Mojaeva and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Ms Mojaeva against a decision by the Secretary, Department of Social Services, to affirm a decision that she was not eligible to receive a disability support pension (DSP) while overseas on 30 March 2016, as she had exceeded the maximum portability period. The appeal was heard by Ms N Isenberg, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Ms Mojaeva was entitled to receive DSP while overseas, specifically whether she travelled for "eligible medical treatment" as defined by the Social Security Act 1991. This required the Tribunal to consider whether the medical treatment she received overseas was of a kind not available in Australia, and whether she had a severe impairment that would allow for unlimited portability.

The Tribunal applied the principles established in *Secretary, Department of Social Security and Howse* and *Younan and Secretary, Department of Employment and Workplace Relations*, which dictate that the availability of medical treatment must be assessed objectively, not subjectively. The Tribunal noted that while the applicant's dental treatment, which included implants, crowns, and bridges, might have been more expensive or delayed in Australia, there was no evidence that such treatment was unavailable in Australia. Furthermore, there was no evidence of a recommendation or referral from an Australian health professional for this overseas treatment. The Tribunal also considered the applicant's claim that she was not fully informed about the portability limitations, but found that it was speculative whether this would have altered her travel plans, and that objectively, she had exceeded her entitlement.

The Tribunal affirmed the decision under review.