AAT Rules Man Must Wait 2 Years.www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2014/378.html?stem=0&synonyms=0&query=portability
Van den Berg and Secretary, Department of Social Services [2014] AATA 378 (17 June 2014) I'll show the key parts of the case. ISSUES
Substantive Issue Section 1220(1) of the Act provides relevantly that if an Australian resident ceases to be a resident, then again becomes a resident, but leaves Australia within two years of being granted an age pension, the pension is not payable during any period which the person is outside Australia.
There is no dispute that Mr Van den Berg was an Australian resident within the terms of the Act before his departure for the Philippines on 22 February 2010; nor that he became a resident again on his return to Australia on 26 August 2013. Mr Van den Berg also states that he departed Australia again on 5 October 2013, which is within two years of the granting of his age pension.
The substantive issue to be determined is whether Mr Van den Berg ceased to be an Australian resident when he was in the Philippines between 22 February 2010 and 25 August 2013 (the relevant period).
Compensation Issue In both his written and oral submissions Mr Van den Berg has claimed that, at the time he advised Centrelink of his intention to return to the Philippines, he was not told of the impact this would have on the payment of his age pension. This issue is considered separately below.
EVIDENCE FOR THE APPLICANT Mr Van den Berg said that, after returning to Australia in August 2013, he attended an interview with a Centrelink officer. He told the officer that he only had $3,000 in a bank account on which to live. He also told the officer that he was going back to the Philippines in October 2013. However, the officer had not advised him that he would lose his age pension if he were to return to the Philippines within two years of being granted the age pension.
Mr Van den Berg said he was totally broke, disabled, in circumstances of extreme hardship, and he relied on help from friends for his medications. He said his situation was hopeless and felt he was being punished by Centrelink.
In response to questions from Mr Noonan, Mr Van den Berg said he married a Filipina (in the Philippines) in 2009 or 2010 but separated from her in early 2013. He met another Filipina in June 2013 and moved in with her and her family. Subsequently, he received a call from one of his sons to tell him that his father, living in Australia, was ill. Mr Van den Berg said two of his sons assisted him with the costs of flying back to Australia to see his father.
After receiving the call from his son, Mr Van den Berg spent all his remaining money to rent a small house in the Philippines, not far from where he was living with his lady friend. He said he did this because he was a burden on the others in a very small house, and also he could no longer climb the stairs. He said he wanted a place to come back to.
With regard to his family relations, Mr Van den Berg said he had excellent relations with two of his sons, but not with the third. He said he got on well with his father, who has recently passed away. When asked whether his sons in Australia know of his circumstances in the Philippines, Mr Van den Berg said that they could not support him financially, nor assist with further travel back to Australia, as they had their own expenses to meet.
In regard to his situation in the Philippines, Mr Van den Berg said that after meeting his lady friend in June 2013 he moved in with her but now lives somewhere else. She visits him daily to care for him. The same lady travelled to Australia with Mr Van den Berg in August 2013.
Mr Van den Berg confirmed he had no assets in Australia and he sold most of his belongings in the Philippines in order to survive. He now has only a few things left to him by his mother. When asked about his travels, Mr Van den Berg confirmed that he was in the Philippines during the relevant period. He returned to Australia on 26 August 2013 and travelled back to the Philippines on 5 October 2013.
TRIBUNAL CONSIDERATIONS The issue in this case is whether Mr Van den Berg ceased to be an Australian resident when he was in the Philippines during the relevant period. In deciding whether or not he is residing in Australia, section 7(3) of the Act requires me to have regard to:
(a) The nature of the accommodation used by him in Australia (s.7(3)(a));
(b) The nature and extent of the family relationships he has in Australia (s.7(3)(b));
(c) The nature and extent of his employment, business or financial ties with Australia (s.7(3)(c));
(d) The nature and extent of his assets located in Australia (s.7(3)(d));
(e) The frequency and duration of his travel outside Australia (s.7(3)(e)); and
(f) Any other matter relevant to determining whether he intends to remain in Australia (s.7(3)(f)).
I will consider each issue in turn.
Accommodation in Australia Mr Van den Berg’s evidence is that he sold his interest in an Australian property in 2009, which was prior to his departure for the Philippines. On his return to Australia, he lived with his father. In the Philippines, he lived with a lady friend and her family. Prior to returning to Australia he leased a house in the Philippines to go back to. In a statement to a Centrelink officer he said that he intended to live in the Philippines.
Family relationships Mr Van den Berg said that his father had been living in Australia but has recently passed away. Mr Van den Berg’s visit to Australia in August 2013 was to see his father who was ill at the time.
Mr Van den Berg has three sons living in Australia. He has excellent relationships with two of them, but not with the third.
Despite the fact that his father and sons lived in Australia, Mr Van den Berg intended to live in the Philippines.
Employment, business and financial ties Mr Van den Berg stated that he has no employment, business or financial ties with Australia. He keeps open one bank account in case he should need it for the receipt of any benefits. However, there is no money in the account.
Assets Mr Van den Berg stated he has no assets in Australia.
Travel outside Australia Mr Van den Berg confirmed that he travelled to the Philippines on 22 February 2010 and returned to Australia on 26 August 2013. He also confirmed that he left Australia again on 5 October 2013 and has been in the Philippines since then.
Other matters relevant to an intent to return to Australia In his oral evidence, Mr Van den Berg confirmed the statement he made previously to a Centrelink officer that he ... intends returning to live in the Philippines 25/9/2013 and that will be his base. He will travel back to Australia from time to time to visit family. He also stated that he rented the house in Philippines to go back to and that he enjoys living in the Philippines.
Findings on the substantive issue
In Hafza v Director-General of Social Security [1985] FCA 164; [1985] 6 FCR 444 (Hafza) at 449, Wilcox J said:
The test is whether the person has retained a continuity of association with the place ... together with an intention to return to that place and an attitude that that place remains “home”.
In the case of Secretary, Department of Families, Community Services and Indigenous Affairs and Baccon [2006] FCA 773 (Baccon) at [9], Branson J said:
However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home ....
Mr Van den Berg has not shown that he has retained a continuity of association with Australia. He took his belongings to the Philippines and spent all his remaining money in renting a house there to come back to. He declared that he intended to return to Australia from time to time only to visit family. He showed no attitude that Australia, for him, remains home (Hafza). During the relevant period, he neither showed nor declared an intention to return and treat Australia as home (Baccon).
I find that during the relevant period Mr Van den Berg was not residing in Australia as defined in sections 7(2) and 7(3) of the Act. Therefore, I find that Mr Van den Berg ceased to be an Australian resident during the relevant period. As a result, Mr Van den Berg’s situation meets the conditions of section 1220(1) of the Act, and his age pension is not payable during any period during which he is outside Australia.
Accordingly, I find that the decision to suspend Mr Van den Berg’s age pension was correct.
Findings on the Compensation Issue Mr Van den Berg asserts that the Centrelink officer did not tell him that his age pension would be suspended if he left Australia within two years of its commencement. He stated in evidence that had he known he would not have travelled back to the Philippines and continued to receive his pension payments.
In the Secretary’s Statement of Facts and Contentions, Mr Noonan has drawn my attention to Instruction 7.1.4 contained in the Guide to Social Security Law which includes:
... It is important to inform a recipient that there is NO discretionary power allowing portability of pensions during the first 24 months of resumed Australian residency.
On this issue the Secretary submits:
47. ...that it is open to the Tribunal to find that the department:
Was obliged to advise the Applicant of the effect on his age pension of his leaving Australia within 2 years of again becoming an Australian resident; and
Failed to so advice.
48. However, the Tribunal has no jurisdiction to determine any compensation payable consequent on such failure.”
In support of these submissions the Secretary cites the following decisions:
Milroy and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 488, paragraph 19 :
... Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by a claimant.
Bruvels and Secretary, Department of Social Services [2013] AATA 901, paragraph 8:
... However, the Guide to Social Security Law makes it clear that Centrelink staff do owe a duty of care to persons in the applicant’s position. In s [sic] 1.3.4.10 of the Guide, the following appears:
1.3.4.10 Duty of Care
What does duty of care mean?
Australian Government employees have a duty of care to the public when performing their duties. This extends to any advice offered and any actions performed.
Breaches of duty of care
A breach of duty of care can result from negligent advice and/or a negligent action.
Compensation can only be paid if the Department of Centrelink has breached its duty to exercise reasonable care ....
9. It is not clear that any breaches of duty, as set out in the Guide, occurred in this case. However, even if there were such breaches, the Tribunal does not have jurisdiction to determine compensation arrangements...
[Emphasis in original]
In considering this issue I note that Mr Van den Berg’s assertion has not been contested. On the basis of the uncontested evidence, it appears that a Centrelink officer has been negligent in not following Instruction 7.1.4 by informing Mr Van den Berg that there is no portability of the age pension during the first 24 months of resumed Australian residency. It appears further that this negligence has resulted in a breach of duty of care to Mr Van den Berg. However, following the same reasoning as in Bruvels, I do not have jurisdiction to determine compensation entitlements.
I note the advice from Mr Noonan that he has already initiated on behalf of Mr Van den Berg a claim for defective administration, the consideration of which will determine Mr Van den Berg’s entitlement to compensation in this case. I thank Mr Noonan for taking that action.
DECISION
The Tribunal affirms the decision under review.