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

[2018] AATA 4248

Sudak and Secretary, Department of Social Services (Social services second review) [2018] AATA 4248 (14 September 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1240

Re:Ewa Sudak

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date of decision:                   14 September 2018

Date of written reasons:        14 November 2018

Place:Melbourne

The decision under review is affirmed.

........................................................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – Disability Support Pension (DSP) – portability – absence from Australia for more than thirteen weeks – DSP cancelled – circumstances where period can be extended – International Agreement between Australia and Poland – exceptions where discretion can be exercised not applicable – decision affirmed - Tribunal to provide written reasons to parties

Legislation

Social Security Act 1991 (Cth), ss 7(3), 23(5D), 94, 1217, 1218, 1218A, 1218BA, 1218C, 1218D, 1218AA, 1218AAA, 1218AB
Social Security (Administration) Act 1999 (Cth), s 80
Social Security (International Agreements) Act 1999 (Cth), Sch 25

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member D. J. Morris

14 November 2018

Background

1. On 14 September 2018 the Tribunal had a hearing in relation to an application for review brought by Mrs Ewa Sudak of a decision made on 16 February 2018 by the Social Services and Child Support Division of the Tribunal (AAT1) which affirmed a decision by an Authorised Review Officer (ARO) of the Department of Human Services (the Department) to cancel Mrs Sudak’s Disability Support Pension (DSP) on the basis that she had exceeded the maximum portability period for payment as set out in section 1217 of the Social Security Act 1991 (the Act).

2. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave brief oral reasons.  The Tribunal advised parties that written reasons would be provided, and these are they.

   The hearing

3. The hearing was conducted by telephone.  The Applicant, Mrs Sudak, was in Poland.  She made submissions and gave evidence.  Her son, Mr Robert Sudak, who was visiting his mother, also gave evidence.  Mr Tim de Uray, a legal officer of the Department, made submissions and cross-examined Mrs Sudak.  The Tribunal was assisted by an interpreter in the Polish language.

4. The Tribunal received into evidence documents lodged by the Department under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) and a bundle of documents provided by Mrs Sudak on 3 August 2018 including: a letter to the Federal Member for Kingston; correspondence with Centrelink; and extracts from a medical report of Dr Andrew Czechowicz dated 15 May 2018 (Exhibit A1).

5. The Tribunal emphasised early in the hearing that the question under review was not whether Mrs Sudak was qualified for DSP, but rather whether the decision to cancel her DSP on 24 July 2015 was the correct decision in law and, if discretion was available, whether such discretion had been exercised preferably.

   What happened?

6. In 2008 Mrs Sudak was granted DSP.  On 10 June 2015 Mrs Sudak contacted the Department and advised that she intended to travel to Poland, departing on 26 June 2015.  The Secretary contended that Mrs Sudak advised, at that time, that she intended to return to Australia between 7 August and 25 September 2015, and these dates were recorded in the Centrelink computer record relating to a discussion between Mrs Sudak and the departmental officer on 10 June (T16, p 50).

7. The record of conversation includes that Mrs Sudak’s Energy Supplement can be paid outside Australia until 24 July 2015 and would be stopped on that date, and DSP “is portable until at least 24 July 2015”, and that Mrs Sudak’s Pensioner Concession Card will stay current until 24 July 2015 and will be cancelled when the DSP stops.  The record of conversation also records: “Customer declines an assessment of their current medical condition under the current medical tables.”

8. In the hearing, Mrs Sudak disputed that she had told the Department she intended to return to Australia in the time period between August and September 2015.  Nothing much turns on that, because the Tribunal had (T19, pp 56 -59) a movement record provided by the Immigration Department.  It recorded that Mrs Sudak first arrived in Australia on 12 March 1987 and last departed Australia on 26 June 2015.  She has not returned to Australia since that time and Mrs Sudak, and Mr Robert Sudak, confirmed in the hearing that these dates were accurate.

9. On 24 July 2015 the Department wrote to Mrs Sudak at her Australian address and advised (attachment B to the Secretary’s Statement of Facts and Contentions):

   Your Disability Support Pension has been stopped because our records show you are still overseas.

10. On 23 October 2015 an officer of the Department decided to cancel Mrs Sudak’s DSP and wrote to her, again at her Australian address:

    Your Disability Support Pension has been cancelled because our records show you are still overseas.

11. It would appear that on 13 October 2017, Mrs Sudak wrote to the Tribunal saying, relevantly, the following (T12, p 37):

    I’m writing in regard about my Disability Support Pension which was cancelled by Centrelink in June 2015.  I would like to ask for the reinstating of my pension, which I motivate because of the following reasons.

    As the end of June 2015 I left Australia for permanent residence in Poland, after leaving I received my last DSP payment from Australia but due to losing my health and receiving DSP in Australia I am unable to find any type of work in Poland, due to being already in retirement age for Polish women, but not having enough time spend and lived in Poland to be eligible for a Polish age Pension.

    (Emphasis added)

12. Mrs Sudak’s request was passed to the Department and the 23 October 2015 decision to cancel her DSP was reconsidered by an ARO.  The ARO wrote to Mrs Sudak on 18 October 2017 at her Polish address and relevantly said:

    ·You were granted Disability Support Pension from 19 May 2008.

    ·You have been diagnosed with dysthymic disorder, chronic right shoulder pain and frequent migraine and, these conditions are not considered severe.

    ·On 10 June 2015 you contacted the department to tell us about your plans to travel to Poland on 26 June 2015 and, you are intended to return to Australia between 7 August 2015 and 25 September 2015.

    ·The department made a determination (the original decision) on 23 October 2015 to cancel your Disability Support Pension because you were still overseas.

    ·The indefinite portability provisions do not apply and, Disability Support Pension can only be paid for 4 weeks (26 June 2015 to 23 July 2015) from the time you were considered temporarily absent from Australia.

13. Mrs Sudak requested a review of the ARO’s decision and AAT1 affirmed it on 16 February 2018.

    The legislative framework

14. Part 4.2 of the Act deals with Overseas Portability. Section 1211 provides that if the Social Security (International Agreements) Act 1999 (the International Agreements Act) applies to a payment of a social security payment to a person, Part 4.2 does not apply. The Tribunal will discuss the International Agreements Act provisions later.

15. Section 1212C of the Act sets down that ‘temporary absence’ means that a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia within the meaning of section 7(3) of the Act. Section 7(3) provides that in deciding for the purposes of the Act whether or not a person is residing in Australia, regard must be had to various factors set out including the nature of the accommodation used by the person; the nature and extent of family relationships the person has in Australia; the nature and extent of the person’s employment, business or financial ties with Australia; the nature and extent of the person’s assets in Australia; the frequency and duration of the person’s travel outside Australia; and any other relevant factor.

16. In Mrs Sudak’s case, she was widowed in Australia and decided to return to the country of her birth, Poland, where she bought a house and a motor car.  Mrs Sudak said that she used the funds from selling her South Australian residence to enable her to buy a residence in Poland.  While she states she is a dual Australian and Polish citizen, she did not indicate any intention to return to Australia, either to reside or to visit. In her letter to the Tribunal of 13 October 2017 she said she had move to Poland in 2015 for ‘permanent residence’. I am satisfied that, taking into account the considerations in section 7(3) of the Act, Mrs Sudak ceased to reside in Australia, at the latest, in late July 2015.

17. The Table at the end of section 1217 of the Act sets out that DSP is payable for a total of 28 days’ absence from Australia, whether consecutive or not, during the previous 12 months. As the movement record showed that Mrs Sudak had not been out of Australia in the 12 month period before she departed for Poland on 25 June 2015, the maximum portability period for payment of her DSP therefore commences on that date and ends on 24 July 2015.

18. Unless certain exceptions provided for in the Act are satisfied, there is no entitlement for a person’s DSP to continue after the maximum portability period has expired and the person has remained out of Australia.

19. In terms of the statutory exceptions, section 1218AAA of the Act provides that the Secretary may make a written determination that a person’s maximum portability period for DSP is for an unlimited period if, under section 1218AAA(c) of the Act, the Secretary is satisfied that the person’s impairment is a ‘severe impairment’ within the meaning of that term in section 94(3B) of the Act and, among other things, under section 1218AAA(d) the Secretary is satisfied that the severe impairment would prevent the person performing any work independent of a program of support within the next five years.

20. A ‘severe impairment’ means that a person has been allocated 20 or more impairment points under one impairment table in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.  At the time she was granted DSP in 2008, Mrs Sudak was granted, under the impairment points system then in force, her impairment was assessed as 10 impairment points under Table 3 – Upper limb function for a Shoulder and Upper Arm Disorder; 10 impairment points under Table 21 – Intermittent conditions for a Migraine condition (which she reported experiencing between two and three times a week) and zero impairment points for a Depressive condition (see Job Capacity Assessment Report dated 23 May 2008 at T3, p 11).

21. The Tribunal notes, from the record of the conversation (at T16, p 60) that on 10 June 2015 Mrs Sudak was invited to undertake a medical assessment, which would be undertaken using the current Determination for the assessment of impairment, but she declined that invitation.   There was no evidence before the Tribunal, and no contention put forward by Mrs Sudak, that she had a severe impairment at the time her DSP was cancelled. 

22. The Tribunal therefore finds that the provisions of section 1218AAA of the Act were not relevant to Mrs Sudak as at the date her DSP was cancelled.

23. The Act contains other specific provisions where a person might still be granted unlimited portability for DSP, even if the person does not satisfy section 1218AAA. Section 1218AA of the Act provides that the Secretary may grant unlimited portability if the person is terminally ill. There was no contention brought by the Applicant that this was relevant to her situation.

24. Section 1218AB of the Act allows for an extended period of portability for DSP if a person is severely disabled and wholly or substantially dependent on a family member and will be living with that family member throughout the period of absence from Australia. This is not relevant to Mrs Sudak. Although her son was with her on the day of the hearing, she said he was visiting temporarily. Mrs Sudak did not satisfy the provisions of section 1218AB of the Act at the date of cancellation.

25. There are other provisions in section 1218 of the Act providing for an exception to the limits on overseas portability where a person is undertaking full-time study overseas as part of a course offered by an Australian tertiary institution or, at section 1218A, where the person is overseas undertaking reserve service, section 1218BA relating to new apprentices, section 1218B relating to eligibility for parenting payment and section 1218D where a person’s portability period may be extended if the person is undergoing life-saving medical treatment overseas. None of these exceptions are applicable to Mrs Sudak’s circumstances.

26. The Act also includes at section 1218C provisions for the Secretary to generally extend a person’s portability for DSP if certain following events have occurred:

    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.

27. AAT1 recorded that Mrs Sudak told the Member that, when she left Australia, she had no intention of returning and there were no events which occurred after her arrival in Poland which would have prevented her returning to Australia before her period of portability expired on 24 July 2015. No submissions were made by the Applicant at this hearing that any of the circumstances listed in section 1218C of the Act were relevant to her. The Tribunal therefore finds that the discretion available in this provision is not enlivened.

    The Social Security Agreement between Australia and Poland

28. The International Agreements Act has, at Schedule 25, an Agreement between Australia and the Republic of Poland. At Article 2 of that Agreement, Australian benefits payable to recipients resident in Poland are restricted to age pension and the superannuation guarantee. The Agreement does not include the Australian DSP.

29. Mrs Sudak was born in June 1956. Under section 23(5D) of the Act, the age at which a woman born between 1 July 1955 and 31 December 1956 reaches pension age (i.e. the age where the person may be eligible for age pension) is 66 years and 6 months. Having not yet attained that age, she is not eligible for the Australian age pension at present. The Tribunal notes (A1) that Mrs Sudak states she contacted ZUS, which she advises is the Polish Government agency responsible for social security benefits. She states that she eventually was able to receive, through ZUS, a “very small age pension in Poland which is only 500 PLN per month, that’s about 185AUD per month”.

30. Mrs Sudak, in her written submissions and in oral evidence, set out that after her husband died and she made the decision to relocate from South Australia to Poland, the funds she had in Australia went to buying a house in Poland.  Mrs Sudak states that, of late, she has resorted to selling possessions to make ends meet, because she was struggling to pay for utilities and household costs.  She said that, up until now, she has been living off her savings.  Mrs Sudak states that the pension is payable to Polish women from the age of 60 but she has been advised by the Polish Government agency that she is not eligible owing to her ‘working life’ being in Australia.  The Tribunal does note that Mrs Sudak’s first arrival in Australia appears to be in March 1987, when she was aged 30, so she may have worked in Poland before that date.

    Conclusion

31. While sympathetic to the personal circumstances Mrs Sudak finds herself in, the Tribunal finds that there is no discretion able to be exercised in this matter. Mrs Sudak departed Australia on 26 June 2015 and the period of maximum portability of her DSP ended 28 days thereafter. As she remained absent from Australia, her DSP ceased to be payable. In this circumstance, under section 80 of the Social Security (Administration) Act 1999, the Secretary must suspend or cancel the payment.  The decision made to suspend, and then cancel, Mrs Sudak’s DSP was therefore correct in law.

32. The Tribunal has examined the statutory exceptions which can allow unlimited or extended portability of DSP in particular circumstances, but none of these exceptions has been found to be relevant (and, indeed, none of them was cited by Mrs Sudak as being relevant to her circumstances).  In addition, where the Secretary is empowered to make a written determination to extend the portability period, that would normally need to be sought by the person holding a DSP, or an agent authorised to act on that person’s behalf, and no such determination was sought by Mrs Sudak, or anyone for her.

33. Unfortunately for Mrs Sudak, the Social Security Agreement between Australia and Poland, as outlined above, does not extend to the Australian DSP.  Although this is not a matter before the Tribunal, the Secretary in her written submissions stated, at paragraph 43:

    It is submitted the Applicant may qualify for age pension under the Polish Agreement in the future; and at a time when she attains age pension under social security law.

34. Therefore, the only suggestion the Tribunal can make is that Mrs Sudak test her eligibility for the Australian age pension when she attains pension age under the Act, which in her case, as set out above, is 66 years and 6 months.

35. In addition, as mentioned in the hearing, given her advice that the Polish Government has granted her a part age pension, it may be that Mrs Sudak can take this written decision to ZUS and explain that her Australian DSP was cancelled because she was absent from Australia, owing to her permanent relocation back to Poland, but her Australian DSP was not cancelled because her medical eligibility for that DSP had come into question.    

    DECISION

36. The decision under review is affirmed.

37.     I certify that the preceding 36 (thirty - six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..........................[sgd]..........................................

Associate

Dated: 14 November 2018

Date of hearing:	14 September 2018
Applicant:	Self-represented (Telephone)
Advocate for the Respondent:	Mr Tim de Uray, Department of Human Services