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

This case concerned an application by ZVJQ for an extension of the portability period for her Disability Support Pension (DSP). ZVJQ departed Australia on 5 November 2019 and was due to return on 5 January 2020. Her DSP was suspended on 3 December 2019 when her initial portability period expired, and subsequently cancelled on 3 March 2020. ZVJQ sought an extension of the portability period from 3 December 2019 until her return to Australia on 22 June 2020, arguing that a medical condition prevented her from travelling. The matter came before the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether discretion should be exercised under section 1218C of the Social Security Act 1991 (Cth) to extend ZVJQ's DSP portability period. This required determining if ZVJQ was unable to return to Australia due to a serious illness that occurred or began during her period of absence, and specifically, during the initial portability period. The Tribunal also considered the impact of the COVID-19 pandemic on ZVJQ's ability to return to Australia, although the central focus remained on the medical condition preventing travel.

The Tribunal found that ZVJQ suffered from a chronic degenerative lumbar spine disease, and that she experienced a back spasm around 26 November 2019, which was conceded by the respondent as not being a pre-existing or foreseeable event. The Tribunal accepted that this back spasm would have prevented her from travelling for a period. Applying section 1218C, the Tribunal determined that the back spasm constituted a serious illness that prevented ZVJQ from returning to Australia. The Tribunal varied the decision under review, exercising its discretion to extend the portability period for six weeks from 26 November 2019 to 8 January 2020, finding this period aligned with the evidence regarding her inability to travel. The decision under review was otherwise affirmed.