Stankovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 900
•8 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1494
GENERAL ADMINISTRATIVE DIVISION ) 2008/1496 Re DUSANKA STANKOVIC Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date8 October 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................[Sgd].........................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – compensation precluded payments – lump sum preclusion period – no special circumstances – decision under review affirmed.
SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – portability period – can only be paid while a person is absent from Australia for a maximum 13 weeks – applicant not terminally ill – no extension of portability period –decision under review affirmed.
Social Security Act 1991 (Cth) ss 17, 1169, 1170, 1178, 1179, 1184K, 1217, 1218AA, 1218C Schedule 1A
Re Hajar and Secretary, Department of Social Security [1988] AATA 787 (23 Dec 1988
Re Secretary, Department of Social Security and Ronald Joseph Haining [1992] AATA 130
Re Lazarov and Secretary Department of Family and Community Services [2004] AATA 743 (15 July 2004)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Domenico Colaiacolo and Secretary to the Department of Social Security [1985] AATA 91 (24 April 1985)
Groth v Secretary Department of Social Security (1995) 40 ALD 541
Department of Social Security v Cunneen (1997) 78 FCR 576; (1997) 149 ALR 665
Re Ian Foster and Secretary Department of Employment and Workplace Relations [2006] AATA 983 (21 Nov 2006)
REASONS FOR DECISION
8 October 2008 Dr M Denovan, Member INTRODUCTION
1. As a result of a workplace injury Ms Stankovic is severely disabled. She was granted disability support pension (DSP) in February 2002. Prior to that date Ms Stankovic was receiving Newstart allowance. When Ms Stankovic received a compensation payment for that work related injury, Centrelink raised a debt for compensation affected payments. Further, Centrelink cancelled Ms Stankovic’s disability support pension when she left Australia for more than 13 weeks.
DECISIONS UNDER REVIEW
2. A decision of Centrelink dated 7 August 2007, to preclude payment of compensation affected payments to Ms Stankovic for the period 1 November 2001 to 18 September 2002 and to recover a charge of $9562.06.
3. A decision by Centrelink dated 19 September 2007, to reject Ms Stankovic’s claim for portability of disability support pension.
BACKGROUND
Decision one – compensation precluded payments
4. Ms Stankovic was paid newstart allowance from 1 November 2001[1]. On 13 February 2002 payment of newstart allowance was cancelled and payment of disability support pension was granted[2].
[1] Exhibit 1: T9, folio 54; T37 folio 187.
[2] Exhibit 2 Attachment A.
5. As a result of Ms Stankovic receiving a compensation payment, Centrelink determined that for the period 1 November 2001 to 18 September 2002 compensation affected payments were not payable to Ms Stankovic. Centrelink raised a compensation charge of $9562.06.
6. Ms Stankovic asked for a review of that decision and on 3 September 2007 an authorised review officer reviewed and affirmed the decision[3].
[3] Exhibit 1: T24, folios 138-148.
7. Ms Stankovic applied to the Social Security Appeals Tribunal (SSAT) for review of the decision of Centrelink. The decision was affirmed by the SSAT on 23 January 2008[4].
[4] Exhibit 1: T2, folios 9-15.
8. The application for review of the decision by the Administrative Appeals Tribunal (AAT) was lodged on 9 May 2008[5]. An extension of time was granted in relation to the application[6].
[5] Exhibit 1: T1 folios 1-8.
[6] Exhibit 1: T1, folio 4.
Decision two- portability
9. Ms Stankovic was in receipt of DSP when on 4 September 2007 she left Australia.
10. On 19 September 2007 Centrelink determined that DSP would cease to be payable to Ms Stankovic after 13 weeks if she remained absent from Australia[7].
[7] Exhibit 1: T24A, folio 149.
11. Ms Stankovic sought a review of that decision and on 4 October 2007 the decision was affirmed by an authorised review officer[8].
[8] Exhibit 1: T26, folio 153-161.
12. On 4 December 2007 Centrelink notified Ms Stankovic of the decision to cancel payment of DSP from 4 December 2007[9].
[9] Exhibit 2, attachment B.
13. On 23 January 2008 the SSAT affirmed the decision under review. On 9 May 2008 Ms Stankovic applied to the AAT for review of that decision[10]. An extension of time was granted in relation to the application[11].
[10] Exhibit 1: T1, folios 1-8.
[11] Exhibit 1: T1, folio 3.
ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION
14. The relevant legislation is contained in the Social Security Act 1991 (“the Act”).
Portability provisions
15. In respect to the decision relating to portability, the relevant provisions are contained in s 17 as well as Part 4.2 of the Act.
16. Section 1217 of the Act has provided that disability support pension (DSP) can only be paid while a person is absent from Australia for a maximum of 13 weeks.
17. Section 1218AA of the Act provides for extended portability period in certain circumstances.
“s1218AA Extended portability period for disability support pension
(1) The Secretary may determine 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:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person's absence from Australia is or will be permanent; and
(e) the purpose of the person's absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person's country of origin.
(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person's maximum portability period for the pension were 13 weeks starting at that time. “
18. Section 1218C provides for extended portability when a person is unable to return to Australia under certain circumstances.
“s1218C 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. “
19. Section 23(4B) of the Act provides that a person is severely disabled if:
“(4B) For the purposes of this Act, a person is severely disabled if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind.”
Compensation provisions
20. In respect to the decision relating to compensation recovery, the relevant provisions are contained in Part 3.14 of the Act.
21. Compensation affected social security payments are listed in s 17(1) of the Act.
22. The compensation part of a lump sum is calculated according to s 17(3) and 17(4) of the Act which read:
“s 17 Compensation Recovery definitions
(3) Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(ab) 50% of the payment if the following circumstances apply:
(i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(b) if those circumstances do not apply--so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn, or both.
(4) Where a person:
(a) has received periodic compensation payments; and
(b) after receiving those payments, receives a lump sum compensation payment (in this subsection called the LSP ); and
(c) because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment -- RPCP ) equal to the periodic compensation payments received;
then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:
LSP – RPCP”
23. Section 1169 of the Act prohibits the payment of compensation-affected payments during the lump sum preclusion period:
“s 1169 Compensation affected payment not payable during lump sum preclusion period
(1) If:
(a) a person receives or claims a compensation affected payment; and
(b) the person receives a lump sum compensation payment;
the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.
(2) In this section:
"lump sum compensation payment" does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.”
24. The lump sum preclusion period is calculated according to ss 1170(1) and 1170(4) of the Act, which read:
“s 1170 Lump sum preclusion period
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
”
25. Sections 1178 and 1179 provides for the repayment of compensation-affected payments where a lump sum has been paid, and the amount to be recovered.
“s1178 Repayment of amount where both lump sum and payments of compensation affected payment have been received
(1) If:
(a) a person receives a lump sum compensation payment; and
(b) the person receives payments of a compensation affected payment in relation to a day or days in the lump sum preclusion period;
the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.
(2) The amount to be specified in the notice is the recoverable amount under section 1179.
s1179 The section 1178 recoverable amount
The recoverable amount under this section is equal to the smaller of the following amounts:
(a) the compensation part of the lump sum compensation payment;
(b) the sum of the payments of the compensation affected payment made to the person in relation to a day or days in the lump sum preclusion period. “
26. The secretary may disregard some compensation payments in special circumstances.
“s 1184K Secretary may disregard some payments
(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case. “
27. In relation to the compensation recovery decision, I have to decide whether as a result of receiving a lump sum compensation payment, a recoverable debt arises as a result of newstart and DSP payment received by Ms Stankovic, and if so, whether any part of the debt can be waived.
28. In relation to the portability, I have to decide the period if any for which DSP was payable to Ms Stankovic whilst she was overseas.
EVIDENCE OF THE APPLICANT
29. Ms Stankovic has provided written correspondence[12] and provided oral evidence to the Tribunal in person at the hearing. The following is the gist of her oral evidence:
[12] Exhibits 3-7.
30. In relation to the portability claim, Ms Stankovic said that she was forced to stay away from her home in Australia from 4 September 2007 to September 2008 as her daughter, whom she is dependant on, needed to travel overseas for personal reasons. As she did not have an alternative carer, Ms Stankovic said she had no choice but to accompany her daughter.
31. Ms Stankovic claimed that she was not given the appropriate information relating to the portability rules prior to leaving Australia. Ms Stankovic said that the information provided by Centrelink lead her to believe that she would be entitled to payment whilst overseas because she is severely disabled.
32. Ms Stankovic emphasised that she was severely disabled and claimed that she was terminally injured. When asked by the Tribunal if she had a terminal illness, Ms Stankovic was evasive, however when reminded that she was under oath, said that she did not.
33. In relation to the compensation payment, Ms Stankovic insisted that the lump sum payment she received was $50000, not $93000. She came to this conclusion after deducting the workcover costs from the total compensation payment.
34. Ms Stankovic said that she was blackmailed by her lawyers to agree to the compensation payment offered. She said that they threatened that if she did not sign she would have to pay them $20000. Ms Stankovic said that she had not commenced proceeding against her lawyers, as no solicitor would work against another.
35. Ms Stankovic said that her compensation payment has to cover all her costs, living and medical expenses for the rest of her life, and that the amount is inadequate given her inability to work.
36. Ms Stankovic said that her compensation payment was inadequate for the additional reason that it considered her likely income until the age of 60, however it is reasonable to have expected that but for her work related injury she would have worked until the age of 65 when she would have qualified for the aged pension.
37. Ms Stankovic said that it was inappropriate that she should have to justify how she spent the compensation money, as prior to receiving the compensation payment, things for herself and her daughter had been very difficult, and there were occasions when there was only bread and butter and water in the fridge.
38. Ms Stankovic considered that it was not fair to expect her to sell her home to provide funds to live on, as she purchased that house with money from the sale of the home that she inherited from her mother in Belgrade. Ms Stankovic estimated that her home was worth $250 000. She said that it was in poor condition as she had not been able to afford to maintain it. She owes $15000.
39. Ms Stankovic said that she is suffering from depression, that her general practitioner had prescribed antidepressants, and she had an appointment to see a specialist on 6 October 2008.
40. Ms Stankovic said that she is currently receiving widow allowance.
FINDINGS OF TRIBUNAL
Compensation Repayment
Does a debt to the Secretary arise as a result of Ms Stankovic receiving a compensation payment?
41. Where a person received lump sum compensation certain social security benefits, including DSP and newstart allowance, are not payable during what is called the ‘lump sum preclusion period’ (LSPP)[13].
[13] Social Security Act 1991 ss1169, 17(1), 23(1).
42. Ms Stankovic received a compensation payment of $50000 plus a workcover refund of $43650.79[14]. Ms Stankovic contends that the lump sum component of her payment was $50000.
[14] Exhibit 1: T13 folio 65.
43. In the decision of Cunneen[15] the Federal Court made it clear that a lump sum payment cannot be dissected into the constituent parts when applying the compensation provisions. The Secretary has therefore correctly regarded the gross settlement figure to be $93 650.79.
[15] Department of Social Security v Cunneen (1997) 78 FCR 576; (1997) 149 ALR 665.
44. In order to calculate the LSPP the Act deems that the compensation part of a lump sum compensation payment is 50% of the payment[16]. The only allowable deduction is periodic compensation that must be repaid because of lump sum payment[17], which in this case was $38 068.32[18]. This means that Ms Stankovic’s gross lump sum was 50% of $55 582.47[19] which is $27 791.23.
[16] Social Security Act 1991 s 17(3).
[17] Social Security Act 1991 s17(3).
[18] Exhibit 1: T11, folios 56-62
[19] $93 650.79 – $38 068.32 = $55 582.47
45. The length of LSPP is calculated by dividing this sum ($27 791.23) by the ‘income cut out amount’[20], which in this case is $602[21], the result of which is 46 weeks.
[20] Social Security Act 1991 ss1170, 17(8).
[21] Exhibit 2, Attachment D.
46. The LSPP commences on the day following the last day of periodic payments period[22], which in this case was 31 October 2001[23]. The period of LSPP therefore commences on 1 November 2001, and ends on 18 September 2002.
[22] Social Security Act 1991 s1170(1).
[23] Exhibit 1: T18 folio 120.
47. Ms Stankovic contends that she was not paid Newstart allowance until 14 November 2001. Centrelink records indicate that whilst that was the first date Ms Stankovic received payment, the first day of the period for which she received newstart allowance was 1 November 2001[24].
[24] Exhibit 1: T37 folio 187.
48. During the LSPP period Ms Stankovic received a total of $9562.06 by way of a combination of newstart and DSP benefits. This amount is the total of the ‘compensation affected payments’ received by Ms Stankovic, and the amount that is recoverable under the Act[25] as a result of Ms Stankovic receiving a lump sum compensation payment for her work related injury.
Are there special circumstances, which allow all, or part of the compensation to be treated as though it has not been made?
[25] Social Security Act 1991 s1184(1)
49. There is a discretion in the Act for the Secretary to treat the whole or part of a compensation payment as not having been made if the Secretary thinks that it appropriate to do in the special circumstances of the case[26].
[26] Social Security Act 1991 s 1184K.
50. Whilst special circumstances are not defined in the Social Security (Administration Act) 1999, the approach to be taken in interpretation and application of the discretionary provisions have been dealt with by the Tribunal and the Federal Court in numerous circumstances.
51. In Re Beadle and Director-General of Social Security[27] it was said,
“The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the content in which they occur. For it is the content, which allows one to say that the circumstances in one case are markedly different from the usual, run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special”.
[27] (1984) 6 ALD 1 at 3.
52. In Dranichnikov v Centrelink[28] the Full Federal Court when considering the meaning of special circumstances observed:
“….what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that take the case out of the ordinary…”
[28] (2003) 75 ALD 134 at 148.
53. Ms Stankovic pointed to a number of reasons as to why she felt her circumstance was exceptional, including her being blackmailed by her lawyers, the unfairly small amount of compensation that she received, her ill health and her financially strained circumstances.
54. Misleading legal advice has been considered as a possible factor in special circumstances in other decisions. In Re Hajar[29] pecuniary loss resulting from misleading advice was not regarded as a special circumstance as recovery from such loss was within the applicant’s power. Ms Stankovic has not commenced any proceedings against her lawyers. Further, I am not persuaded that Ms Stankovic has actually suffered any pecuniary loss as a result of her lawyer’s advice. Correspondence from Nicol Robinson Lawyers indicated that they regarded the lump sum settlement offered to Ms Stankovic as a likely more favourable settlement than would likely be achieved by trial[30]. There is no evidence that supports Ms Stankovic’s claim that she was incorrectly advised or that she received less than she would have received had her matter proceeded to trial.
[29] Re Hajar and Secretary, Department of Social Security [1988] AATA 787 (23 Dec 1988).
[30] Exhibit 1: T7 and T10.
55. Financial hardship has been considered as a possible component of special circumstances in a number of decisions. It is well established that by itself, hardship is not enough[31], and that financial circumstances must be more than straitened, they must be exceptional[32].
[31] Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 4.
[32] Re Domenico Colaiacolo and Secretary to the Department of Social Security [1985] AATA 91 (24 April 1985), Groth v Secretary Department of Social Security (1995) 40 ALD 541.
56. Ms Stankovic, aware of her obligation to repay Centrelink nearly $10000[33], proceeded to spend her settlement moneys on non-essential requirements including travel, gifts, repayment of her already very small home loan, and the purchase of a computer.
[33] Exhibit 1: T7.
57. Ms Stankovic argued that her trip to Serbia was necessary because, as a severely disabled person, she is dependant on her daughter for care, and as her daughter found it necessary to travel overseas, she had no choice but to accompany her. A person is severely disabled for the purposes of the Act, if due to their health impairments they are unable to work and unable to benefit from participation in rehabilitation, for at least two years. It is not in dispute that Ms Stankovic is severely disabled for the purposes of the Act, however that does not suggest that she is dependant on others for care. Ms Stankovic told the Tribunal that her daughter refused to test her eligibility for carers’ allowance, as this would have disrupted her full time studies. Whilst I accept that Ms Stankovic receives assistance with her day-to-day activities from her daughter, I am not convinced that she is unable to function without that assistance in her daughter’s absence.
58. Ms Stankovic argued that the purchase of a computer was necessary for her daughter’s studies. I note that Ms Stankovic’s daughter is of an age not usually considered dependant. Her daughter apparently found the means to return to Serbia when she felt it necessary. I do not accept that Ms Stankovic’s purchase of a computer or her decision to return to Serbia represents necessary expenditure.
59. Ms Stankovic’s spending of the money she received from her compensation payment is inconsistent with a conclusion that she was suffering financial hardship.
60. Following the receipt of her lump sum payment Ms Stankovic continued to receive income support payment until she was absent from Australia for more than 13 weeks. Ms Stankovic returned to Australia in September 2008 and is currently in receipt of widow’s pension.
61. Ms Stankovic owns her own home, which she believes is worth $250000. After receiving the lump sum compensation, Ms Stankovic repaid $8000 on her home loan, and she now owes only $15000, her necessary monthly repayment is $164.00[34]. I agree with the Secretary’s contention that it is inequitable for an applicant to claim financial hardship when they own a valuable asset such as a house, and did nothing to realise it, particularly when the reduction of encumbrances had been bought about by the diversion of some of the compensation moneys, as was the case here. This was the approach taken in Re Hajar[35], and is consistent with the approach of the Tribunal in other cases with similar circumstances[36].
[34] Exhibit 1: T16.
[35] Re Hajar and Secretary, Department of Social Security [1988] AATA 787 (23 Dec 1988).at 45.
[36] Re Secretary, Department of Social Security and Ronald Joseph Haining [1992] AATA 130; (1997) 67 SSR 960, Re Lazarov and Secretary Department of Family and Community Services [2004] AATA 743 (15 July 2004).
62. For all of these reasons I find that Ms Stankovic was not and is not suffering severe financial hardship.
63. The Secretary contends that ill health is often expected and certainly not unusual in a person who has received compensation payments. I agree that Ms Stankovic’s health is not a reason to apply special circumstances, as it is not unusual for a woman of her age who has received a compensation payment to have the health limitations that she has.
64. The intention of the Compensation provisions is that those who receive a lump sum compensation payment are expected to support themselves from their own resources for a period before seeking support from the taxpayer. The application of s 1184K of the Act in these circumstances would be inappropriate as it would frustrate the purpose of the legislation.
65. I consider that Ms Stankovic’s circumstances cannot be defined as unusual, uncommon or exceptional and there is no reason to injustice or unfairness in Ms Stankovic serving the compensation preclusion periodic and is therefore not appropriate that any of the lump sum compensation payment received by her be disregarded.
Decision 2 – portability
66. Since 1 July 2004, s 1217 of the Act has provided that DSP can only be paid while a person is absent from Australia for 13 weeks.
67. It is possible under s 1218AA of the Act for a person to be paid DSP for unlimited time whilst overseas, provided, amongst other things, the person is terminally ill.
68. The term terminally ill is not defined in the Act. The Secretary has published a Guide to the Social Security Law that assists decision makers to reach consistent and principled decisions. It is well settled that this Tribunal may rely upon such policy statements provided that they are not inconsistent with the legislation.
69. The Guide indicates that the correct interpretation of that term requires a finding that the person has a life expectancy of less than two years[37]. In Re Foster[38] the Tribunal considered that terminally ill means that a person is in the last stages of a fatal disease.
[37] Exhibit 1: T3, folio 32.
[38] Re Ian Foster and Secretary Department of Employment and Workplace Relations [2006] AATA 983 (21 Nov 2006).
70. Ms Stankovic has denied being terminally ill and the evidence points to being severely disabled, but not in the last stages of a fatal disease. There is no evidence that suggests Ms Stankovic has a life expectancy of less than two years. It was Ms Stankovic’s evidence that when she left Australia she intended to be away for one year.
71. Ms Stankovic does not satisfy the requirements of s 1218AA, and she was not prevented from returning to Australia for any of the reasons provided in section 1218C. She was therefore not entitled to DSP after she was absent from Australia for more than 13 weeks.
72. Ms Stankovic argued that she was entitled to unlimited portability due to Clause 135 of Schedule 1A of the Act. Clause 135 is a savings provision introduced when the changes to portability were introduced on 1 July 2004. It allowed certain people to keep unlimited portability periods. It reads as follows:
“Clause 135 Unlimited maximum portability period for disability support pension
(1) The Secretary may determine that a person’s maximum portability period for disability support pension is an unlimited period if:
(a) at the commencement of this clause, the person is absent from Australia and receiving disability support pension; and
(b) under this Act as in force immediately before the commencement, that absence could not affect the person’s right to continue to be paid the disability support pension throughout the period of that absence; and
(c) after the commencement, the person enters Australia but does not become an Australian resident again.
(2) The determination has effect for the purposes of Part 4.2 of this Act as it applies in relation to an absence after the person’s entry, despite the repeal and substitution of items 2 and 3 of the table in section 1217 of this Act by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.”
73. Ms Stankovic gave evidence today that she was not absent from Australia on 1 July 2004. Clause 135 of Schedule 1A therefore does not apply to Ms Stankovic.
CONCLUSIONS
74. The decision to recover compensation affected payments totalling $9562.06 for the period 1 November 2001 to 18 September 2002 was correct, and no special circumstances exist that could justify some or all of the payments being disregarded.
75. Ms Stankovic is not terminally ill and does not meet the legislative requirements for portability of DSP.
FINDINGS OF THE TRIBUNAL
76. The Tribunal affirms the decisions under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .........................[Sgd].....................................................
Elizabeth Young, Research AssociateDate/s of Hearing 25 September 2008
Date of Decision 8 October 2008
For the Applicant the Applicant was self represented
For the Respondent Mr M Amundsen, departmental advocate
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