Editors --- "Disability support pension: unlimited portability of payment, whether applicant resumed resident in Australia" [2013] SocSecRpr 31; (2013) 15(4) Social Security Reporter, Article 7

• SECRETARY to DFHCSIA
• Background
• The issue
• The law
• Discussion
• Formal decision

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Disability support pension: unlimited portability of payment, whether applicant resumed resident in Australia

SECRETARY to DFHCSIA

(2012/665)

Decided: 18th September 2013 by N. Bell

Background

Ahern had been in receipt of disability support pension (DSP) since 1992. He was diagnosed with chronic schizophrenia in 1988 and found to be severely disabled and manifestly incapacitated for work. After years of psychiatric treatment, including the use of heavily tranquilising anti-psychotic drugs, Ahern found a way of managing his illness through meditation and adherence to the teachings of Brahma Kumaris following the suggestion of one of his treating psychiatrists. It subsequently become important for him to be in India as much as possible to access their teachings and from 1993, he travelled to India frequently sometimes staying for more than one year.

From 1 July 2004, changes were made to the portability rules for DSP. Generally all payments were made portable for up to 13 weeks absence from Australia. Previously, for Ahern, payments were portable indefinitely. Savings provisions were also introduced which meant Ahern could continue with indefinite portability of pension provided he did not return to Australia as a permanent resident.

On 5 May 2007, Ahern had returned to Australia to obtain medical treatment and

had remained here since then.

In late 2010, Centrelink decided that Ahern was no longer temporarily in Australia and was instead a permanent resident. The effect of which was that he lost indefinite portability and would be subject to the 13-week limitation.

The issue

The issue in this matter was whether Ahern’s presence in Australia over the last 6 years amounted to residence.

The law

Section 7(3) of the Social Security Act 1991 (Cth) sets out a number of matters that must be taken into consideration in deciding whether a person is residing in Australia:

Australian residence definitions

........

(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a) the nature of the accommodation used by the person in Australia; and

(b) the nature and extent of the family relationships the person has in Australia; and

(c) the nature and extent of the person’s employment, business of financial ties with Australia;

(d) the nature and extent of the person’s assets located in Australia;

(e) the frequency and duration of the person’s travel outside Australia; and

(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

Discussion

The Tribunal noted that the statutory factors should not be applied in a mechanical way and that the relevance and importance of the factors will vary in

each case. Further that the factors were there as a guide and:

...... the decision-maker is also entitled to consider the converse of each factor. For example, when s 7(3) of the Act refers to ‘the nature of accommodation in Australia’, the Tribunal would be entitle to consider the nature of the applicant’s accommodation outside Australia. (Clifopoulos & Department of Social Security [1994] AATA 282; (1994) 36 ALD 745)

The Tribunal then went on to consider the factors as follows:

(i) The nature of the accommodation used by the person in Australia

The Tribunal noted that whilst in Australia Ahern was itinerant whereas in India he stayed at the same guesthouse where he had stayed for the last 15 years.

(ii) The nature and extent of the family relationships the person has in Australia

The Tribunal noted that whilst Ahern had a brother and stepmother in Australia he had not seen them since his return in 2007.

(iii)The nature and extent of the person’s employment, business or financial ties with Australia

The Tribunal noted that Ahern had not been employed for 21 years and drew no income from the trust which administered his parents’ estate in Australia. Whilst Ahern had an Australian bank account into which his DSP was paid and which he accessed whilst in India, he told the Tribunal that he planned to transfer to an ANZ account in India.

(iv)The nature and extent of the person’s assets located in Australia

The Tribunal noted that whilst Ahern had a 25% share in a property at Echuca, the subject of a testamentary trust, his attempts to realise his share had been successful.

(v) The frequency and duration of the person’s travel outside Australia

The Tribunal noted that Ahern had been spending time in India since at least 1997 and most of his absences in India were for extended periods. However, Ahern had been in Australia for the last 6 years. He initially had returned to Australia because of a heart condition and due to a miscommunication with the airline had lost his ticket to return to India. Following Centrelink’s decision to classify him an Australian resident, he had stayed on in Australia to appeal the decision.

Ahern also gave evidence of his numerous albeit unsuccessful attempts to raise the money to return to India. The Tribunal noted that his file showed that Ahern had frequently requested payments of DSP in advance and had advised Centrelink on numerous occasions that he intended to depart imminently.

(vi) Any other matter relevant to determining whether the person intends to remain permanently in Australia

The Tribunal noted that Ahern presented at the hearing as a somewhat reticent but calm and intelligent person in contrast to documents concerning his grant of DSP in 1992 which showed that his psychosis was florid and disabling. Further, Ahern gave evidence that whilst he attended the local Brahma Kumari Centre, it was no substitute for the higher spiritual advice which he had access to in India. The Tribunal also noted that Ahern had not claimed rent assistance on the basis of his view that he did not live here.

The Tribunal also noted the considerable efforts Ahern had to go to whilst in India to maintain his visa status and his evidence that he regarded India as his home.

The Tribunal referred to the case authorities noting that a person’s intention had been given considerable weight in judgments of the Federal Court and previous decisions of the Tribunal, and concluded that there was evidence of both his clear and persistent intention to return to India and the absence of ties to Australia. Accordingly, the Tribunal found that Ahern was not residing in Australia.

Formal decision

The decision under review was set aside and instead the Tribunal decided that Ahern was not an Australian resident and consequently he remained entitled to indefinite portability of his DSP.

[G.B.]