Tagle and Secretary, Department of Family and Community Services

[2004] AATA 100

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/238

GENERAL ADMINISTRATIVE DIVISION

Re:ERLINDA TAGLE

Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             23 January 2004

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - extension of portability of disability support pension - recipient overseas for longer than 26 weeks 

Social Security Act 1991 s1218C

REASONS FOR DECISION

23 January 2004  G.D. Friedman, Member

1.      This is an application by Erlinda Tagle (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 5 February 2003.  The SSAT  affirmed a decision of an authorised review officer of Centrelink dated 4 October 2002 to refuse to grant to the applicant a discretionary extension of her disability support pension while she was overseas. 

2.      At the hearing on 23 January 2004 the applicant represented herself and Ms K. Paul, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T43).

BACKGROUND

4.      The applicant was in receipt of disability support pension from 11 April 1991.  On 24 December 2001 she informed Centrelink that she was leaving Australia for the Philippines on 25 December 2001 and planned to return on 31 March 2002.  On 24 December 2001 Centrelink sent two letters to the applicant explaining that her pension may be cancelled if she remained out of Australia for more than 26 weeks.  On 25 March 2002 the applicant contacted Centrelink International and advised that she planned to return to Australia in September 2002.

5.      On 27 May 2002 Centrelink sent a letter to the applicant advising her that her payments would be cancelled after 24 June 2002 if she failed to return to Australia.    On 24 June 2002 Centrelink cancelled the applicant’s pension because she had been outside Australia for more than 26 weeks.  On 5 July 2002 the applicant contacted Centrelink about the cancellation and was informed that she could apply for discretionary extension of her payments.

6.      On 14 August 2002 the applicant applied for a discretionary extension of her pension.  On 19 August 2002 a Centrelink officer refused the application.  On 6 September 2002 the applicant returned to Australia, and on 4 October 2002 an authorised review officer affirmed the decision.

7.      On 9 October 2002 the applicant sought review of the decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 4 March 2003 for review of the decision.

8.      The issue before the Tribunal is whether the applicant qualifies for extension of the portability of her disability support pension.

EVIDENCE

9.      The applicant gave oral evidence that her father died in the Philippines on 24 December 2001 and she left Australia for the Philippines on 25 December 2001.  She said that before her departure she advised Centrelink that she planned to return in March 2002, but because of her sudden departure she did not receive any letter from Centrelink explaining that her pension would be cancelled after 26 weeks.  She said that she had arranged for a neighbour to collect her mail during her absence, but had not asked any family member to open the mail, as she saw no need.  Similarly she explained that she did not see a need to authorise her daughter in Australia to be able to contact Centrelink on her behalf.  

10.     The applicant told the Tribunal that on 25 March 2002 she advised Centrelink that she would not be returning until September 2002, and stated that the Centrelink officer did not inform her that her pension may be cancelled if she did not return within 26 weeks of departure.  She said that if she had known she would have returned within the 26-week period, regardless of her commitments in the Philippines, because she needed the money from her pension to pay for essential living expenses.

11.     The applicant explained that she did not return to Australia in March 2002 as originally planned because she needed to pursue a civil property matter that required her attendance in Court in Manila.  She also stated that her daughter was undergoing counselling for personal issues, and she was required to provide support during this process.  She said that she applied for discretionary extension of her pension, but did not have a sound understanding of the process at the time.  The applicant stated that Centrelink had been at fault in not advising her of the consequences of staying overseas.

CONSIDERATION OF THE ISSUES

12. Section 1218C of the Social Security Act 1991 (the Act) provides:

1218C.(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.

1218C.(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.

1218C.(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.

13.      Ms Paul submitted that, by her own evidence, the applicant was able to return to Australia within the 26-week period.  Instead, she chose to remain in the Philippines to pursue her property claim and to support her daughter’s counselling sessions.  Ms Paul stated that, as a consequence, the applicant does not meet the criteria for extension of the portability of her pension.

14.      In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

15.      The Tribunal accepts the applicant’s evidence that she travelled to the Philippines at short notice after the death of her father in December 2001, and that she informed Centrelink that she planned to return in March 2002.  The Tribunal also accepts that the applicant’s extension of her stay enabled her to attend court proceedings involving a civil property dispute, and allowed her to provide support for her daughter’s counselling sessions.  The Tribunal accepts that these events were important to the applicant at the time.

16. Although the major reason for the applicant’s visit to the Philippines was the death of a family member, the Tribunal finds, on the applicant’s own evidence, that she was able to return to Australia within a 26-week period from the date of her departure. There is no evidence that any of the events listed in s 1218C(1)(a) to (k) of the Act occurred during her stay in the Philippines (s 1218C(2) of the Act) and prevented her return to Australia.

17. For these reasons, the Tribunal is satisfied that the applicant is unable to satisfy s 1218C of the Act, and the portability of her disability support pension cannot be extended.

DECISION

18.      For reasons given orally at the hearing the Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  23 January 2004

Date of decision:  23 January 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms K. Paul, Centrelink