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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Toseska and Secretary, Department of Family and Community Services [2005] AATA 386
Case: [2005] AATA 386
Decision Date: 2 May 2005

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed the decision of the Social Security Appeals Tribunal, which affirmed a decision of an authorised review officer to limit the maximum portability period of Ms. Liljana Toseska's disability support pension (DSP) to 13 weeks. The applicant, Ms. Toseska, sought to have this period extended indefinitely. The central issue was whether the advice given by Centrelink constituted a decision under the Social Security Act 1991 and, if so, whether the maximum portability period for her DSP could be extended beyond 13 weeks. The Tribunal found that the advice from Centrelink did constitute a decision and that the portability period for the DSP was governed by section 1217 of the Act, which limits the portability to 13 weeks unless certain conditions under section 1218AA were met.

The Tribunal examined the criteria set out in section 1218AA, which allows for indefinite portability if the recipient is terminally ill, severely disabled, and their absence from Australia is permanent for specified reasons. The Tribunal determined that Ms. Toseska did not meet the criteria of being terminally ill. Consequently, she was not eligible for indefinite portability of her DSP. As she did not satisfy the conditions under section 1218AA, the Tribunal upheld the decision that the maximum portability period for her DSP remained at 13 weeks. The Tribunal did not find that the savings provisions, which might have applied to those overseas on 1 July 2004, were relevant to Ms. Toseska's case, as she was not overseas on that date.

The Tribunal affirmed the decision under review, concluding that Ms. Toseska's DSP portability period could not be extended beyond the statutory 13 weeks.

Orders