Marcus WONG and Secretary, Department of Social Services
[2014] AATA 832
•5 November 2014
[2014] AATA 832
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0151
Re
Marcus WONG
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 5 November 2014 Place Melbourne The Tribunal affirms the decision under review
[sgd].......................................................................
Mr C Ermert, Member
CATCHWORDS
Social Security – disability support pension - maximum portability period - extend portability period - serious illness – hospitalisation – decision affirmed
LEGISLATION
Social Security Act 1991 sections1215, 1217, 1218, 1218AA, 1218AAA, 1218AB and1218C
REASONS FOR DECISION
Mr C Ermert, Member
5 November 2014
INTRODUCTION
Marcus Wong, the Applicant, is under the care of his mother, Mrs Walairut Wong. This application is connected with, and was heard with, application number 2014/0152, lodged with this Tribunal by Mrs Wong.
On 14 May 2013 Mrs Wong contacted Centrelink to advise that she and Marcus would be departing Australia on 19 May 2013. Centrelink is the service provider for the Department of Social Services, the Respondent. On the same day Centrelink wrote to Mrs Wong on behalf of Marcus to advise that his disability support pension (DSP) would be paid only up to 30 June 2013.
On 19 May 2013 Mrs Wong and Marcus departed Australia and travelled to Thailand. Marcus did not undergo a Job Capacity Assessment prior to departing Australia. On 12 June 2013 they travelled from Thailand to China. Marcus’s payments were suspended on 2 July 2013 because he was still overseas. Mrs Wong and Marcus returned to Australia on 13 July 2013.
On 16 August 2013 an authorised review officer (ARO) of Centrelink affirmed the decision to suspend the payments. On 11 December 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision. This matter is an application for review of the decision of the SSAT.
THE HEARING
Due to the state of Mrs Wong’s health, the hearing was conducted by telephone. Mrs Wong represented Marcus. Mr Tim de Uray, a departmental lawyer, represented the Respondent.
I had before me the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). For Marcus I took into evidence:
·a folder of documents enclosing a covering letter to the Tribunal dated 5 April 2014, revised on 14 May and 18 May 2014 (enclosure S0), together with 13 enclosures labelled S1, S1a, S2, S2, S3, S4, S4a, S5, S6, S7, S8, S9, and S10 (the folder of submissions);
·Exhibit A1 – Mrs Wong’s letter to the Administrative Appeals Tribunal (AAT) dated 1 October 2014 redacting sections G, H and I, with the following attachments:
oReport by Dr Chandra Krishnamurthi dated 13 August 2014;
oA pamphlet from Carers Victoria entitled Carers in Australia – the facts; and
oThe Centrelink 2014 PAYG Payment Summary – Individual Non Business relating to Mrs Walairut Wong, dated 12 August 2014.
·Exhibit A2 – Walairut’s comments on Tim de Uray’s lodgement to AAT dated 4/7/14;
·Exhibit A3 – Comments on Mr Tim de Uray’s lodgement to AAT dated 7 July 2014 by Marcus’ nominee (Walairut Wong, Marcus’ mother and fulltime carer); and
·Exhibit A4 – report by Mr Edwin Kleynhans, psychologist, dated 3 October 2014.
For the Respondent I took into evidence the Secretary’s Statement of Facts and Contentions dated 7 July 2014. I also took into evidence the Secretary’s Statement of Facts and Contentions dated 4 July 2014, relating to Mrs Wong’s application (2014/0152).
THE LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act).
Section 1217 of the Act prescribes the maximum portability period of six weeks for DSP, subject to the provisions of sections 1218AAA, 1218AA, 1218AB and 1218 of the Act. It is not in dispute that Mrs Wong and her son were outside Australia from 19 May 2013 to 13 July 2013, a period of more than six weeks.
Section 1218AAA of the Act provides relevantly:
1 The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
…
2The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b)…
Marcus did not contend, nor did he present any evidence, that he was involved in a serious accident or was hospitalised while outside Australia. As a result, I am prevented by section 1218AAA(2) from making a determination under section 1218AAA(1) that Marcus’s maximum portability period is an unlimited period. Accordingly, the relevant provisions of section 1218AAA are not satisfied and I will not consider this section of the Act any further.
Section 1218AA of the Act relevantly provides for an unlimited portability period if the following circumstances exist:
(c)…the person is terminally ill; and
(d)the person’s absence from Australia is or will be permanent;
…
Marcus did not contend that he is terminally ill; and he presented no evidence that his absence from Australia was anything other than temporary. Accordingly, I find that the provisions of section 1218AA are not satisfied and I will not consider this section of the Act any further.
Section 1218AB of the Act provides that the Secretary may extend the person’s portability period for [DSP] if all of the following circumstances exist, including relevantly:
…
(d)the Secretary is satisfied that the person will be living with the family member of the person throughout the period of absence;
(e)the family member of the person is engaged in employment in Australia for an employer immediately before the start of the period of absence;
(f)the Secretary is satisfied that the family member of the person will be engaged in employment outside Australia for that employer throughout the period of absence.
…
In this case, Mrs Wong, the relevant family member, did not contend nor offer evidence that she was engaged in employment outside Australia throughout the period of absence. Accordingly, I find that the provisions of section 1218AB of the Act are not satisfied and I will not consider this section of the Act any further.
Section 1218 of the Act provides an exception to the suspension of DSP payments if, immediately before the period of absence commenced, the person was undertaking full‑time study as part of a course of education at an educational institution. Marcus did not contend nor did he present any evidence that he was undertaking full-time study before the commencement of the period of his absence from Australia. Accordingly, I find that the provisions of section 1218 of the Act are not satisfied and I will not consider further this section of the Act.
Section 1218C of the Act makes general provisions for the extension of a person’s portability period.
1The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) …;
(b)a serious illness of the person or a family member of the person;
(c)the hospitalisation of the person or a family member of the person;
…
These provisions of section 1218C of the Act are contested by the parties. I must consider and determine whether Marcus satisfies the provisions of this section of the Act.
THE ISSUES
The issues requiring determination are whether Marcus:
·was unable to return to Australia because of a serious illness of himself or Mrs Wong; or
·was unable to return to Australia because of the hospitalisation of himself or Mrs Wong.
TRIBUNAL CONSIDERATIONS
For the same reasons as those given in the matter of Mrs Walairut Wong I am not satisfied that Marcus was unable to return to Australia within the portability period because of a serious illness of himself or Mrs Wong (s.1218C(1)(b)).
For the same reasons as those given in the matter of Mrs Walairut Wong [Re Wong and Secretary, Social Services [2014] AATA 831] I am not satisfied that Marcus Wong was unable to return to Australia within the portability period because of hospitalisation of himself or Mrs Wong (s.1218C(1)(c)).
CONCLUSIONS
I am not satisfied that Marcus and Mrs Wong were unable to return to Australia because of any of the events provided for in section 1218C of the Act. Indeed, the evidence is that they did not return to Australia within the maximum portability period as a result of Mrs Wong’s decision to visit her family in China in spite of her knowledge that the duration of such a visit would exceed the portability period.
There are no other provisions in the Act to allow an extension to the portability period for Marcus’s DSP. Accordingly, I do not extend the six-week portability period in his case.
Section 1215(1)(b) of the Act provides that throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person. I find that Marcus’s DSP was not payable for the period of his absence from Australia after 30 June 2013. As a result, Marcus’s application is not successful.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 5 November 2014
Date of hearing 7 October 2014 Advocate for the Applicant Mrs W Wong, Mother of Applicant Advocate for the Respondent Mr T de Uray, Centrelink Program Review and Litigation Branch
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