Editors --- "Disability Support Pension: Australian residency; date of effect of cancellation" [2013] SocSecRpr 2; (2013) 15(1) Social Security Reporter, Article 2

• COLE and SECRETARY TO THE DFaHCSIA
• Background
• Issues for determination
• Residency
• Date of effect of cancellation decision
• Formal decision

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Disability Support Pension: Australian residency; date of effect of cancellation

COLE and SECRETARY TO THE DFaHCSIA

(2012/2902)

Decided: 8th September 2012 by K.S. Levy

Background

Cole was granted disability support pension for a back condition in 2007. Since January 2006, he had travelled overseas on multiple occasions each year. Since mid-2009, he had spent considerably longer overseas on each occasion and travelled more frequently each year. Essentially, since that time, he had returned to Australia every 13 weeks for very brief periods but had lived the majority of that time outside of Australia. He had a wife and a very young child and lived in Java, Indonesia. He confirmed this to Centrelink on 7 April 2011 and mentioned that he had an Indonesian business. After a change to the requirements for disability support pension, he was no longer regarded as being a resident of Australia. His pension was then cancelled with effect from 5 February 2012. On appeal, an authorised review officer affirmed that decision. An appeal to the Social Security Appeals Tribunal (SSAT) was also unsuccessful with the additional outcome that the SSAT regarded the effective date of cancellation as being 1 July 2011, being the effective date of the statutory amendment affecting residency requirements. Cole appealed to the AAT.

Issues for determination

There were two issues for determination: firstly whether Cole was an Australian resident for disability support pension purposes, in particular whether he was residing in Australia; secondly the correct date for the cancellation of his pension, if he was not an Australian resident.

Residency

The AAT found that Cole had no accommodation in Australia, no contact with his family in Australia, he had no assets, employment, business or financial interests in Australia. He now lived in Java and had for some years only visited Australia briefly. He had an intention to return to Australia at some indeterminate time in the future. The AAT concluded that he could not be regarded as residing in Australia and was therefore not an Australian resident for social security purposes. This was the case from 1 July 2011 when new law took effect requiring residency as a qualification for disability support pension. Section 80 of the Social Security (Administration) Act 1999 required his pension to be cancelled where he was not qualified.

Date of effect of cancellation decision

Centrelink’s decision to cancel his pension was by way of the Secretary’s decision of the 9 November 2011. However, the cancellation was to take effect from 5 February 2012 which was designed to provide a period for people to adjust their life circumstances before the effective date of cancellation.

The SSAT decided to implement the decision to cancel the pension with effect from 1 July 2011, the commencement date of the amending legislation.

The AAT stated that the date of effect was to be determined by reference to s.123(1) of the Social Security (Administration) Act 1999. That section provides that a social security payment will continue until a further determination is made under s.80. That determination is an ‘adverse determination’, which is defined in s.118(13) of the Social Security (Administration) Act 1999. Section 118(13) provides that the date of effect of such a determination is to be either:

...

the day the determination is made; or

a later day specified in the determination, on that day.

The Secretary submitted that these provisions required that the date of effect of the cancellation determination must be 5 February 2012. The AAT agreed that the decision to cancel disability support pension was an adverse determination, and that in accordance with s.118(13), the effective date must be 5 February 2012.

Formal decision

Therefore the AAT determined that:

1) Cole was not an "Australian resident" and therefore was not entitled to disability support pension; and

2) The effective date of the cancellation was 5 February 2012, the date the Secretary originally specified in the decision of 9 November 2011.

[A.T.]