Toseska and Secretary, Department of Family and Community Services

[2005] AATA 386

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1378

GENERAL  ADMINISTRATIVE DIVISION

Re:         LILJANA TOSESKA

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Associate Professor J.H. Maynard, Member

Date:             2 May 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) J.H. Maynard

Member

SOCIAL SECURITY – maximum portability period for disability support pension – whether limited to 13 weeks

Administrative Appeals Tribunal Act 1975ss 3(3), 37

Social Security Act 1991 ss 1217, 1218AA

REASONS FOR DECISION

2 May 2005  Associate Professor J.H. Maynard, Member

1. This is an application by Miss Liljana Toseska (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 November 2004. The SSAT affirmed the decision of an authorised review officer of Centrelink dated 11 October 2004, to refuse to make a determination under s 1218AA of the Social Security Act 1991 (the Act) that Ms Toseska's maximum portability period for the disability support pension (DSP) is an unlimited period.

2.      At the hearing on 24 March 2005 the applicant represented herself and Ms E. King, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T14) (the AAT Act). The applicant tendered the following documents:

·   a letter dated 16 March 2005 from Dr Economidis of the Altona Medical Centre, listing Ms Toseska's recent attendances at the clinic (Exhibit A)

·   a letter dated 3 March 2005 from Dr Peter Andrianakis of The Western Medical Centre, setting out Ms Toseska's diagnosis of rheumatoid arthritis and her current medication of Naprosyn and Salazopyrin (Exhibit B)

·   the Treating doctor's (Dr Andrianakis) report dated 24 February 2005, (Exhibit C)

ISSUES TO BE ADDRESSED BY THE TRIBUNAL

4.      The issues in this case are:

·   whether the advice sent to Ms Toseska on 11 October 2005 constitutes a decision under the Act

·   if so, what is the maximum period of portability for the DSP paid to her?

BACKGROUND

5.      The applicant has been in receipt of DSP since 8 September 1994 (T3).  On 4 October 2004 she advised Centrelink that she would be departing Australia on a permanent basis as of 1 December 2004 (T6 pp20‑21).

6.      On 11 October 2004, Miss Toseska was sent a letter by Centrelink stating that she could be paid DSP until 2 March 2005 and that DSP would be cancelled if she were to go overseas after that date (T7).

7.      Miss Toseska was living in Australia on 1 July 2004 and does not suffer from a terminal illness.

8.      On 27 October 2004 the decision was affirmed by an authorised review officer (T11).

9.      On 8 November 2004 Ms Toseska applied to the SSAT.  The SSAT affirmed the decision (T3).

10.     Miss Toseska applied to the Administrative Appeals Tribunal on 20 December 2004 for review of the SSAT decision (T1).

EVIDENCE

11.     Miss Toseska gave oral evidence to the Tribunal that, when in Australia, she lives with her niece and, when in Macedonia, she lives with her sister.  She said neither arrangement was permanent.  In neither country did anyone look after her on a permanent basis.  She told the Tribunal she could not live by herself because her rheumatoid arthritis restricted her ability to perform tasks and she was afraid she might collapse.

12.     Ms Toseska was extremely distressed with her current situation in that she had no one to care for her and felt her situation was hopeless.  She was unaware that the law had changed in July 2004.  She stated that she could not afford to travel every 13 weeks between Australia and Macedonia, and needed a period of portability of her DSP that was longer than 13 weeks.  Miss Toseska was obviously distressed when giving her evidence, but was coherent and presented her argument fully.  She understood the expression "terminally ill" to mean the last stages of a fatal disease and she said she was not terminally ill.

CONSIDERATION OF ISSUES

13. The first issue is whether the advice in the letter from Centrelink to Miss Toseska on 11 October 2004 constitutes a decision under the Act. If she had left Australia on 1 December 2004 and remained outside Australia after 2 March 2005, her DSP would cease because of s 1218AA of the Act. This section specifically defines whether a person's maximum portability period for DSP is an unlimited one and overrides the general provisions regarding whether a decision has been made.

14.     A decision is defined under s 3(3) the AAT Act as:

(a)making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)imposing a condition or restriction;

(e)making a declaration, demand or requirement;

(f)retaining, or refusing to deliver up, an article; or

(g)doing or refusing to do any other act or thing.

15.     The advice in the letter of 11 October 2004 to Miss Toseska is a decision.  However, it is a decision that depends upon certain events occurring, i.e. her going overseas and remaining overseas beyond March 2005.  That does not make it any less a decision.  It is a decision that I may review.

16.     The second issue is whether a DSP may have indefinite portability.  Miss Toseska is of the belief that her DSP has indefinite portability.  The letter of 14 October 2004 imposes a condition or restriction on portability.

17.     Therefore, the Tribunal is satisfied that it has jurisdiction on the appeal.

18. Section 1217 of the Act provides that DSP has a maximum portability of 13 weeks, unless 1218AA applies. Section 1217(1) provides:

(1)               The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a)the payment (as specified in column 2 of the table); and

(b)the class of persons to which the person belongs (as specified in column 3 of the table).

19.     Section 1218AA was introduced into law by Schedule 3 of the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.   Section 1218AA of the Act provides:

(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.

20. For the portability period to be unlimited, Miss Toseska must satisfy each of the criteria in s 1218AA(1) of the Act. I am satisfied that Miss Toseska suffers from migraines and rheumatoid arthritis. However, I am satisfied she is not terminally ill, that is she is not in the "last stages of a fatal disease" as is ordinarily understood by those words (Shorter Oxford English Dictionary). Therefore, she does not satisfy s 1218AA(1)(c) and, it follows, that she cannot satisfy s 1218AA(1).

21. As Miss Toseska cannot satisfy s 1218AA(1), she cannot have unlimited portability of her DSP. She is entitled to be paid for a maximum period of 13 weeks while she is overseas, pursuant to s 1217 of the Act.

22.     The savings provisions applying to persons who were overseas on 1 July 2004 do not apply to Miss Toseska as she was not overseas on 1 July 2004.

23.     For these reasons, the Tribunal is satisfied that the portability of Miss Toseska's DSP cannot be extended beyond the 13 weeks.

DECISION

24.     The Tribunal affirms the decision under review.

I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of

Associate Professor J.H. Maynard, Member

(sgd)     Catherine Thomas

Clerk

Date of Hearing:  24 March 2005

Date of Decision:  2 May 2005

Advocate for the applicant:        Self‑represented

Advocate for the respondent:     Ms E. King