Rajcinoski and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1222

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1222

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/359

GENERAL ADMINISTRATIVE  DIVISION

Re:       NIKOLA RAJCINOSKI

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             12 December 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - applicant residing outside Australia but in Australia on 1 July 2004 - portability of pension - maximum period of payment - information from Centrelink - whether estoppel applies

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act (No. 122 / 2003), schedules 1A, 6

Social Security Act 1991 s 1217

Social Security (Administration) Act 1999  s 149(4)

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93

REASONS FOR DECISION

12 December 2005  G.D. Friedman, Senior Member

1.      On 1 July 2004 the law concerning portability of the disability support pension (DSP) changed.  Recipients of DSP who were in Australia on that date, and then went overseas, could continue to receive payment for only 13 weeks after leaving Australia.

2.      Nikola Rajcinoski claims that he relied on incorrect information from Centrelink and lost permanent portability of DSP because he was in Australia on 1 July 2004.

3.      The issue before the Tribunal is whether the portability of Mr Rajcinoski’s DSP can be extended beyond 13 weeks.  Mr Rajcinoski contends that the Secretary to the Department of Employment and Workplace Relations is estopped from limiting the portability of his DSP to 13 weeks.

4.      The relevant legislation is the Social Security Act 1991 (the Act) which was amended by the Family and Community Services and Veterans Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (the Amending Act). Clause 12 of Schedule 6 of the Amending Act amended s 1217 of the Act to provide that the maximum portability period for a DSP recipient is 13 weeks, unless that person meets the qualifying circumstance, such as suffering from a terminal illness. The changes apply to existing social security recipients who were classified as severely disabled with unlimited portability prior to the amendments.  Clause 20(1) of Schedule 6 states that the new provisions apply to any absences of such recipients from Australia that start on or after 1 July 2004.

5.      Clause 135(1) of Schedule 1A of the Amending Act is a saving provision that applies if a person is absent from Australia on 1 July 2004.

DID CENTRELINK PROVIDE INCORRECT ADVICE TO MR RAJCINOSKI WHICH HE RELIED ON TO HIS DETRIMENT?

6.        Mr Rajcinoski said that he came to Australia from Macedonia in 1988 and is an Australian citizen.  He has been receiving DSP since 1998.  In 2003 he left Australia to live with his parents in Macedonia.  In 2004 he decided to visit Australia for a short period.  He said that he had heard about possible changes to the rules concerning the portability of DSP.  So on 19 April 2004 he telephoned the Centrelink international call centre and was told that any changes would not apply to him as long as he did not return permanently to Australia.  He stated that he acted on this advice and travelled to Australia on 22 June 2004 on an airline ticket arranged by his friend Mr J. Gruev.  Mr Gruev told the Tribunal that the date of the visit was not a consideration for Mr Rajcinoski.

7.        Mr Rajcinoski agreed that he had contacted Centrelink on 22 July 2004 and was told that DSP would cease 13 weeks after his departure from Australia because he had been in Australia on 1 July 2004.  This information was confirmed several times in communications between him and Centrelink.  Mr Rajcinoski said that if he had known of the legislative changes affecting his DSP before coming to Australia he would not have travelled to Australia before 1 July 2004.  He denied receiving a letter dated 5 April 2004 from Centrelink (Exhibit R1).  The letter was correctly addressed to him in Macedonia, and stated:

Social Security and Family Assistance legislation will change from 1 July 2004.  The length of time that most Australian payments, including Disability Support Pensions, can be paid whilst overseas will be shortened to 13 weeks.

If you are already outside Australia on 1 July 2004 the new rules will not apply to you until you return to Australia…

He said that the impact of the cancellation of DSP has been severe on him, because there is no equivalent pension in Macedonia.

8.        After hearing the oral evidence and considering the written material the Tribunal is reasonably satisfied that Mr Rajcinoski received the letter sent by Centrelink on 5 April 2004.  The Tribunal takes the view that Mr Rajcinoski’s telephone contact with Centrelink on 19 April 2004, in which he queried the portability arrangements, was in response to that letter.  Centrelink’s record of the telephone conversation (T1, page 53) is: Advised customer that as long as he does not return to Australia to live new rules will not apply to him.  In the context of providing information to a person who is already out of Australia, it is reasonable to conclude that the Centrelink officer may, in effect, have been advising Mr Rajcinoski not to return to Australia before 1 July 2004; particularly as the telephone enquiry seems to have been made in general terms, rather than a request for specific information about the applicant’s situation.

9.        In the absence of a full record of the conversation, and given that Mr Rajcinoski appears to have interpreted the words to live as meaning to reside permanently in Australia, the Tribunal finds that the advice was not necessarily incorrect.  The Tribunal notes that Mr Rajcinoski did not contact Centrelink on his arrival in Australia or before 1 July 2004 to seek clarification of the new rules or the contents of the letter dated 5 April 2004.  

10.      In any event, Mr Rajcinoski’s submission that the respondent is estopped from limiting the portability of his DSP is misconceived.  The principle of estoppel has no application in matters that involve the determination of a person’s rights, instead of the exercise of a statutory discretion.  As Davies and Gummow J held in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125, estoppel by representation cannot extend the authority of the decision-maker beyond that given by the statute.  Similarly, in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, Gummow J observed at page 208:

As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament.  Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.

Therefore, regardless of any advice or information Mr Rajcinoski received from Centrelink, the Tribunal is required to decide this application in accordance with the relevant provisions of the Social Security Act.

ARE THERE ANY OTHER GROUNDS ON WHICH MR RAJCINOSKI IS ENTITLED TO UNLIMITED PORTABILITY OF DSP?

11.      When Mr Rajcinoski returned to Australia on 22 June 2004 he did not intend to live here permanently and he was not absent from Australia on 1 July 2004.  So the saving provision in clause 135 does not apply.

12.      The Second Reading Speech for the Amending Act stated that it will be possible to grant unlimited portability to a severely disabled disability support pensioner who returns overseas after a short visit to Australia.  However, the Explanatory Memorandum noted that:

Item 19 inserts a new clause 135 into schedule 1A to the Social Security Act. This new provision enables the Secretary to determine unlimited portability for DSP where a disability support pensioner with an unlimited portability period is absent from Australia on 1 July 2004, comes to Australia after that date and does not become an Australian resident again. 

Therefore, the legislation contained a clear intention to place limits on the portability of DSP if a person was not absent from Australia on 1 July 2004, so Mr Rajcinoski cannot rely on statutory interpretation to seek unlimited portability.

13.      The Tribunal accepts that Mr Rajcinoski would not have travelled to Australia if he had understood clearly that his presence in this country on 1 July 2004 would affect the portability of his DSP.  However, his failure to gain such an understanding did not necessarily result from any action on the part of Centrelink in its response to his enquiry, or from its conduct generally; particularly in view of the contents of the letter dated 5 April 2004 alerting him to changes due to occur on 1 July 2004.

14. Section 149(4) of the Social Security (Administration) Act 1999 provides that in certain circumstances the Secretary (or the Tribunal) may determine that an event that did not occur, did occur.  However, this requires the Social Security Appeals Tribunal to set aside a decision under s 149(1).  This did not occur and therefore the provision does not apply in this case.      

15.      The Tribunal notes that if a person receives incorrect or ambiguous advice from a Centrelink officer, he or she may be eligible for a payment under the Compensation for Detriment caused by Defective Administration (CDDA) scheme administered by Centrelink.  The Tribunal does not, however, have the power to decide whether a person should receive such a payment.

DECISION

16.      The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  31 October 2005

Date of decision:  12 December 2005

Counsel for applicant:                  Mr P. Kistler

Solicitor for applicant:                  Victoria Legal Aid

Advocate for respondent:            Mr W. Zita, Centrelink