Vella and Secretary, Department of Social Services (Social services second review)

[2017] AATA 333

Vella and Secretary, Department of Social Services (Social services second review) [2017] AATA 333 (15 March 2017)

Division	GENERAL DIVISION
File Number	2016/1721
Re	Christine Vella
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	15 March 2017
Place	Melbourne

The Tribunal varies the decision under review to provide that the period of suspension for Ms Vella’s disability support pension is from 28 September 2015 to 16 November 2015 (dates inclusive); and the Tribunal otherwise affirms the decision under review.

[sgd]...................................................

Senior Member A Poljak

SOCIAL SECURITY — disability support pension (DSP) — maximum portability period of 28 days exceeded — suspension of DSP — whether reason to extend maximum portability period — death of family member — family member’s death did not occur during relevant period of absence — decision varied concerning dates of suspension period but otherwise affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 34J
Social Security Act 1991 ss 1215, 1217, 1218AA, 1218AAA, 1218C
Social Security (Administration) Act 1999 s 80

REASONS FOR DECISION

Senior Member A Poljak

15 March 2017

1. Mrs Vella is in receipt of the disability support pension (DSP).  This matter concerns the decision of the Department of Human Services (Centrelink) to suspend Mrs Vella’s DSP when she was overseas during the period 28 September 2015 to 16 November 2015 (the relevant period). The decision to suspend payment was made on 28 September 2015. Mrs Vella requested a review of the decision, and it was affirmed by an authorised review officer of Centrelink on 22 December 2015.

2. On 3 March 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the decision of the authorised review officer (the reviewable decision). Mrs Vella now seeks review in the General Division of the Tribunal.

3. By consent of the parties, this matter was determined without a hearing and was heard on the papers pursuant to 34J of the Administrative Appeals Tribunal Act 1975.

   Relevant Legislative Provisions

4. Section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) allows for a payment to be suspended or cancelled if they are no longer qualified to receive it, or if it is no longer payable to them.

5. Chapter 4, Part 4.2 of the Social Security Act 1991 (Cth) (the Act) sets out the provisions relating to overseas portability of social security payments.

6. Section 1217 of the Act provides that, unless a person is severely impaired (section 1218AAA) or has a terminal illness (section 1218AA), the maximum period for which a person can be paid DSP while temporarily overseas is 28 days, whether those days are consecutive or not, in a 12 month period (the portability period). Section 1215 of the Act provides that where a payment has a portability period and a person exceeds that portability period, that payment is no longer payable to them.

7. Part 4.2, Division 2, Subdivision B of the Act sets out a number of exceptions to the rules regarding portability periods. Relevantly in this case, section 1218C(1) of the Act provides that the Secretary may extend a person’s portability period for the payment of DSP if the Secretary is satisfied that the person is unable to return to Australia because of any of the following relevant 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;

   …

8. Section 1218C(2) provides that the Secretary must not extend the person’s portability period under subsection 1218C(1) unless:

   (a)the event occurred or began during the period of absence;…

   Consideration

9. Centerlink records show that Mrs Vella travelled overseas temporarily to Malta on two separate occasions since January 2015. The first trip was for 35 days from 9 January 2015 to 15 February 2015 (first trip). The second trip was from 28 September 2015 to 16 November 2015 (second trip).

10. On 8 January 2015, Mrs Vella called Centrelink to discuss the portability of her pension. On the same day, Centrelink advised Mrs Vella in a letter, that she would only be paid her entitlements outside of Australia up to 6 February 2015. Mrs Vella did not request a review of this decision or an extension of her overseas portability, even though her mother passed away in Malta on 17 January 2015, during the first trip. In any event, I am not able to review the decision to suspend Mrs Vella’s DSP from 6 February 2015, as this is not the application before me.

11. These proceedings only concern the suspension of Mrs Vella’s DSP during the relevant period, namely the second trip to Malta.

12. While section 1218C of the Act allows for the extension of the portability period in circumstances where the death of a family member prevents a person from returning to Australia, Mrs Vella’s mother passed away during her first trip to Malta in January 2015, not during the second trip.

13. Mrs Vella’s evidence before the SSCSD was that she returned to Malta in September 2015 to attend to her mother’s affairs. She said the aged care home where her mother was residing was still charging her account even though her mother had passed away in January 2015. She also needed to attend to other affairs as a result of her mother’s death, such as returning the keys to her leased apartment. Mrs Vella told the SSCSD that she had no family in Malta to take care of these matters.

14. There is no reason for me to disbelieve that the purpose of Mrs Vella’s trip to Malta in September 2015 was to deal with her late mother’s affairs, however, this is not a relevant event specified under section 1218C of the Act. Pursuant to section 1218C(2), the portability period cannot be extended because the death of Mrs Vella’s mother did not occur during the period of absence in September 2015.

15. Since Mrs Vella has not satisfied one of the relevant exceptions in Part 4.2, Division 2, Subdivision B of the Act for her travel in September 2015, her application cannot succeed.

    Decision

16. The SSCSD notes that the relevant period of suspension and Mrs Vella’s travel overseas was from 28 September 2015 to 17 October 2015. This is incorrect. Centrelink’s records confirm that the relevant period of Mrs Vella’s travel overseas was from 28 September 2015 to 16 November 2015. This accords with the decision of the authorised review officer made on 22 December 2015 (the decision reviewed and affirmed by the SSCSD).

17. Therefore, I vary the decision under review to provide that the period of suspension for Ms Vella’s disability support pension is from 28 September 2015 to 16 November 2015 (dates inclusive); and I otherwise affirm the decision under review.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

[sgd].........................................................

Associate

Dated 15 March 2017

Date of hearing on the papers

30 January 2017

Applicant

Self-represented

Solicitor for the Respondent

Mr T Noonan

Department of Human Services,
Freedom of Information & Litigation Branch