Svilicic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 953

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3522

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DIVNA SVILICIC

Applicant

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

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date14 December 2009

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY - overseas applicant - portability of disability support pension - applicant assessed as severely disabled - legislation changes from 1 July 2004 - rate assessed under the International Agreement with Croatia - Tribunal affirmed decision to pay DSP after thirteen weeks at the proportional rate taking account of the applicant's Croatian pension income

Social Security Act 1991 Social Security (International Agreement) Act 1991

Social Security (Administration) Act 2009

Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (No 122, 2003)

Acts Interpretation Act 1901

Makris and Secretary, Department of Family and Community Services [2005] AATA 375  

REASONS FOR DECISION

14 December 2009   Ms A F Cunningham (Senior Member)   

1.      The applicant has sought the review of a decision to pay her disability support pension (DSP) at a proportional rate thirteen weeks after leaving Australia with a  proportional reduction for her Croatian pension.  The original decision which was made on 6 April 2005 was affirmed by an authorised review officer on 5 December 2008 and by the Social Security Appeals Tribunal on 1 June 2009. 

2.      The applicant, Divina Svilicic, contends that she had not been informed of the proposed change to the legislation which affected the rate of pension payable for persons departing Australia after 1 July 2004.  Further that her departure was delayed pending confirmation of her status of severely disabled which was not received until advice in a letter from Centrelink dated 28 June 2004. 

3.      The hearing was conducted by way of telephone link to Ms Svilicic who resides in Croatia.  Ms Svilicic represented herself and her evidence was translated into the English language over the telephone by an interpreter.  The respondent was represented by Mr B Sparkes.  The T Documents were tendered in evidence.  The Tribunal also had before it the Secretary's Statement of Facts and Contentions with attachments and Ms Svilicic's letter of 14 July 2009 which set out her reasons for the appeal and the facts upon which her submissions were based.

4.      Ms Svilicici contends that she is entitled to the full amount of DSP and should not be subject to the legislative changes which affect the rate of DSP for a person departing Australia after 1 July 2004. 

5.      At the commencement of the hearing which was convened at 4.00 pm AEST on 26 November 2009, Ms Svilicic requested that the hearing be adjourned to another day as she was not feeling well and had difficulty speaking.  The interpreter also indicated that she was experiencing some difficulty hearing Ms Svilicic via the telephone link.  Audibility improved and I was able to clearly hear Ms Svilicic who did not appear to be experiencing any difficulty with her speech.   I questioned Ms Svilicic as to the issues she wished to raise at the hearing.  She said that she did not have any additional evidence to put before the Tribunal and repeated the issues that were contained in her letter of 14 July 2009 and previous advices to the respondent as contained in the T Documents.

6.      Whilst Ms Svilicic initially said that she had not received the T Documents she subsequently confirmed that she had received a bundle of documents.  When I asked Ms Svilicic to refer to T4 at page 16, she responded that her documents were not numbered and that she could not find it.  Mr Sparkes confirmed that the T Documents had been forwarded to Ms Svilicic.  Ms Svilicic's letter of 14 July 2009 refers to contents of the decisions under review and the documents relied upon by the respondent in the making of its decisions. 

7.      In accordance with the Tribunal's objective to provide a system of review that is quick, economical, informal, fair and just, I determined that it was appropriate to proceed with the hearing.  I was satisfied that Ms Svilicic had had an opportunity to present her case at that stage and would not be prejudiced or disadvantaged by my refusal to grant her application for an adjournment.

Background

8.      I determined to accept the following factual background:

§Ms Svilicic was granted DSP on 22 February 2001. 

§On 24 June 2003, Ms Svilicic was assessed as being severely disabled for pension portability purposes.  

§On 1 July 2004 Ms Svilicic was in Australia.

§On 7 July 2004 Ms Svilicic departed Australia and returned on 16 September 2004. 

§On 29 May 2005 Ms Svilicic left Australia to reside permanently in Croatia and has never returned.  Ms Svilicic now resides permanently in Croatia. 

The Legislation

9.      The applicable legislation is that contained in the Social Security Act 1991 (the Act), the Social Security (International Agreement) Act 1991 (the International Act) and the Social Security (Administration) Act 2009 (the Administration Act). The rules concerning portability of Australian social security payments are contained in Chapter 4, Part 4.2 of the Act. That part of the Act was amended by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (No 122, 2003) (the Amending Act).

10. The changes introduced by the amending Act reduced the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks. The amending Act removed unlimited portability for severely disabled DSP recipients but provided exception for persons who were terminally ill and also satisfied certain other requirements. The new provisions apply to any absences from Australia that start on or after 1 July 2004 (Clause 20(1)) of Schedule 6 of the Amending Act.

Consideration

11.     Mr Sparkes submitted that as the applicant was in Australia on 1 July 2004 she is subject to the new provisions which reduce the allowable period of portability to 13 weeks after which, the payment is subject to the portability provisions calculated according to the law of Australia.

12.     In support of his submission Mr Sparkes referred the Tribunal to the decision in Makris and Secretary, Department of Family and Community Services [2005] AATA 375 (28 April 2005). The applicant in that case was present in Australia on 1 July 2004 and found to be subject to the rules that applied from that date. The Tribunal rejected the notion that the accrued rights provisions in the Acts Interpretation Act 1901 (Acts Interpretation Act) applied and that Centrelink was under any obligation to advise a person of impending changes to the legislation. In that decision Senior Member Allen considered that Clause 20(1) of Schedule 6 of the Amending Act indicates an intention to displace the effect of section 8 of the Acts Interpretation Act  referrable to accrued rights by stating that:

"The amendments of the Social Security Act 1991 made by this Schedule apply in relation to absences from Australia that start on or after the commencement of this Schedule."

13.     Senior Member Allen doubted that at the time of the appeal the applicant had any accrued right to a continual payment of DSP beyond 13 weeks.  In the Makris decision there was no evidence that the applicant had been advised of the impending changes to the legislation.  However in the current case the Tribunal is satisfied that prior to Ms Svilicic's departure from Australia a number of letters were forwarded to her address at 31/4 Curan Street, Coolbellup in Western Australia which referred to her plans to travel outside Australia prior to 1 July 2004.  The T Documents contained copies of letters dated 3 May 2004, 10 May 2004, 16 June 2004 and 28 June 2004.  Within that correspondence Ms Svilicic was advised that any departures after 1 July 2004 would be subject to the new rules.   

14.     Ms Svilicic maintains that she did not receive any correspondence from the respondent until 29 June 2004 when it was too late to change her travel plans.  The correspondence however, refers to Ms Svilicic's plans to travel on 15 May 2004.  The Tribunal does not accept that Ms Svilicic did not receive the earlier correspondence referred to.  In any event, any failure on the part of the respondent to advise the applicant of impending changes to the legislation would not avoid the effect of the application of the legislation for the reasons outlined in the Makris decision.

Findings

15. It was not disputed that Ms Svilicic left Australia on 29 May 2005 to reside permanently in Croatia. The Tribunal accordingly finds that on 1 July 2004 Ms Svilicic was in Australia and subject therefore to the provisions of the Amending Act. The Tribunal accordingly affirms the decision under review to pay DSP at the full rate for 13 weeks following Ms Svilicic's departure from Australia and thereafter at a proportional rate under the International Agreement with Croatia which became effective on 1 July 2004.

16.     Under Article 2 the social security law applies with respect to DSP for the severely disabled.  Article 14 provides that the rate of payment for a person outside Australia is to be determined according to the legislation of Australia.  The provisions of the International Act set out the overall calculation process.  Under section 13 of Part 3 the portability rate is worked out in accordance with the period of the person's Australian working life residence.  The Tribunal accepts that this has been correctly calculated in Ms Svilicic's case at 145 months (T19 page 143 details periods of Australian presence while Australian resident).

17.     The calculation process for the rate of Ms Svilicic's DSP is set out in detail in the Secretary's Statement of Facts and Contentions.  The Tribunal accepts that the calculation process is in accordance with the International Act and further that Ms Svilicic's Croatian pension is regarded as ordinary income pursuant to the provisions of the Act and has been correctly included in the calculation process.

18.     For these reasons the Tribunal affirms the decisions under review to pay Ms Svilicic's DSP for 13 weeks following her departure from Australia and a proportional rate taking account of her Croatian pension thereafter. 

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  [R Hunt]
               R Hunt (Administrative Assistant)

Date/s of Hearing  26 November 2009
Date of Decision  14 December 2009
Solicitor for the Applicant          Applicant on own behalf
Solicitor for the Respondent     Mr B Sparkes, Centrelink Legal Services