatory Memorandum to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth)

REASONS FOR DECISION

Deputy President PE Hack SC

18 December 2012

Introduction

1. Until recently recipients of disability support pension were required to be Australian residents when first becoming qualified to receive the pension; they were not required to be Australian residents thereafter.  And because disability pension has “portability” of 13 weeks, the situation arose that many recipients of disability support pension were living overseas and returning briefly to Australia every 13 weeks to retain the benefit of disability support pension.  That situation changed from 1 July 2011 by virtue of an amendment made to the Social Security Act 1991 (Cth) by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth). That amendment added a further qualification for disability support pension, the requirement in s 94(1)(ea) of the Social Security Act that the person be an Australian resident.

2. The applicant in these proceedings, Ms Lynne Mann, has been in receipt of disability support pension for a number of years.  At least since 2007 she has spent the majority of her time in Indonesia, returning to Australia only periodically.  On February 10, 2012, Centrelink, on behalf of the respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, decided to cancel Ms Mann's disability support pension on the basis that she was not a resident of Australia.  That decision was affirmed on internal review and by the Social Security Appeals Tribunal on 20 June 2012.

3. Ms Mann now seeks a review of that decision in this Tribunal.

   The legislation

4. The qualifications for disability support are set out in s 94 of the Social Security Act. It is sufficient for present purposes to notice that a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment of a particular level of severity, a continuing inability to work, was an Australian resident at the time when the person first satisfied the requirement for a continuing inability to work and, since the amendment in 2011, the requirement of s 94(1)(ea) that,

   (i)        the person is an Australian resident …

   That requirement is subject to an exception but it is not relevant to the present proceedings.

5. The expression “Australian resident” is defined in s 7(2) of the Social Security Act as a person who “resides in Australia” and, relevantly, is an Australian citizen. Section 7(3) of that Act provides this guidance on the issue of residing in Australia,

   In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

   (a)       the nature of the accommodation used by the person in Australia; and

   (b)the nature and extent of the family relationships the person has in Australia; and

   (c)the nature and extent of the person's employment, business or financial ties with Australia; and

   (d)       the nature and extent of the person's assets located in Australia; and

   (e)       the frequency and duration of the persons travel outside Australia; and

   (f)any other matter relevant to determining whether the person intends to remain permanently in Australia.          

6. The Explanatory Memorandum that accompanied the bill which made this amendment described the purpose of the amendment in these terms:

   These amendments will close a loophole that has allowed continued payment of disability support pension to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.

   It is not the intention of the 13-week portability period to allow people to live overseas and return to Australia for only short periods every 13 weeks to maintain payment.  The 13-week portability period is designed to allow disability support pensioners who reside permanently in Australia sufficient time to deal with personal matters that may arise from time to time overseas.  This is consistent with the purpose of disability support pension, which is to assist people with the cost of living in Australia, and is designed to engage people of workforce age in activities in Australia that will lead to greater levels of economic and social participation.

   Consideration

7. The matters listed in s 7(3) of the Act provide a convenient starting point for the examination of whether Ms Mann was residing in Australia in February 2012 when the decision under review was made. And in examining that issue it is appropriate to have regard to the situation in the other locality where it is contended that the person is residing. Here, the Secretary contends that Ms Mann was residing in Indonesia and that she has done so since August 2007 when she ceased receiving rent assistance.

8. Ms Mann’s evidence was that since 2008, when she has been in Indonesia, she has lived in a cousin’s house in Indonesia.  The cousin, who was widowed some years ago, has a long term lease of the premises and resides there with Ms Mann’s granddaughter.  Each of Ms Mann and the granddaughter has a bedroom in that house.  Ms Mann owns the bed she sleeps in; she found it necessary to do so because of back problems. 

9. With one exception, when Ms Mann has been in Australia in the past two years she has resided with her brother who lives in a caravan in Darwin.  Whilst staying there she sleeps in the caravan and the brother sleeps in an annex outside.  The exception concerns a visit earlier this year where Ms Mann stayed with acquaintances near Alice Springs.  She has, on other occasions, stayed with other relatives but her description of those occasions was suggestive of visits to relatives rather than taking up residence.

10. It could not be said that Ms Mann maintains any accommodation in Australia; in contrast, she maintains a room in her cousin’s house in Indonesia.

11. Ms Mann has considerable family in Australia – two children, living in Perth and Sydney with their families, a sister in Perth and a brother in Darwin – but she has not had a great deal of contact with any of them except her brother in recent years.  She is hoping to meet up with her sister, brother and daughter in Bali over Christmas.  In Indonesia, on the other hand, she is very close to her granddaughter and has played a considerable role in the upbringing of that child over the past four years at least.  As the Secretary’s submissions aptly put it – Ms Mann sees her family in Australia periodically but she cares for her grandchild in Indonesia.

12. Ms Mann has a single bank account, kept in Australia, into which the disability support pension is paid and she accesses that account via automatic teller machines in Indonesia.  She has no other employment, business or financial ties with either Australia or Indonesia.

13. Ms Mann has very few assets.  She has furniture, kept at her sister's house.  Her sister uses some of the furniture but the balance is in storage.  Ms Mann has not used that furniture for some years.  The only other apparent asset she has is the bed which she purchased in Indonesia.

14. Ms Mann's travels to and from Australia are set out in the Secretary’s Statement of Facts and Contentions.  That demonstrates that between 1 August 2007 and 10 February 2012 Ms Mann was present in Australia for just short of 22 weeks but was absent from Australia for four years and six weeks.  By way of example Ms Mann arrived in Australia on 13 February 2010 (having previously left on 19 November 2009) and departed five days later on 18 February 2010.  She next arrived in Australia on 18 May 2010, departing on 21 May 2010.  She arrived on 17 August 2010 and departed on 28 August 2010.  On four occasions during 2011 Ms Mann arrived in Australia from Indonesia but stayed only one day on each occasion. 

15. The evidence of Ms Mann is that living in Indonesia is her preference.  She can be with her grandchild and she finds it better for her health to live in Indonesia.  She is able to avail herself there of massage and other therapies that she prefers to prescription painkillers that she would need to use in Australia.  It is understandable that she may have that preference however it seems to me to be plain that Ms Mann was not, in February 2012, residing in Australia; she was residing in Indonesia and likely had been since at least August 2007.

16. Ms Mann suggested that she might be entitled to disability support notwithstanding residence in another country by virtue of saving provisions that accompanied amendments made to the Social Security Act in 2004.  But those provisions do not avail her.  They permit recipients who were absent from Australia in 1 July 2004 and who were not then residents of Australia to continue being paid whilst outside Australia until such time as they again became Australian residents.  As Ms Mann was a resident of Australia at that date the saving provision has no application to her, it was only later that she ceased residing in Australia.

17. It follows that the decision to cancel her disability support pension was correct and that decision ought be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 18 December 2012

Date of hearing	5 December 2012
Applicant	In person
Advocate for the Respondent	Mr R Hamilton, Department of Human Services