Trepic and Secretary, Department of Family and Community Services

[2005] AATA 710

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/19

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIRKO TREPIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date27 July 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – applicant left Australia to reside overseas – maximum portability – portability limited to 13 weeks – decision affirmed

Social Security Act 1991 ss 1217, 1218

REASONS FOR DECISION

27 July 2005   Senior Member L Hastwell  

1.      On 20 July 2004 Centrelink made a decision that a 13 week maximum portability period would apply to payment of Disability Support Pension (DSP) to the applicant during any future absences overseas.  An Authorised Review Officer affirmed this decision on 27 October 2004.  The Social Security Appeals Tribunal (SSAT) considered the matter, and on 17 December 2004 they affirmed the decision under review.  The applicant seeks a review of that decision.

legislation

2. The relevant legislation to consider is contained in ss 1217(1), 1217(4) and 1218AA of the Social Security Act 1991 (the Act).

3. Section 1217 of the Act sets out the maximum portability period for various benefits by reference to a table at the end of that section, which provides as follows with respect to DSP:

“Portability of social security payments

Column 1      Column 2      Column 3      Column 4      Column 5
Item               Payment        Person          Absence        Maximum
  portability

period

3                  Disability        All persons     Any absence   13 weeks (but see
  support   also section

pension  1218AA)”

4. Section 1218AA(1) of the Act provides for extended portability in certain circumstances as follows:

“1218AA(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.”

issues

5.      The issue for the Tribunal to determine in this case is whether the applicant’s DSP is portable for a period of more than 13 weeks.

evidence

6.      The applicant represented himself before the Tribunal with the assistance of an interpreter in the Serbian language.  Mr Goldie, a Departmental advocate, represented the respondent (the Department).  Various exhibits were received into evidence, including the T documents as Exhibit R1. 

7.      The applicant told the Tribunal that he had been a recipient of DSP since 1987.  In 2000, he and his family travelled to reside in Bosnia Herzegovina (Bosnia), and the Department approved indefinite portability for his DSP, due to his medical condition.

8.      The family sold their house in Australia, which had only a small mortgage on it at the time, and shipped their possessions overseas in a container.  When they reached their destination, the applicant’s DSP did not arrive, and after four months overseas, he had still received no payments.  Prior to his departure he had arranged that cheques would be sent to him in Bosnia.  He made numerous calls to the Hobart office of Centrelink in an attempt to resolve the issue.  They kept promising that the cheques would be sent, but no cheque ever arrived. 

9.      Because they could not afford to live in Bosnia without the DSP, the family returned to Australia and then could not afford to return to Bosnia once more at that point in time.  They shipped the container of possessions back to Australia at considerable expense, and they sustained significant financial losses over this episode.  They remained in Australia until the applicant’s doctor once more advised him that for the sake of his health he should return to live in Bosnia.

10.     On 16 February 2004 the applicant advised Centrelink that he intended to leave Australia on 5 May 2005, to reside in Bosnia.  He was told that he could travel overseas, that his DSP would be indefinitely portable, and that it would be paid by cheque while he was overseas.  This was confirmed in a letter to him.  He was adamant that he was advised that he could return to Australia any time as a visitor, and he understood that the only limitation upon the portability of his DSP was that if he subsequently requested that the DSP be paid back into an Australian bank account, then he may not be able to take it overseas again.

11.     When the applicant returned to Bosnia in May 2004, his wife remained in Australia with the children.  Once more, he was advised payments would be made by cheque, and he anticipated a first payment in early to mid June 2004.  It did not arrive.  He contacted his 20 year-old son in Australia, who advised him that his DSP was still being paid into his Australian account.  He returned to Australia immediately to rectify the problem.

12.     The applicant returned to Australia on 18 June 2004, and had some contacts with Centrelink, including advising them of the address that cheques were to be sent to.  He then advised Centrelink that he intended to return to Bosnia on 21 July 2004.  He was then told on 20 July 2004 that he could only receive his DSP overseas until 20 October 2004, being for a period of 13 weeks.  He left Australia, and returned on 8 October 2004, as he cannot afford to live in Bosnia without his DSP.

13.     The applicant was adamant that he had been “tricked” by the Department, and that because he had been granted indefinite portability on his DSP in the year 2000 and again in early 2004, he should be entitled to that indefinite portability once more. 

14. The Department’s position was that amendments to the Act, which reduced the portability of DSP, took effect from July 2004 and meant that the applicant was ineligible for anything other than 13 weeks of portability of DSP because he was physically present in Australia on 1 July 2004. He did not fit the criteria for extended portability set out under s 1218AA of the Act, and in particular he was not terminally ill, which is one of the mandatory qualifying requirements set out in s 1218AA(1)(c) of the Act for indefinite portability to apply.

findings of fact and application of the law

15.     The applicant was emotional in giving his evidence, and suspicious of the system that had granted him indefinite portability, and then, in his mind, taken it away from him for no good reason.  There was no reason to disbelieve any aspect of his evidence, and the records of his contacts with the Department contained in the T documents, and also independently submitted as Exhibit R2, confirmed various contacts with the Department with respect to the issue of portability. 

16.     It is not disputed that the applicant was granted indefinite portability of his DSP in 2000.  He returned to Australia after four months because of his concern about the non-receipt of payments.  It is difficult to understand why the entire family returned at that time at considerable expense.

17.     The applicant lost a considerable sum of money when he returned to Australia on that occasion because of the travel and relocation expenses, and it would appear that the family is in a worse financial position now because of their decision to return to Australia at that time.

18.     The applicant has significant health problems, and his doctor recommended once more that he return to reside overseas indefinitely in 2004.  A report of Dr Prasad dated 7 June 2005 [Exhibit A2] confirms that he is a “highly depressed man with polyarthritis” and in his opinion would be better off returning to Bosnia.

19.     After his departure from Australia once more in May 2004, the Department advised him that he would be entitled to indefinite portability once more.  Exhibit R2 showing the communication with the applicant of 16 February 2004, confirms this advice.  It also confirms that he was to be paid by cheque every four weeks in Bosnia. 

20.     The applicant returned to Bosnia on 5 May 2004.  He expected his first payment to arrive in the first half of June, and when he discovered that it was still being paid into his Australian bank account, he returned to Australia on 18 June 2004.  He was present in Australia on 1 July 2004, and did not return to Bosnia again until 21 July 2004.

21.     The applicant suffers from significant depression and polyarthritis, which is not a terminal illness. 

22.     The law in this case is clear.  In the year 2000 when the applicant was granted indefinite portability, the Act provided for the same.  In 2004 when he decided to travel overseas once more, there was still provision for indefinite portability, and had he been outside Australia on 1 July 2004, his indefinite portability would have continued.  Clause 135 of the savings provisions at Schedule 1A of the Act empowers the delegate to determine an unlimited portability period for a person whose DSP was payable indefinitely before the commencement of the 2003 changes to portability.  Nevertheless, for this savings provision to apply, there was a requirement that the applicant be “absent from Australia” at the commencement of the clause, ie at 1 July 2004.  The applicant does not come within the savings provision as he was in Australia at the time.

23. The only other provision that may provide for unlimited portability is set out in s 1218AA of the Act. A person must satisfy all of the criteria in the section to qualify for unlimited portability. Section 1218AA(1)(c) of the Act provides that one of the criteria required is that the person is terminally ill. The applicant does not satisfy this criterion, he is not terminally ill.

24.     The Tribunal has some sympathy for the applicant, although his decision to return to Australia in June 2004 appeared premature, given that it was only a first payment that had been missed, and even then only by a few days.  Nevertheless, his depression and anxiety related to the prior departure from Australia, possibly precipitated this hasty return to rectify his pension payments with the Department.  The applicant has made decisions on two separate occasions that have not been to his financial advantage.  It is unfortunate that the applicant returned when he did and was present in Australia on 1 July 2004.

25.     The Tribunal is satisfied that Centrelink were slow in processing the movement of the applicant’s DSP from the domestic to the international section, and as a result of these delays, the applicant returned to Australia with the consequence that he now has reduced his portability of his benefit to 13 weeks in the event of him going overseas again.

26.     The Tribunal was advised by the Department that there are other people who have found themselves in this situation where the savings provisions did not apply to people who were visiting Australia at the time that the new provisions came into effect.  Physical presence in Australia at the critical date has resulted in significant loss of benefit to the applicant.  Nevertheless, the legislation is plain and unambiguous.

27.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  14 July 2005
Date of Decision  27 July 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr A Goldie
Solicitor for the Respondent     Centrelink Legal Services Branch