Radovski and Secretary, Department of Social Services (Social services second review)
[2015] AATA 546
•28 July 2015
Radovski and Secretary, Department of Social Services (Social services second review) [2015] AATA 546 (28 July 2015)
Division GENERAL DIVISION File Numbers
2014/5991; 6109
Re
Peco Radovski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 28 July 2015 Place Sydney The decisions under review are affirmed.
............................[sgd]............................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – carer payment and carer allowance – suspension of payments – extended absence from Australia – portability of payments – whether discretion to extend portability – statutory grounds for extension – no grounds for exercise of discretion – decisions affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 1217, 1218C
REASONS FOR DECISION
Dr Ion Alexander, Member
28 July 2015
BACKGROUND
Mr Radovski provides full-time care for his son who is almost 26 years old and is severely impaired. His son has been granted unlimited portability for his disability support pension (DSP) on the basis of his severe impairment.
On the 10 July 2013 Mr Radovski and his son left Australia to travel to Macedonia to visit family and friends.
Prior to leaving Australia, Mr Radovski was receiving carer payment and carer allowance.
On the 21 August 2013, while Mr Radovski and his son were still absent from Australia, Centrelink suspended the carer payment and carer allowance on the basis that Mr Radovski had been absent from Australia for more than six weeks.
When Mr Radovski and his son returned to Australia on 7 October 2013 both payments were restored.
Upon internal review, an authorised review officer (ARO) found that the decisions to suspend the carer payment and carer allowance from 21 August 2013 to 7 October 2013 were correct.
On the 24 June 2014 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision on the basis that that none of the events set out in section 1218C of the Social Security Act 1991 (the Act), which would allow for an extension of the portability period, applied in this case.
Mr Radovski now seeks review of the SSAT’s decision. The parties have agreed to a review on the papers alone.
ISSUES
Section 1217 of the Act provides for the maximum portability periods for the continuation of social security payments when a person is absent from Australia.
On the 1 January 2013 new rules came into effect which limited the portability period for carer payment and carer allowance to a period of six weeks for any temporary absence from Australia. Previously when Mr Radovski had travelled overseas with his son in 2012 the maximum portability for these payments had been 13 weeks.
There is no dispute that Mr Radovski was absent from Australia for more than six weeks and that the relevant absence was from 21 August 2013 to 7 October 2013.
Relevantly section 1218C of the Act provides for the extension of a person’s portability period as follows:
1218C Extension of person’s portability period—general
(1)The 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)a serious accident involving the person or a family member of the person;
(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;
(d)the death of a family member of the person;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
(2)The Secretary must not extend the person’s portability period under subsection (1) unless:
(a)the event occurred or began during the period of absence; and
(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3)If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period
Therefore, the definitive issue in this matter is whether Mr Radovski was unable to return to Australia because of any of the events outlined in section 1218C of the Act.
CONSIDERATION
Mr Radovski told the SSAT that he had informed Centrelink that he and his son were leaving Australia but Centrelink has no record of this.
It would appear that, until he returned to Australia, Mr Radovski was not aware of the recent rule change to the portability period or, that his payments had been suspended, as the relevant documents were sent to his Australian address.
There is no dispute that Mr Radovski continued to provide full-time care for his son during his absence from Australia and it seems somewhat unfair to limit his portability period to six weeks when his son’s impairment was severe enough to warrant unlimited portability of DSP.
Nevertheless, in my reading of the relevant legislation there is no broad discretion to consider any ‘special circumstances’. The discretion to extend a person’s portability period provided by section 1218C of the Act is somewhat narrow and limited to specified events, which occur or begin during the period of absence, and prevent a person from returning to Australia.
There is no evidence before the Tribunal that Mr Radovski was unable to return to Australia because of any events outlined in section 1218C of the Act and, therefore, the discretion to extend the portability cannot be applied.
It follows that the decisions to suspend Mr Radovski’s carer payment and carer allowance from 21 August 2013 to 7 October 2013 were correct.
DECISION
The decisions under review are affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander ..............................[sgd]..........................................
Associate
Dated 28 July 2015
Heard on the papers 7 July 2015 Applicant People with a Disability Australia Inc Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Statutory Interpretation
-
Portability of Payments
-
Discretionary Decision-Making
0
0
1