RITCHIE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 520

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 520

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1058

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JEANNE RITCHIE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date28 July 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]...................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Carer payment and carer allowance – Portability while outside of Australia -– Exceptions to limited portability of 13 weeks not applicable – Decision under review affirmed

Social Security Act 1991 (Cth) ss 1217, 1218C

REASONS FOR DECISION

28 July 2011 Mr R G Kenny, Senior Member    

BACKGROUND

1.      Jeanne Ritchie receives carer payment and carer allowance under the Social Security Act 1991 (Cth) (“the Act”). These are paid in relation to her providing care to Stilianos Douvartzidis. On 25 June 2010, Mrs Ritchie and Mr Douvartzidis travelled from Australia to Greece to enable Mr Douvartzidis to see his sister who was in ill health. On 6 July 2010, Centrelink wrote to Mrs Ritchie and advised that she would continue to receive the carer payment and carer allowance until 24 September 2010. This was a period of 13 weeks after her and Mr Douvartzidis’ departure from Australia. After her return to Australia on 18 October 2010, Mrs Ritchie sought review of that decision. On 16 November 2010, an authorised review officer reviewed and affirmed that decision. In turn, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision on 17 February 2011.

CONTENTIONS

2.      Ms Brazier, for the respondent, submitted that the maximum portability period for Mrs Ritchie’s carer payment and carer allowance was 13 weeks, and that the last date on which she was entitled to receive them was 24 September 2010. While accepting that there were exceptions to the general 13 week limitation period for carer payment, Ms Brazier submitted that these were not applicable in Mrs Ritchie’s circumstances.

3.      Mrs Ritchie submitted that Centrelink had provided her with incorrect information about the portability of her benefits, in that she understood that her benefits would continue for up to 26 weeks absence from Australia. She also submitted that a copy of the general rules of portability should have been made available to her before departing from Australia. Mrs Ritchie was critical of the 13 week limitation in that her carer obligations continued to be undertaken by her at all times while Mr Douvartzidis was overseas.

LEGISLATION AND ISSUES FOR DETERMINATION

4. The portability of Mrs Ritchie’s carer allowance and carer payment is limited by the terms of s 1217(1) of the Act, which reads:

1217Meaning of maximum portability period, allowable absence and portability period

Meaning of maximum portability period

(1)The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a)       the payment (as specified in column 2 of the table); and

(b)the class of persons to which the person belongs (as specified in column 3 of the table).

…

Portability of social security payments
Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
6	Carer payment	All persons	Any temporary absence	13 weeks (but see also section 1218)
21	Carer allowance	All persons	Any temporary absence	13 weeks

5. Carer allowance portability is limited to a 13 week period. Carer payment is also limited to a period of 13 weeks, but that is subject to those provisions in the Act which enable the period to be extended in nominated cases. In Mrs Ritchie’s case, the potentially relevant provision for such extension is s 1218C of the Act. It reads:

(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;

(ii)       industrial action in the country in which the person is located;

(iii)      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.

6. The “person” referred to in that provision is Mrs Ritchie. Reference is also made to the term “family member”, which is defined in s 23(14) of the Act:

(14)For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):

(a)       the partner or a parent of the relevant person;

(b)       a sister, brother or child of the relevant person;

(c)any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).

7.      It is common ground in this matter that Mr Douvartzidis is not a partner, parent sister, brother or child of Mrs Ritchie.[1] The issue for determination is whether any of the exceptions in s 1218C of the Act is applicable to Mrs Ritchie.

[1] For “parent” and “child”, see s 5(1)(a) of the Act.

EVIDENCE

8.      Mrs Ritchie described Mr Douvartzidis as the patriarch of his Greek family whose members wanted him to return to Greece to see his sister, as he was aware that she was in ill-health. He and Mrs Ritchie arranged to travel from Australia to Greece on 21 July 2010 and to return on 18 October 2010. On learning that Mr Douvartzidis’ sister was seriously ill, they brought forward their departure date to 25 June 2010 but left the return date unchanged. Mrs Ritchie attended a Centrelink office on 17 June 2010 and advised a Centrelink officer of these arrangements. At the office, Mrs Ritchie completed and lodged a statement in which she gave her departure and return dates. However, parts of the statement were not completed. These included the date of the statement, Mrs Ritchie’s signature and the type of income support that she was receiving.

9.      Mrs Ritchie was critical of the Centrelink officer’s failure to ascertain that she was in receipt of the carer payment and carer allowance and believed that he may have wrongly assumed that she was in receipt of the age pension, which has a 26 week portability period. Mrs Ritchie said that she was advised that her carer allowance and carer payment would continue to be paid to her for up to 26 weeks. She said that, if she had been advised of the 13 week limitation, she would have arranged for herself and Mr Douvartzidis to return to Australia earlier. The first indication that Mrs Ritchie had of the suspension of her carer payment and carer allowance was after returning to Australia and accessing the mail which had been sent to her address in her absence. This included the letter from Centrelink, dated 6 July 2010, which advised of the 13 week portability period. 

10.     Mr Douvartzidis’ sister died on 14 July 2010. He and Mrs Ritchie remained in Greece for the appropriate mourning period and in order for Mr Douvartzidis to carry out his patriarchal duties, which included visiting with the family’s matriarch who was aged 103 years. 

CONSIDERATION

11.     In evidence was a Centrelink file note which declared that Mrs Ritchie had attended a Centrelink office on 6 July 2010. Clearly, that entry is inaccurate as she was in Greece with Mr Douvartzidis at that time. Ms Brazier conceded that this was an error and said that she understood that the file note referred to a date on which Mrs Ritchie’s departure details were notified to Centrelink by the Australian immigration authorities. 

12.     I have noted Mrs Ritchie’s concern that she was not made aware by Centrelink of the document setting out general rules of portability until long after her return to Australia. Ms Brazier advised that this was contained in the policy guidelines[2] used by Centrelink and these guidelines were not routinely sent to all recipients of social security payments.

[2] See s 7.1.2.10 of the Guide to Social Security Law.

13. I accept as correct the version of events given by Mrs Ritchie. Unfortunately, she was incorrectly advised that her carer allowance and carer payment would continue for the period of her absence from Australia. Although Centrelink wrote to her on 6 July 2010 advising her of the 13 week limitation, Mrs Ritchie did not receive that letter until after she returned from her travel to Greece. I also accept that receiving that information at that time became a matter of much concern to her. Nonetheless, the extent of the portability of her social security payments must be determined by the provisions of the Act.

14. Under s 1217(1) of the Act, Mrs Ritchie’s carer allowance may not be extended beyond the 13 week limitation period, which commenced on 25 June 2010 and ended on 24 September 2010. Accordingly, carer allowance was not payable to her from 25 September 2010 until 17 October 2010. The Act provides no opportunity to exercise any discretion in relation to that limitation. For carer payment, an extension of the 13 week limitation period is applicable in the circumstances nominated in the provisions which follow s 1217 of the Act including, of potential relevance to Mrs Ritchie, s 1218C of the Act. These are listed above and none of them apply to Mrs Ritchie. In so determining, I am satisfied that Mr Douvartzidis’ sister was not a member of Mrs Ritchie’s family, as defined in s 23(14) of the Act. Even if it were the case that the references to an event involving hospitalisation, serious illness and death of a family member applied to Mrs Ritchie, the application of s 1218C(1) of the Act in this matter is precluded by s 1218C(3) of the Act. This requires that the event occurred or began during the period of absence from Australia. That is not the situation of Mrs Ritchie.

DECISION

15.     The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  ......................[Sgd]............................................
               Danielle Armstrong, Research Associate

Date/s of Hearing  28 June 2011
Date of Decision  28 July 2011
The applicant was self-represented
The solicitor for the respondent was Michelle Brazier, departmental advocate