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

Suchkova and Secretary, Department of Social Services (Social services second review) [2018] AATA 1277 (11 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6958
Re:Liudmila Suchkova

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:11 May 2018
Place:Sydney

The decision under review is affirmed.
....................[sgd]................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – applicant’s disability support pension cancelled because she was not qualified for the payment – whether indefinite portability provisions apply – severely impaired disability support pensioner provision – terminally ill disability support pensioner provision – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42C
Social Security (Administration) Act 1999 (Cth) s 80(1)
Social Security Act 1991 (Cth) ss 23(4B), 94(1), 94(3B), 1212, 1217, 1218AAA(1), 1218AA(1)
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
11 May 2018
INTRODUCTION

For the purposes of the matter before me, the facts may be briefly stated as follows.
The Applicant, Mrs Liudmila Suchkova who was living in the Northern Territory, suffered a stroke in January 2016. She was discharged from the Royal Darwin Hospital on 10 May 2016 and was given further rehabilitation treatment.
On 27 May 2016, Mrs Suchkova contacted the Department of Human Services which is better known as Centrelink to inquire about receiving Disability Support Pension (DSP). Subsequently she made a claim for DSP.
However, on 14 July 2016 Centrelink rejected her application.
MRS SUCHKOVA APPEALS AGAINST THE REJECTION OF HER DSP CLAIM
Mrs Suchkova challenged the decision to reject her claim for DSP. She unsuccessfully appealed to an Authorised Review Officer (ARO) and then to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
Mrs Suchkova then appealed to the General Division of the AAT which is known as an AAT second review (AAT2).
On 22 May 2017, the AAT2 approved a consent agreement between the parties under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth).
The matter was remitted to the Secretary with directions that Mrs Suchkova satisfied section 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the SS Act) as at the claim date of 27 May 2016.
The actual words of the consent agreement are important. It relevantly provides as follows:
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides that:
1. The reviewable decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 8 December 2016, is set aside.
2. The matter is remitted to the Respondent for reconsideration with directions that the Applicant satisfied the requirements of subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 as at the date of claim, 27 May 2016.
Dr I Alexander, Member
Note:
It is noted that the parties have agreed that, subject to the Applicant satisfying any other qualification or payability requirements, the claim of 27 May 2016 is to be granted.
The note at the foot of the consent agreement shows that Mrs Suchkova fulfilled the medical criteria for DSP. However, there was no agreement that Mrs Suchkova currently satisfied the residency requirements for DSP.
MRS SUCHKOVA TRAVELS TO RUSSIA
On 5 September 2016, Mrs Suchkova’s son Mr Denis Suchkov contacted Centrelink explaining that Mrs Suchkova intended to travel to Russia. Mr Suchkov informed Centrelink that Mrs Suchkova intended to return to Australia at some time between 10 March 2017 and 8 September 2017.
Mrs Suchkova left Australia on 9 September 2016.
At that time, Mrs Suchkova had been receiving NewStart Allowance (NSA). However, Centrelink suspended and then cancelled her NSA because without more, NSA cannot be paid to persons outside Australia.
Mrs Suchkova returned to Australia on 21 January 2018. On 8 February 2018, Mrs Suchkova made a fresh claim for DSP.
MRS SUCHKOVA’S DSP IS CANCELLED
In accordance with the consent agreement which had been approved by the AAT2 on 22 May 2017, Mrs Suchkova was paid DSP.
However, on 27 June 2017, Mrs Suchkova’s DSP was cancelled.
MRS SUCHKOVA APPEALS AGAINST THE CANCELLATION OF HER DSP
Mrs Suchkova has brought proceedings against the cancellation of her DSP. She unsuccessfully sought review from an ARO and then from an AAT1.
Mrs Suchkova now appeals to this Tribunal.
THE HEARING
The date of the hearing was 4 May 2018.
Mr Denis Suchkov who is Mrs Suchkova’s son appeared at the hearing by telephone from the Russian Federation where he is residing. He was assisted by an interpreter in the Russian language. Mr Suchkov represented Mrs Suchkova and made submissions on her behalf.
On two occasions, the Tribunal attempted to telephone Mrs Suchkova who is currently residing in the Northern Territory with her former husband. However, on both occasions the mobile numbers of Mrs Suchkova and of her former husband were not answered.
CONSIDERATION
The sole issue before the Tribunal is whether Centrelink correctly cancelled Mrs Suchkova’s DSP on 27 June 2017.
It will be recalled that pursuant to the consent agreement dated 22 May 2017, Mrs Suchkova was paid DSP. However, she was only paid up until 7 October 2016, this being 28 days after 9 September 2016 when Mrs Suchkova departed Australia for Russia.
International social security agreements between Australia and other countries usually permit recipients of DSP to receive payments without any temporal limitations when residing in those countries. However, there is no international social security agreement between the Russian Federation and Australia.
Therefore, the relevant provisions governing absences from Australia for recipients of DSP which are applicable to Mrs Suchkova are to be found in Part 4.2 of the SS Act.
The general rule which is set out in section 1217 of the SS Act, is that recipients of DSP can only receive payment when they are outside Australia for 28 days; that is, for four weeks during any rolling period of 12 months.
Therefore, on 30 May 2017, Centrelink wrote to Mrs Suchkova seeking further information as she had been outside Australia for eight months.
Question 1 in the attached questionnaire was as follows: “You left Australia on 9 September 2016 – please advise if your departure is permanent or temporary.”
On 9 June 2017, Centrelink received a reply from Mr Denis Suchkov who is Mrs Suchkova’s son. Mr Suchkov wrote in part as follows: “Liudmila [that is his Mother Mrs Liudmila Suchkova] got progressive, a life threatening, chronic, incurable diseases… Liudmila is unable to return to Australia because of health condition”. The letter went on to detail some of the medical treatment which Mrs Suchkova was receiving in Russia.
As I noted above, Mr Suchkov contacted Centrelink on 5 September 2016 stating that Mrs Suchkova intended to return to Australia at some time between 10 March 2017 and 8 September 2017. Mrs Suchkova did not return by 8 September 2017. She returned on 21 January 2018.
The 4^th paragraph of the letter from Centrelink dated 27 June 2017 cancelling Mrs Suchkova’s DSP read as follows: “your DSP has now been cancelled as you have not returned to Australia within 13 weeks of your payment ceasing.”
At that time, Mrs Suchkova had been absent from Australia for nine months.
DID CENTRELINK HAVE POWER TO CANCEL MRS SUCHKOVA’S DSP?
Centrelink cancelled Mrs Suchkova’s DSP pursuant to section 80(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
Section 80(1) provides as follows:
(1)       If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)       Who is not, or was not, qualified for the payment; or
(b)       To whom the payment is not, or was not, payable;
The Secretary is to determine that the payment is to be cancelled or suspended.
The Guide to Social Security Law which is online, sets out Government policy on the application of social security law. In relation to Mrs Suchkova’s circumstances, section 7.1.2.10 is relevant. It is headed “General Rules of Portability”. It relevantly provides as follows:
From 1 January 2015, DSP recipients (not granted indefinite portability) can generally only be paid for 4 weeks, in a 12-month period, of a temporary absence and should be cancelled immediately if advised that their intention is to depart permanently.
Counsel for the Respondent argued that having regard to Mr Suchkov’s letter which was received by Centrelink on 9 June 2017, his words can be taken to show that Mrs Suchkova intended to depart Australia permanently.
Given that English is not Mr Suchkov’s mother tongue, I am reluctant to find that this letter should be taken as showing that Mrs Suchkova intended to depart Australia permanently. After all, she did return to Australia on 21 January 2018.
I do find that the Secretary did have power to cancel Mrs Suchkova’s DSP pursuant to section 80(1) of the Administration Act if on that date Mrs Suchkova was not qualified to receive DSP. Unless Mrs Suchkova comes within the indefinite portability provisions, it is clear that on 27 June 2017 she was not qualified to receive DSP. Although the cancellation letter dated 27 June 2017 spoke of Mrs Suchkova being absent from Australia for 13 weeks, she had been absent for nine months. Neither Mrs Suchkova or her son had provided Centrelink with a definite date on which Mrs Suchkova would be returning to Australia.
In Mrs Suchkova’s circumstances there are two relevant provisions in the indefinite portability rules.
First, if a recipient of DSP is a severely impaired disability support pensioner, she or he may receive DSP for an unlimited period when outside Australia.
Second, if the recipient of DSP is a terminally ill disability support pensioner, she or he has indefinite portability.
THE SEVERELY IMPAIRED DISABILITY SUPPORT PENSIONER PROVISION
The term “severely impaired disability support pensioner” is defined in section 1212 of the SS Act as follows:
severely impaired disability support pensioner means a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1).
Section 1218AAA(1) of the SS Act is as follows:
(1) The Secretary may make a written determination 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 receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
It will be recalled that section 1218AAA(1)(b) refers to a severe impairment as defined in section 94(3B) of the SS Act. Section 94(3B) is as follows:
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The Impairment Tables are to be found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).
Section 1218AAA(2) of the SS Act sets out the very limited circumstances when the Secretary may make a section 1218AAA(1) determination when a person is outside Australia.
Section 1218AAA(2) is as follows:
(2)       The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)       the person is unable to return to Australia because of either of the following events:
(i)        a serious accident involving the person;
(ii)       the hospitalisation of the person; and
(b)       the person’s portability period for disability support pension had not ended at the time the event occurred.
In Mrs Suchkova’s circumstances, the Secretary only had power to make a written determination granting her indefinite portability under section 1218AAA(2) of the SS Act if she had suffered a serious accident or had been hospitalised in the 28 day period from 9 September 2016 to 7 October 2016.
There is no evidence before the Tribunal that Mrs Suchkova suffered a serious accident during this period.
Mr Denis Suchkov wrote a letter to the Tribunal which was received on the day before the hearing, that is on 3 May 2018. In this letter, Mr Suchkov conceded that Mrs Suchkova has not been hospitalised. He wrote in part as follows:
(Liudmila [that is his Mother Mrs Liudmila Suchkova] was not hospitalised but hospitalisation happened many times according to the nature of diseases. Liudmila was receiving medical services as outpatient regularly: therapist, cardiologist, neurologist, psychologist, except exercise therapy, regular MRI, health resort as it’s not accessible due no DSP and no money for all of med. Services It’s extremely dangerous to stop this services!)
From this letter, it is clear that Mrs Suchkova has received outpatient treatment in Russia but has not been hospitalised.
Therefore, there was no power for the Secretary to make a written determination under section 1218AAA(2) of the SS Act.
THE TERMINALLY ILL OVERSEAS DISABILITY SUPPORT PENSIONER PROVISION
The term “Terminally ill overseas disability support pensioner” is defined in section 1212 of the SS Act as follows:
terminally ill overseas disability support pensioner means a person who qualifies for disability support pension because all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Section 1218AA(1) of the SS Act is as follows:
(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.
Section 1218AA(1)(a) concerns a person who is severely disabled. This term is defined in section 23(4B) of the SS Act as follows:
(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.
Mr Suchkov submitted that Mrs Suchkova was terminally ill within the meaning of section 1218AA(1)(c) of the SS Act. It is not necessary for me to make a finding on the nature of Mrs Suchkova’s illness. This is because it is clear that Mrs Suchkova does not come within section 1218AA(1)(d) of the SS Act. Paragraph (d) requires that Mrs Suchkova’s absence from Australia to be permanent. As Mrs Suchkova has been residing in Australia since 21 January 2018, section 1218AA of the SS Act is inapplicable to her.
CONCLUSION
As Mrs Suchkova does not come within the two relevant indefinite portability provisions, I find that on 27 June 2017 she was not qualified for DSP. Mrs Suchkova had been absent from Australia for nine months. Neither Mrs Suchkova or her son had provided Centrelink with a definite date of her return to Australia. I find that the Secretary had ample power to cancel Mrs Suchkova’s DSP on 27 June 2017 pursuant to section 80(1) of the Administration Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

......................[sgd]...............................................
Associate
Dated: 11 May 2018

Date(s) of hearing: 4 May 2018

Advocate for the Applicant: D Suchkov

Solicitors for the Respondent: Department of Human Services

[2018] AATA 1277

11 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Date(s) of hearing:	4 May 2018
Advocate for the Applicant:	D Suchkov
Solicitors for the Respondent:	Department of Human Services