Editors --- "Disability support pension: whether Australian resident" [2013] SocSecRpr 9; (2013) 15(2) Social Security Reporter, Article 2

• CONFIDENTIAL and SECRETARY to the DFHCSIA
• Background
• The issue
• The legislation
• The evidence
• Consideration of the evidence
• Formal decision

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Disability support pension: whether Australian resident

CONFIDENTIAL and SECRETARY to the DFHCSIA

(2013/97)

Decided: 22nd February 2013 by K. Hogan

Background

Confidential was born in Malaysia on 11

April 1958. She arrived in Australia on 26

January 1988 and was granted permanent residency in 1996. Confidential was in receipt of disability support pension (DSP) when Centrelink decided to cancel her DSP with effect from 11 February

2012 on the basis that she was not an Australian resident. This decision was affirmed by an authorised review officer on 13 April 2012 and then by the Social Security Appeals Tribunal (SSAT) on 4 July 2012. Confidential sought a review by the AAT.

The issue

The issue to be considered by AAT was whether Confidential was an Australian resident for the purposes of the Social Security Act 1991 (the Act).

The legislation

The eligibility criteria for DSP are set out in s.94 of the Act and one requirement is that the person is an Australian resident.

The term ‘Australian resident’ is defined in ss.7(2) of the Act as a person who:

(a) resides in Australia; and

(b) is one of the following:

(i) an Australian citizen;

(ii) the holder of a permanent visa;

(iii) a special category visa holder who is a protected SCV holder.

Subsection 7(3) provides that:

In deciding ... 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 or financial ties with Australia; and

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

(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.

The evidence

Confidential told the Tribunal that she had studied and worked in Australia after her arrival in 1988. She had built a house in Perth, married and subsequently separated and divorced. On 1 February 2010, she made a claim for DSP. The claim was supported by a medical report of Dr P L Webster who confirmed Confidential’s diagnosis as Psychosis Delusional Disorder. On 10

March 2010, a job capacity assessment report was prepared by a registered psychologist who assessed her as having an impairment rating of 20 points under impairment Table 6, and decided that her prognosis was poor and that she was unlikely to be suitable for work in the foreseeable future.

The Tribunal noted that following the grant of DSP Confidential spent significant periods of time in Malaysia.

Confidential gave evidence to the AAT Decisions Tribunal that she had rented out her house in Perth on a temporary basis with the intention of returning to live there permanently when she was better. Her absences from Australia were temporary. She told the Tribunal that her mother and brother lived in Malaysia but she had no friends there. In Australia she had a cousin, his wife and family who have been supportive, as well as long- term friends. She had only ever worked in Australia and maintained a bank account, superannuation account, credit card and mobile phone in Australia. Her only assets, her furniture and personal effects were in Australia. She had no regular doctor in Malaysia and returned to see her doctors in Australia.

Confidential said that the extent and frequency of her trips to Malaysia were a consequence of her illness and she had taken the advice of her treating doctor that she needed to stay with her mother until her health improved. Confidential stated that the reason she had not disposed of her assets and personal effects in Australia was that she intended to return to Australia which she regarded as her home.

The Department conceded that Confidential held a permanent visa and satisfied the criteria under section 7(2)(b). The respondent referred to the changes to the eligibility criteria for DSP which were introduced in the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment Act (Budget and Other Measures) Act 2011 (the Amending Act) and referred to the explanatory memorandum which stated:

It is not the intention of the 13-week portability period to allow people to live overseas and return to Australia for only short periods every 13 weeks to maintain payment. The 13 week portability period is designed to allow disability support pensioners who reside permanently in Australia sufficient time to deal with personal matters that may arise from time to time overseas.

The Department contended that Confidential was not ‘attending to matters which may arise from time to time’ but was residing in Malaysia.

The Department argued that:

(a) Confidential's strong emotional ties were in Malaysia because that is where her mother lived;

(b) her house in Australia was rented out and her residential arrangements in Australia were ‘more akin to a visitor to a country’;

(c) Confidential had no business ties in Australia and her bank accounts were used extensively in Malaysia; and

(d) the amount of time she had spent in Malaysia since 2011 should be determinative of a finding that she was not residing in Australia.

Consideration of the evidence

The Tribunal referred to the statement in the decision of Wybrow and Secretary, Department of Social Security (1992) AATA 315, that when deciding whether a person was an Australian resident it was appropriate not only to consider the factors in ss. 7(3) from an Australian perspective but also from the perspective of the second country in question.

The Tribunal found that:

(a) Confidential's furniture and personal effects were in Australia and not in Malaysia;

(b) Confidential's only significant asset,

her house, was in Australia;

(c) Confidential had family in Australia

and in Malaysia; and

(d) Confidential had no financial or business ties in Malaysia.

The Tribunal was provided with medical report s from her tre ating doctors supporting her evidence that she had been advised to seek support from her mother overseas.

The Tribunal concluded that whilst Confidential had spent considerable time overseas it was not as a result of a lifestyle decision on her part but as a direct result of the illness for which she received DSP and the Tribunal was satisfied that Confidential was a resident for the purposes of ss.7(2) and (3) of the Act.

Formal decision

The decision under review was set aside. [C.E.]