Editors --- "Disability support pension: portability; whether limited portability period could be extended" [2010] SocSecRpr 17; (2010) 12(2) Social Security Reporter, Article 3

• SECRETARY TO THE DFHCSIA and MOURATIDES
• Background
• Legislation
• Submissions
• Application of the law
• Decision

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Disability support pension: portability; whether limited portability period could be extended

SECRETARY TO THE DFHCSIA and MOURATIDES

(2010/318)

Decided: 30th April 2010 by G.L. McDonald

Background

Mouratides had been receiving disability support pension (DSP) since 1990. He also provided care for his elderly mother. On 23 May 2008 Mouratides accompanied his mother, who was then 90 years old, on a visit to Greece. Mouratides advised Centrelink that he would be travelling to Greece with his mother as her carer, as she was old and frail.

Mouratides returned to Australia on 22 August 2008. This return was just before the expiration of the 13 week period during which DSP can usually continue to be paid while the recipient is overseas. Mouratides then advised Centrelink that he intended to return to Greece on 12 September 2008 and planned to return to Australia on 12 December 2008. Centrelink sent him a letter dated 2 September 2008 stating that his pension may be reduced or stopped if his return was delayed.

On 30 October 2008 Mouratides telephoned Centrelink from Greece to obtain advice about the portability of his DSP. A record on his Centrelink file indicated that Mouratides advised Centrelink that he needed to stay on in Greece to look after his mother, although there was other family in Greece also taking care of her. The Centrelink record also said:

I told customer that we would not grant extension for him to stay and look after his mother because she wants to stay there... I told him about the legislation. Told customer that his mother has 26 weeks but he only has 13 weeks....no new medical event has occurred to prevent them from returning to au other than that mother wants to stay.

On 2 December 2008 a treating doctor in Greece certified that Mouratides’ mother was suffering from ‘Alzheimer’s Condition with Psychotic Syndrome’, that she needed assistance from a second carer and could not travel overseas. On 9 December 2008 Mouratides returned to Australia. While Mouratides was in Australia his mother was admitted to hospital in Greece after breaking her right hip. Her treating surgeon at the time certified her as also suffering age related dementia and a pneumonic condition. Mouratides again returned to Greece on 28 December 2008.

On 12 January 2009 a treating psychiatrist wrote a report stating that Mouratides’ mother was suffering advanced dementia, was bedridden and incapable of caring for herself. Mouratides’ mother was discharged from hospital on 15 January 2009.

Centrelink made a decision on 29 March 2009 to stop Mouratides’ DSP.

On 16 July 2009 Centrelink wrote to Mouratides to advise that the decision to stop his DSP was correct and that an extension of his portability period would not be granted.

Mouratides appealed to the SSAT, which decided that his DSP should continue to be paid from 29 March 2009.

The Secretary appealed to the Tribunal.

Legislation

The ‘portability’ provisions are contained in Chapter 4 of the Social Security Act 1991 (the Act) and set the conditions and time limits for payments to be made while a recipient is overseas. Section 1217 sets the time limit for the portability of DSP to be 13 weeks in most circumstances.

Extensions to the general 13 week portability period may be granted under s.1218C:

Extension of person’s portability period - general

1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following 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;

e) the person’s involvement in custody proceedings in the country in which the person is located;

f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

g) robbery or serious crime committed against the person or a family member of the person;

h) a natural disaster in the country in which the person is located;

i) political or social unrest in the country in which the person is located;

j) industrial action in the country in which the person is located;

k) a war in the country in which the person is located.

2) The Secretary must not extend the person’s portability period under subsection (1) unless:

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

b) if the event is political or social unrest, industrial action or war-the person is not willingly involved in, or willingly participating in the event.

3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.

Submissions

The Secretary submitted that an extension under s.1218C could not be granted in this case. This was because the event preventing Mouratides’returnto Australia did not occur during his absence from Australia. His mother’s condition deteriorated from November 2008, and her need for care, which was the relevant ‘event’, happened prior to his request for an extension. The Secretary relied on the Tribunal’s decision in Manolev and Secretary to the DFaCS [2005) AATA 398. Mouratides submitted that a broader interpretation of s.1218C was required and that the words ‘unable to return’ in s.1218C(1) should be construed to include a situation in which, even though the recipient was physically able to return, the family member was unable to return. In this case there was evidence that as of 12 December 2008 Mouratides’ mother was unable to travel and required the assistance of two carers. It was submitted that the ‘event’ could include the fact that when Mouratides made his third trip to Greece in December 2008 his mother’s condition began to be a continuing serious illness.

Application of the law

The Tribunal noted that there are two broad categories of ‘events’ in s.1218C, which can attract the exercise of the discretion to extend a person’s portability period. The first category includes events which make it physically impossible for the recipient to return to Australia, for example, the hospitalisation of that person or the occurrence of a natural disaster. In relation to the second category the Tribunal stated:

There are other circumstances less well defined when, because of grief or the need to provide support, the recipient may be physically able to return but there may be an expectation that, in the ordinary course of human affairs, the recipient may not be expected to return, such as following the death or serious illness of a relative abroad. (Reasons, para.24)

The Tribunal rejected the approach in Manolev, which was based on an interpretation of the word ‘events’ to mean a specific event, and not something which came on gradually. The Tribunal reasoned that this limitation did not appear in the words of s.1218C, so there was no reason to read down the section. The Tribunal further noted that the ‘occurrence’ of an illness may be understood in a way so as to take into account the time required for the illness to manifest itself.

There was no doubt in this case that Mouratides’ mother was aged and frail when she went to Greece in May 2008, and that she required a carer at that time. The Tribunal noted, however, that she was also fit enough to travel to Greece at that time. By 2 December 2008 she was certified as being unable to travel and as requiring the services of a second carer. The Tribunal regarded this assessment as indicative of a deterioration of her condition since May 2008. Her condition had changed from one in which she was merely old and frail with Alzheimer’s disease, to one in which she was seriously ill as the result of Alzheimer’s disease by December 2008.

The Tribunal accepted that the applicant’s two trips to Australia in 2008 were made in order to secure a continuation of his DSP. He was outside Australia at the time, in early December 2008, that his mother’s condition drastically worsened and she became seriously ill. The Tribunal stated, however, that it would be harsh and unreasonable that his return to Australia for the period 9 December 2008 to 28 December 2008 in order to secure the continued payment of his DSP should act to disqualify him from an extension. The Tribunal referred to three key facts that made it unfair not to exercise the discretion in this case: that it was unclear that Mouratides had even been advised of the circumstances which could have led to an extension of a portability period; that there had been further medical evidence that his mother’s condition had worsened; and that Mouratides had been advised by Centrelink in October 2008 that an application to have the portability approved would not be successful. The Tribunal thus decided that, in the circumstances of the case, the portability of Mouratides’ DSP should have been extended.

The Tribunal also considered whether a set date was required for the end of the extension period. It decided that this was not something required by the legislation, and:

There is no reason to read the terms of the provision down by imposing an arbitrary or, indeed, any limit. (Reasons, para.30)

Taking into account new evidence that Mouratides’ mother was by the time of the hearing in the terminal phase of her illness, theTribunal did not set an ‘end date’ for the extension of the Mouratides’ portability period.

Decision

The Tribunal affirmed the decision of the SSAT that Mouratides was entitled to a continuation of his DSP payments from 29 March 2009.

[D.A.]