Editors --- "Disability support pension: power to extend portability period where a person returns to Australia" [2012] SocSecRpr 16; (2012) 14(2) Social Security Reporter, Article 7

• SECRETARY TO THE DFHCSIA v MOURATIDIS
• Background
• The issues
• Reasoning
• Formal decision

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Disability support pension: power to extend portability period where a person returns to Australia

SECRETARY TO THE DFHCSIA v MOURATIDIS

Full Federal Court of Australia

Decided: 19th March 2012 by Gray, Flick and Reeves JJ

Background

Mouratidis was in receipt of disability support pension pursuant to the Social Security Act 1991 (the Act). On 23 May 2008 Mouratidis accompanied his 90 year old mother on a visit to Greece which was expected to be for a short period. He returned to Australia on 22 August 2008 just after the expiration of the 13 week period after which his disability support pension would have ceased to be payable.

On 12 September 2008 he returned to Greece. On 2 December 2008 his mother was diagnosed as suffering from Alzheimer's with psychotic syndrome, was assessed as needing assistance from a second carer, and was said to have become unable to travel overseas. On 9 December 2008 Mouratidis returned to Australia, and stayed until 28 December 2008 when the returned to Greece. On 12 january 2009 a psychiatrist gave an opinion that Mouratidis' mother was suffering advanced dementia and incapable of caring for herself. On 14 January 2009 she was discharged from hospital.

On 29 March 2009 Mouratidis' payments of disability support pension ceased. Mouratidis requested an extension of time in which his payments could be paid beyond the 13 week period. This was refused on the basis that his mother was hospitalised prior to his departure from Australia. The Administrative Appeals Tribunal (AAT) affirmed a decision of the Social Security Appeals Tribunal (SSAT) that Mouratidis was entitled to a continuation of the payment of his disability support pension from 29 March 2009.

In Secretary, DFHCSIA v Mouratidis (No 3) [2011] FCA 268 a single Judge dismissed an appeal by the Secretary from a decision of the AAT, finding that s.1218C of the Act did not stipulate that an application for extension of the portability period must be made or granted within any particular time, and in view of the remedial nature of the provision found that the discretion to extend the portability period would not be excluded by Mr Mouratidis' return to Australia on 9 December 2008. The Secretary then appealed to the Full Federal Court.

The issues

Division 2 of Pt 4.2 of Ch 4 of the Act contains provisions about the portability of social security payments. A person in receipt of disability support pension is entitled to continue to receive that pension if they leave Australia only for a period of 13 weeks unless that period is extended. Under s.1218C of the Act, the Secretary has a power to extend that period if satisfied that any one of a number of specified events occurred during the period of absence.

One issue for the Full Federal Court was whether the power to extend the portability period could be exercised in respect of a period of absence after the person concerned had returned to Australia and then departed again.

Another issue for the Full Federal Court was whether the worsening of the condition of Mouratidis’ mother, identified on 2 December 2008, was an event for the purposes of s.1218C of the Act.

Reasoning

In considering the power to extend a portability period found in s.1218C of the Act, the Court referred to the definition of ‘period of absence’ found in s.1213 . This definition stipulated a period of absence as a period ‘throughout which the person is continuously absent from Australia’. The Full Federal Court found that the language of s.1213 included language definite enough to mean that a cessation of absence, effected by a return to Australia would bring to an end a period of absence.

The Court noted that courts have sometimes held that a requirement that a state be maintained ‘continuously’, or be ‘continuous’ can be satisfied even though there have been interruptions to the continuity of that state. The Court found that such authorities will depend upon the particular legislative provisions in contemplation, and especially on the nature of that state that is required to be continuous, or to be maintained continuously. Finding the language of s.1213 of the Act unambiguous, the Court found that a period of absence cannot extend or be extended, after a person has ceased to be absent from Australia.

The Court considered the issue of whether the worsening of the condition of Mouratidis’ mother identified on 2 December 2008 was an event for the purposes of s.1218C of the Act, and found that the AAT had not addressed itself specifically to the question of whether that event was a cause of Mr Mouratidis being ‘unable to return to Australia’. The Court accepted the proposition that s.1218C(1) did not require that the event make it impossible for a person to return to Australia, commenting that practical inability to return, owing to the circumstances created by the event would be sufficient. Finding that no determination of fact had been made on this issue, the Court remitted the matter to the AAT for a finding as to whether the portability period commencing on 12 September 2008 should be extended on the basis of an event occurring on 2 December 2008.

Formal decision

The Full Federal Court set aside the previous decision of the single Judge and in substitution set aside the decision of the AAT and remitted the matter to the AAT to be heard and decided again, with no order as to costs. [K.W.]

Court:

Full Federal Court of Australia