Editors --- "Portability: allowable absence" [2013] SocSecRpr 1; (2013) 15(1) Social Security Reporter, Article 1

• QUENIN and SECRETARY TO THE DEEWR
• Background
• Legislation
• Discussion
• Formal decision

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Portability: allowable absence

QUENIN and SECRETARY TO THE DEEWR

(2012/916)

Decided: 19th December 2012 by A.K. Britton

Background

Quenin was in receipt of newstart allowance (‘NSA’). He was absent from Australia between 14 March 2012 and 15 May 2012, when he travelled to France to attend his father’s memorial service. Quenin’s father died approximately 9 months before Quenin travelled to France. Quenin provided the Tribunal with a medical report which stated that Quenin had been seriously ill and hospitalised around the time of his father’s death, and that he had been unfit to travel until March 2012. He also gave evidence that the sole reason he visited France was to attend his father’s memorial service and to comfort his distressed mother.

A Centrelink officer made a decision to suspend Quenin’s NSA payments during the time he was overseas. This decision was affirmed by the Social Security Appeals Tribunal (SSAT). Quenin appealed to the AAT.

Legislation

Section 1217 of the Act provides a table which sets out whether a particular social security payment is payable overseas, and also sets out any conditions for payment. Item 15 of that table applies to NSA payments and relevantly states that NSA is temporarily payable while the recipient is overseas in the following circumstances:

A temporary absence for any of the following purposes:

(a) to seek eligible medical treatment;

(b) to attend to an acute family crisis;

(c) for a humanitarian purpose.

The phrase ‘acute family crisis’ is defined in s.1212A of the Act:

Meaning of acute family crisis

(a) For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:

(a) for the purpose of visiting a family member who is critically ill; or

(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or

(c) for a purpose relating to the death of a family member; or

(d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:

(i) is facing a family member; and

(ii) is beyond the control of the family member.

Section 23(14) of the Act defines ‘family member’ to include a person’s parents.

Discussion

The Secretary contended that it was not enough that the decision-maker be satisfied that the person was absent from Australia for one of the four purposes listed in paragraphs (a) to (d) in s.1212A. The Secretary argued that the event relied upon also had to be an ‘acute family event’, and that the words ‘for a purpose relating to the death of a family member’ are to be read in the context of the provision as a whole. In essence the Secretary was arguing that there had to be some immediacy or urgency associated with the purpose and timing of the visit, and that no such urgency existed in this case, as Quenin travelled to France some 9 months after his father’s death.

The Secretary relied on the decision in Lesic and Secretary, Department of Family and Community Services [2002] AATA 651; (2002) 69 ALD 683 to support its argument. In that decision the AAT considered that taking the ashes of a family member overseas could be characterised as a ‘significant’ family event, but not as an ‘acute family crisis’.

The Tribunal in this case referred to the requirement in s.15AA of the Acts Interpretation Act 1901 that:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The Tribunal stated:

The context, general purpose and policy of the Social Security Act 199 (Cth), and s.1212A in particular, is humanitarian and beneficial. Although some parts of the Act are penal or constrictive, the policy underlying the Act and s.1212A is remedial. It follows that the classical rule of statutory interpretation- that remedial provision ought to be interpreted liberally applies to the construction. Although, in my opinion, this needs no spelling out, the provision itself is further evidence for liberal interpretation because it makes absence for a humanitarian purpose an ‘allowable absence’. [Reasons para.12]

The Tribunal considered that the plain reading of s.1212A is that an absence can be considered one constituting an ‘acute family crisis’ so long as the absence at the time was for the purpose of at least one of the qualifying events listed in paragraphs (a) to (d). The Tribunal stated that there was no need to read s.1212A in the way argued by the Secretary, which effectively added an extra requirement that the person also needed to travel because of some immediacy or urgency.

The Tribunal decided that attendance at a family memorial service, especially when the NSA recipient was not able to attend the funeral, constitutes a ‘purpose relating to the death of a family member’ and therefore satisfies s.1212A(c) of the Act. The Tribunal was satisfied on the evidence before it that, in this case, Quenin’s travel related to the death of his father. It followed that his absence for the relevant period was an allowable absence.

Formal decision

The Tribunal set aside the decision of the SSAT and in substitution decided that Quenin’s absence from Australia between 14 March 2012 to 15 May 2012 constituted an ‘allowable absence’ within the meaning of s.1217 of the Social Security Act 1991.

[D.A.]