Makris and Secretary, Department of Family and Community Services

[2005] AATA 375

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 375

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/4

GENERAL ADMINISTRATIVE DIVISION		)
Re		ARTHUR MAKRIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date28 April 2005

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) M.D. ALLEN

..................................................
  Senior Member

CATCHWORDS

SOCIAL SECURITY – portability of Disability Support Pension – amendment made to Social Security Act 1991 before decision made by Centrelink – whether Centrelink had duty of care to inform Applicant of statutory amendment – accrued rights – application of Acts Interpretation Act 1901 – whether a contrary intention expressed in the amending act – decision under review affirmed.

LEGISLATION

Social Security Act 1991 s 23 (4B) s 1217, 1218AA

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003

Acts Interpretation Act 1901 s 8

CASES

Abbott v The Minister for Lands [1895] AC 425

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 685

Director of Public Works v Ho Po Sang [1961] AC 901

REASONS FOR DECISION

28 April 2005   Senior Member M D Allen

1.      By application made the 4th day of January 2005, the Applicant sought review of a decision by Social Security Appeals Tribunal that affirmed a prior determination to the effect that if the Applicant proceeded overseas, payment of his Disability Support Pension would cease after 13 weeks.

2.      The Applicant’s case is set out in his application for review and reads inter alia:

“I am writing to kindly request that the Administrative Appeals Tribunal considers exempting me from the current legislation regarding portability of my pension overseas (Social Security Act 1991, section 1218AA) and grant portability on a permanent basis by applying the previous law.  This request is made because I was assessed and found “severely disabled” and was allowed to take my pension overseas indefinitely.  However because I was not treated fairly by Centrelink and not informed of changes about to occur in legislation at that time, I did not leave Australia within the time frame required for the previous law to apply.  Farther [sic] more, by informing Centrelink about my intention to live overseas and having a formal assessment of my disability status before the change of the law, I believe that I have accrued some right…….”

3.      There is little dispute regarding the facts in this matter and I find them to be:

(i)        The applicant who is of Greek heritage arrived in Australia in 1993.  As and          from 20 August 1998 he has been in receipt of a Disability Support Pension.

(ii)       On or about July 2003, the Applicant made enquiries with Centrelink          regarding portability of his Disability Support Pension.

(iii) At this time, sections 1213, 1215 and 1217 of the Social Security Act 1991 (as      amended) provided that if a person was “severely disabled” the portability        period for a Disability Support Pension was unlimited.

(iv)      On 10 November 2003, the Applicant’s medical conditions were assessed by       a Medical Practitioner employed by Health Services Australia and on 26          November 2003 an officer of Centrelink recorded a finding that the Applicant           was “severely disabled” for pension portability purposes.

(v)       No advice regarding this finding was sent to the Applicant.

(vi)      On 2 December 2003, the Applicant was advised by telephone that he would       not be issued with a letter stating that his Disability Support Pension would           continue for more than 26 weeks until he notified Centrelink of his date of departure.

(vii)     On 12 July 2004, the Applicant again contacted Centrelink and was advised         that his Disability Support Pension would only be paid for a period of 13      weeks whilst he was outside Australia.

(viii)     By letter dated 31 August 2004, the Applicant was advised that if he travelled       outside Australia from 25 October 2004 he would receive his Disability         Support Pension until 24 January 2005 and that if he remained outside   Australia after that date, payment of his Disability Support Pension would      cease.

4.      There is no dispute that a decision having been made that the Applicant was “severely disabled”, as that term is defined in s 23(4B) of the Social Security Act 1991 as at the date of that decision, if the Applicant had travelled overseas, his Disability Support Pension would have continued to be paid indefinitely.

5.      On the material before me I find that no “decision” was ever made regarding the Applicant’s entitlement to depart Australia and have his Disability Support Pension payments continued until the decision of 31 August 2004.  In other words, although the Applicant had made enquiries regarding payment of his Disability Support Pension whilst abroad and had taken steps, for example the medical examination on 10 November 2003, to ensure continual payment of Disability Support Pension whilst absent from Australia, no decision had been made on the request for continuation of payment. 

6.      The Social Security Act 1991 was amended by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.  That act removed from the Social Security Act 1991 the entitlement of severely disabled persons to receive payment of Disability Support Pension whilst abroad for an unlimited period, substituting in lieu thereof, a period of 13 weeks, unless they were terminally ill. 

7.      In a submission to the Social Security Appeals Tribunal, the Welfare Rights Centre suggested that Centrelink had a duty of care to the Applicant and had failed in that duty by not advising him of the amendment to the Social Security Act 1991 effected by the 2003 amending act and that he had a short period of opportunity to act before the amendments came into force.  I reject the submission that Centrelink has a general duty of care to welfare recipients over and above its duty to administer social welfare legislation in accordance with law and impartially.  In particular, I reject any suggestion that Centrelink is in some manner or form a legal, financial or other adviser to a welfare beneficiary. 

8.      This matter however raises different questions.  The amending act received assent on 5 December 2003, but the relevant Minister’s Second Reading Speech had been before the House of Representatives on 18 September 2003 and the Senate on 8 October 2003.  Some amendments effected by the Act were to take effect from 20 September 2003.  In these circumstances the staff of Centrelink as part of their duties should have been well aware of the proposed amendments and when they were to take effect, so that when the Applicant contacted Centrelink on 2 December 2003 requesting a “portability letter”, they failed in their duty to him by not advising of the changes in the law brought about by the 2003 amending act.

9.      In particular, I accept the evidence of the Applicant that when he telephoned Centrelink and spoke to a person in the Greek language he was asked “when are you going to leave so we can send you the papers?”.

10.     Unfortunately for the Applicant, any remedy for a breach of a duty of care does not lie with this Tribunal but with the courts or with the Ombudsman. 

11. So far as any accrued right is concerned, s 8 of the Acts Interpretation Act1901 reads inter alia:

“Where an act repeals in the whole or in part a former act then unless the contrary intention appears the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed act.”

In my opinion, s 8 has no application in this matter as the amending act has expressed a contrary intention.

12. Subsection 1217(3) of the Social Security Act 1991 as at November 2003 read:

“If the person's maximum portability period for the payment is an unlimited period, the person's portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.”

13.     Clause 15 to Schedule 6 of the Family and Community Services andVeterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act2003 inserted into the Social Security Act 1991 section 1218 AA which reads inter alia:

“An unlimited portability period for a severely disabled person is an unlimited period only if all of the circumstances specified in the section exist….”

and goes on to provide that one of those circumstances is terminal illness.

It is not disputed that the Applicant although severely disabled is not terminally ill. 

14.     Clause 20(1) of Schedule 6 then goes onto to state that:

“The amendments of the Social Security Act 1991 made by this Schedule apply in relation to absences from Australia that start on or after the commencement of this Schedule.”

It seems to me that clause 20(1) indicates an intention to displace the effect of s 8 of the Acts Interpretation Act 1901.

15. Even if s 8 applies I doubt whether at the time of the appeal the Applicant had any accrued right to a continual payment of Disability Support Pension beyond 13 weeks. As was pointed out in Abbott v Minister for Lands [1895] AC 425 at 431:

“But the question is whether it is an “right accrued” within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words “obligations incurred or imposed”.  They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “right accrued” within the meaning of the enactment.”

Compare Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 685 at 696:

“These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment.”

16.     In this matter the Applicant had an entitlement under the Social Security Act 1991 in common with other recipients of the Disability Support Pension to request that pension be paid to him whilst he was overseas.  He had taken steps to exercise that entitlement, but at no time prior to 12 July 2004 did the Applicant seek to have a decision made as to whether he was entitled to payment whilst he was overseas and for what period. He had requested a decision (letter) but had been told no decision would be made until he informed Centrelink of his date of departure.  This he did on 12 July 2004. In the interim, the law had changed, but consistent with the cases cited above no “right” existed until a decision on his request had been made. 

17.     What must be kept clearly in mind is that there is a distinction between the steps undertaken in order to make a decision (process) and the decision itself.  As was pointed out in Director of Public Works v Ho Po Sang [1961] AC 901, there is a manifest distinction between an investigation in respect of a right and an investigation which was made to decide whether some right should or should not be given. All that occurred in the Applicant’s case was that an investigation had been made in order to decide whether the right should or should not be given. Subsection 1217(3) of the Social Security Act 1991 then provided that he had the right “at the commencement of the period of absence”. 

18.     The Applicant has no accrued right and the period during which Disability Support Pension can be paid whilst he is overseas is that period mandated by the Social Security Act 1991 at the time of the decision under review, namely as at 31 August 2001 which correctly complied with the Act by stating the period was one of 13 weeks only. 

19.     The decision under review will therefore be affirmed.

20.     The decision in this case is a particularly cruel one as the Applicant has no family support in Australia but does have such support in Greece.  At all times he acted in the belief that once having been found to be severely disabled he was entitled to portability of his Disability Support Pension.  I agree wholeheartedly with the Social Security Appeals Tribunal in their comments that preventing the return of the Applicant to Greece will in fact cost the Australian taxpayer more due to the Applicant’s ongoing extensive demands upon the public health system, than if his return to Greece were permitted with the income provided by his pension.  As suggested previously in these reasons, this is a matter which should be taken up with the Ombudsman. 

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         (E.Pope)           .....................................................................................
  Associate

Date of Hearing  15 April 2005
Date of Decision  28 April 2005
Advocate for the Applicant       Ms Chrissie Papasavva              
Advocate for the Respondent   Ms Jane Green, Centrelink Service Recovery          Team