WILLIAM BOOTH and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 373

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 373

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0774

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM BOOTH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date22 May 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................[Sgd].................

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – payments during absence from Australia – portability period limited to a maximum of 13 weeks – decision affirmed

Social Security Act 1991 (Cth), ss 23, 94, 1217, 1218AA

Disability Discrimination Act 1992 (Cth), ss 29, 45, 51

Social Security (Disabilities & Sickness Support) Amendment Bill 1991 (Cth)

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth)

REASONS FOR DECISION

22 May 2009 Mr R G Kenny, Member     

BACKGROUND

1.      Mr William Booth receives the disability support pension, a form of income support payable in accordance with the terms of the Social Security Act 1991 (“the Act”).  On 5 January 2009, Mr Booth contacted Centrelink and enquired about the continuation of the disability support pension during a period of proposed travel to China.  On 6 January 2009, a Centrelink officer determined that the portability period[1] of the disability support pension would be a maximum of 13 weeks from the date of departure from Australia.  That decision was affirmed, in turn, by an authorised review officer with Centrelink on 3 February 2009 and the Social Security Appeals Tribunal (“the SSAT”) on 17 February 2009.  The matter now comes before the Tribunal.  At the hearing, Mr Booth was not represented.  Michelle Brazier appeared for the respondent.

[1] The “portability period” is the number of weeks that disability support pension will be paid during an absence from Australia: see s 1217(4) of the Act.

ISSUES AND LEGISLATION

2. It is common ground that, at all material times, Mr Booth met the qualification requirements for disability support pension as set out in s 94 of the Act. Mr Booth intended to travel for an extended period in China. In the usual case, the maximum period of portability of the disability support pension is provided for in s 1217(1) of the Act[2]. The period is 13 weeks from the date of departure. That period may be extended under s 1218AA of the Act in circumstances where a person is severely disabled. The issue for determination is the length of the portability period in Mr Booth’s case.

[2] The portability periods are listed in a Table at the end of s 1217 of the Act.

EVIDENCE

3.      Mr Booth gave the following evidence.  He receives the disability support pension because of a range of physical and psychiatric conditions.  He planned to holiday in China for a period of 6 to 12 months and to visit certain relatives who live in that country.  Initially, he was to depart Australia in February 2009.  He deferred this until March 2009 and has again deferred departure until late May 2009.  Those deferrals have occurred because he is awaiting the outcome of the review of Centrelink’s decision.  Mr Booth agreed that China was not his country of origin, that he was not terminally ill and that he was not intending to be absent from Australia permanently.

SUBMISSIONS

4. Mr Booth accepted that s 1217 of the Act restricts the portability period for disability support pension recipients to a maximum of 13 weeks and that s 1218AA of the Act only provides limited circumstances in which portability might be extended. He noted that recipients of other forms of social security payments, such as the age pension and the wife pension, were able to have an unlimited extent of portability under s 1217 of the Act. He submitted that this amounted to unfair and discriminatory legislation against disability support pension recipients which was in breach of the Disability Discrimination Act1992 (“the Discrimination Act”). He noted that exceptions were provided in the Discrimination Act, in particular s 45 thereof, but submitted that these only applied where a benefit to a person in his position would result. He submitted that the underlying intention of the Discrimination Act was to provide protection to disabled persons. He acknowledged that limiting the period of absence from Australia to a period of 13 weeks would enable persons to engage in activities in Australia which may ultimately assist them in returning to gainful employment. However, he submitted that the removal of extended portability provided no benefit to persons who, like himself, suffered from a severe psychiatric problem and who could not, because of that condition, ever be able to engage in any education or training programs which would enable them to obtain employment. Mr Booth submitted that, because it was discriminatory, s 1217 of the Act was not applicable to him.

5. Mr Booth also submitted that s 1218AA of the Act was not applicable to his situation because it relates to the grant of unlimited extension of portability whereas, in his case, he was seeking a limited extension but one which exceeded the 13 weeks provided by s 1217 of the Act.

6. Ms Brazier submitted that ss 1217 and 1218AA of the Act were the only provisions relevant to the length of the portability period of Mr Booth’s disability support pension. She submitted that the former limited it to 13 weeks and that the latter granted an unlimited extension but only in the narrowly drawn circumstances set out in the provision. She submitted that all of those circumstances needed to be satisfied and that this was not the case with Mr Booth. Ms Brazier submitted that the purpose of placing limits on portability for disability support pension recipients was to encourage disability support pension recipients to undertake rehabilitation in Australia and to remain in Australia to contribute through employment or social participation.

7. Ms Brazier submitted that the terms of ss 1217 and 1218AA of the Act were not in breach of the Discrimination Act because they were examples of specific exceptions to that Act as provided for in s 51 thereof.

CONSIDERATION 

8.      The portability provisions in relation to disability support pension were amended by the Social Security (Disabilities & Sickness Support) Amendment Bill 1991.  In the Second Reading Speech for that Bill, it was noted that the Government’s desire in limiting portability of the disability support pension was:

“to avoid the problems of the past where, too often, income support has been seen as the final and only solution with no integration with rehabilitation or labour market assistance.  The provisions in the Bill would signify a new deal for people who are disabled or sick to help not only their participation in the broader life and work of the Australian community”[3].

[3] House of Representatives Weekly Hansard (No 10, 1991) May 31, 1991, at page 4480.

9.      This points to an increased emphasis on rehabilitation when compared with earlier approaches to disability support pension recipients.  The length of the portability period was reduced to 13 weeks in 2003 and, again, the Explanatory Memorandum to the relevant Bill notes that the purpose of the limitation period was to enable disability support pension recipients of workforce age to remain in Australia to contribute through employment or social participation[4].

10.Section 29 of the Discrimination Act reads:

“29  Administration of Commonwealth laws and programs

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability, or a disability of any of the other person’s associates in the performance of that function, the exercise of that power or the fulfilment of that responsibility”.

[4] See Explanatory Memorandum to the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (at page 39).

11. That provision is located in Part 2 of the Discrimination Act and it makes discrimination against a person on the ground of that person’s disability unlawful. However, it must be read in conjunction with other provisions in the Discrimination Act. Section 51 of the Discrimination Act is also in Part 2 thereof. In so far as relevant, it provides that Part 2 of the Discrimination Act does not affect discriminatory provisions relating to pensions, allowances or benefits in the Act. Accordingly, implementation of the provision of a portability period for the disability support pension which differs from that which applies to some other forms of income support payments, including the age pension and wife pension, is not in breach of the Discrimination Act.

12. Under s 1217(1) of the Act and the Table at the end of that provision, varying lengths of portability periods are set for various classes of social security benefits. However, these apply equally to those within a particular class of social security benefit. This includes disability support pension recipients, except those encompassed by s 1218AA of the Act. It treats those persons differently from other disability support pension recipients. However, as noted above, any such discrimination is exempted from the operation of the Discrimination Act.

13. I have noted Mr Booth’s submission in relation to s 45 of the Discrimination Act. It reads:

“45  Special measures

This Part does not render it unlawful to do an act that is reasonably intended to:

(a)ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or

(b)afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:

(i)  employment, education, accommodation, clubs or sport; and

(ii)  the provision of goods, services, facilities or land; or

(iii)  the making available of facilities; or

(iv)  the administration of Commonwealth laws and programs; or

(v)  their capacity to live independently; or

(c)afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:

(i)  employment, education, accommodation, clubs or sport; or

(ii)  the provision of goods, services, facilities or land; or

(iii)  the making available of facilities; or

(iv)  the administration of Commonwealth laws and programs; or

(v)  their capacity to live independently”.

14. Mr Booth contends that this provision enables discrimination against individuals to occur but only where it is favourable to such persons. As I understand his submission, it is that the imposition of a limited portability period on disability support pension recipients is not favourable to them and, therefore, is in breach of s 45 of the Discrimination Act. As I read that provision, it ensures that the adoption of special measures in relation to persons with a disability is not unlawful. It does not serve to make unlawful any measures that are not favourable to a person with a disability. In any event, the provisions in issue in this matter are in the Act and are exempted from the operation of the Discrimination Act[5].

[5] See above at para 11.

15. The payment of the disability support pension to Mr Booth is made in accordance with the Act. Continued payment whilst absent from Australia is governed by s 1217 of the Act. This sets the portability period at 13 weeks. That is the maximum period for which the disability support pension may be paid to Mr Booth unless the exception in s 1218AA of the Act is applicable to him. This reads:

“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 …[6]; and

[6] As defined in s 23(4B) of the Act.

(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 …[7]; or

(ii)       to return to the person's country of origin”.

[7] As defined in s 23(14) of the Act.

16. All of the qualifying circumstances of s 1218AA of the Act must be met before unlimited extension of the portability period applies under that provision. It is not in dispute that Mr Booth does not meet all of these. In particular, he conceded in his evidence that China was not his country of origin, that he was not terminally ill and that he was not intending to be absent from Australia permanently.

DECISION 

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.

Signed: ..........................[Sgd]..................................................
              Mátyás Kochárdy, Research Associate

Date of Hearing  14 May 2009
Date of Decision  22 May 2009
The Applicant was self-represented          
Solicitor for the Respondent      Michelle Brazier, Departmental Advocate