Some Recent AAT Decisions.

[Banjo]

A member recently drew my attention to these cases.

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/722.html?stem=0&synonyms=0&query=disability%20support%20pension

AAT upholds Centrelink decision not to grant DSP on impairment table grounds.

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/712.html?stem=0&synonyms=0&query=disability%20support%20pension

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/711.html?stem=0&synonyms=0&query=disability%20support%20pension

Centrelink wins again, in both these cases psychological evidence is rejected by the AAT.

And here's a residency decision where the guy was living in Indonesia with his wife and child.

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/642.html?stem=0&synonyms=0&query=residency

INTRODUCTION

The applicant, Kenneth Cole, was granted disability support pension for a back condition in 2007. The records show that since January 2006, he has travelled overseas on multiple occasions each year. Since mid-2009, he has spent considerably longer overseas on each occasion and travelled more frequently each year. Essentially, since that time, he has returned to Australia every 13 weeks for very brief periods but has lived the majority of that time outside of Australia. He now has a wife and a very young child and lives 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 to the Department, that decision was affirmed, and a further review by an authorised review officer also affirmed that decision. An appeal to the Social Security Appeals Tribunal (“the 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. He now appeals to this Tribunal.

EVIDENCE

The applicant was in Bali and gave evidence by telephone during the hearing of this matter. His oral evidence was that at some time prior to the change in the law, he was advised that he could maintain his disability support pension while he lived overseas but he would have to return to Australia every 13 weeks. Mr Cole complains that, on the basis of this previous advice, he gave away all his possessions in Australia (including photographs, music albums, etc.) and moved to Java. He lives there “in the jungle”, with his wife and infant son, who will be two years of age in November 2012. They live in his mother-in-law’s house.
He told the Tribunal the only assets he has are the clothes that he wears. He had previously had been recorded as owning a 1974 Honda motorcycle, but he no longer has that asset. He is required to travel by bus to main centres which can be an eight hour journey.
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. Since losing his disability support pension, the applicant has lived off his savings but he says these are now substantially exhausted. Mr Cole said that he cannot move back to Australia yet, as his mother-in-law is not well, and his wife would not leave her mother. At some time in the future, he intends to move back to Australia with his wife and child.
The applicant is an Australian citizen. He does not reside in Australia. He does have some relatives in Australia but has stated that he has no contact with any of them. He had a business investment in Indonesia but that is now worthless. He has no employment or financial connection with Australia.
The evidence shows (T18) that he has come to Australia every 13 weeks to have a presence here in order to be entitled to maintain his disability support pension. He now submits that the change to the residency requirements makes it unfair on him in his circumstances.

ISSUES

To reiterate, the original decision of 9 November 2011 by Centrelink was to cease disability support pension with effect from 5 February 2012. The SSAT determined the effective date should be 1 July 2011.
There are therefore two issues to be determined by the Tribunal:
Is Mr Cole an “Australian resident” and therefore, entitled to disability support pension?; and
If Mr Cole is not an “Australian resident”, what is the correct date of cancellation of the disability support pension?

CONSIDERATION

I have taken into account all of the evidence submitted by Mr Cole and the respondent, including all of the documentary evidence filed with the Tribunal.

The Legislation

The qualification for disability support pension is provided for in s 94 of the Social Security Act 1991 (“the Act”). The applicant had previously satisfied the requirements of s 94. However that section has been amended and, with effect from 1 July 2011, an additional provision must now be satisfied as follows:

94 Qualification for disability support pension

(1) ...

(ea) either:

(i) the person is an Australian resident; or

(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a),(b),(c),(d) and (e) exist in relation to the person.

The term “Australian resident” is defined in s 7(2) of the Act and requires that a person actually reside in Australia and satisfy one of the citizenship or visa requirements. Mr Cole is an Australian citizen but must also satisfy the requirement that he is “residing in Australia”. Satisfying that latter requirement requires consideration of six factors shown in s 7(3) of the Act. These are:

7 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 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.

In other words, if Mr Cole is not an Australian resident, he will not meet the criteria of eligibility for disability support pension in s 94.

ISSUE 1 – Is Mr Cole an “Australian resident” and therefore entitled to disability support pension?

It is accepted that he is an Australian citizen. He could probably be described as having an Australian domicile. However, a person could be an Australian citizen and have an Australian domicile, but not be an Australian resident. To be a resident, the statutory criteria above in s 7(3) will determine whether, on the weight of evidence, he is a resident. From an examination of those criteria, I make the following findings of fact:
Mr Cole does not have accommodation in Australia;
He has no contact with any family in Australia;
He has no employment, business or financial interests in Australia;
He has no assets in Australia;
He has travelled outside of Australia in recent years and now lives in Java, Indonesia, except for the brief visits back to Australia; and
The only other matter of relevance to these considerations is his submission that he intends to return to Australia with his wife and child at some time in the future when they do not have to care for his mother-in-law. His return to Australia is therefore indeterminable at present.
As a consequence, since the new law took effect on 1 July 2011 requiring residency as a qualification for disability support pension, Mr Cole is not a resident and therefore is not so qualified. Section 80 of the Social Security (Administration) Act 1999 requires his pension to be cancelled where he is not qualified.
Therefore, I find that Mr Cole is not an “Australian resident” and Issue 1 was correctly determined according to the law as prescribed on 9 November 2011.

ISSUE 2 – If Mr Cole is not an “Australian resident”, what is the correct date of cancellation of the disability support pension?

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 date of effect is 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:

...
(a) the day the determination is made; or
(b) a later day specified in the determination, on that day.

The Secretary submits these provisions require that the date of effect of the cancellation determination must be 5 February 2012. I agree that that is an adverse determination, and that in accordance with s 118(13), the effective date must be 5 February 2012.

DECISION

Therefore I determine that:
The applicant is not an “Australian resident” and therefore is not now entitled to disability support pension; and
The effective date of the cancellation is 5 February 2012, the date the Secretary originally specified in the decision of 9 November 2011.

[Banjo]

Here's a portability case that makes interesting reading.

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/2012/697.html?stem=0&synonyms=0&query=portability

Dated 10 October 2012

Mr Luke Weller is the applicant in these proceedings. Mr Weller is currently receiving disability support pension (DSP) because he is unable to work as a result of an acquired brain injury. The respondent cancelled his DSP in January 2012 because it concluded Mr Weller was no longer an Australian resident. The requirement that someone be an Australian resident in order to qualify for DSP was inserted into the Social Security Act 1991 comparatively recently. It is found at s 94(1)(ea). As the explanatory memorandum which accompanied the amendments explained, the provision was targeted at individuals who effectively lived overseas but only returned to Australia occasionally in order to maintain their entitlement to DSP. DSP is intended for Australian residents, and the portability provisions are designed to accommodate those who have short trips abroad but who intend remaining in this country.

Centrelink explained in its statement of facts and contentions that Mr Weller was overseas for 107 of the 162 weeks before the cancellation decision was made. The cancellation decision was affirmed by the Social Security Appeals Tribunal.

Mr Weller applied to the Tribunal for a review of the cancellation decision. He was represented by a lawyer at the time. In order to facilitate the review, the cancellation decision was stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975. That meant Mr Weller continued to receive payments while the matter made its way to a hearing. If the Tribunal were to decide the cancellation decision should be affirmed, the amount of the payments Mr Weller continued to receive after the original cancellation decision would become a debt due to the Commonwealth that would presumably have to be repaid. It was therefore in Mr Weller’s interests that he co-operate so the matter could be brought to a hearing as soon as possible.

This is not a matter which can be resolved simply by looking at the file. Determining whether someone is an Australian resident for the purposes of the Act requires that I examine a good deal of evidence. Mr Weller’s evidence is likely to be particularly important, and the respondent and I will almost certainly wish to question Mr Weller about his claims. It is a serious business: DSP is a valuable entitlement, and those who are responsible for administering the system must be careful to ensure public monies are only paid to those who qualify for them. As it is, Mr Weller has made a number of claims in writing to the Tribunal. Some of them are scandalous allegations that are irrelevant on any view of the matter. Some of the claims and arguments are just difficult to follow; it would certainly be necessary to talk to him in person to clarify what he means.

The Tribunal and a representative from Centrelink travelled to Darwin in August on a circuit. A listing notice was sent to Mr Weller on 26 June 2012 informing him the hearing had been listed for 3 August in that Darwin circuit. A few days before the scheduled hearing, after the Tribunal was already committed to the circuit, Mr Weller contacted the registry and said he would not be attending because he was still in Bali.

Circuits are a very expensive exercise. If a person does not appear at a hearing on circuit, thousands of dollars of the taxpayer’s money are effectively wasted. The matter has to be relisted for another occasion, which means delay. The delay is particularly troubling in Mr Weller’s case because he continued to receive his regular payments of DSP.

When the hearing convened in Mr Weller’s absence on 3 August, I discussed what should be done. The respondent did not press for the matter to be dismissed under s 42A(2) of the AAT Act, although that option was open given the applicant had not turned up to the hearing or provided a satisfactory excuse for his non-appearance. After considering the matter, I decided I would not dismiss the application but I formed the view it was appropriate to lift the stay.

The power to stay a decision under s 41(2) may only be exercised “for the purpose of securing the effectiveness of the hearing and determination of the application for review”. The interests of the parties must be carefully examined before granting a stay: on the one hand, the interests of the applicant will obviously be affected if he or she is cut off from payments - but there is also a danger that a large and growing debt will accrue if the applicant is ultimately unsuccessful after the hearing and he or she has continued to receive payments pursuant to a stay. A stay would also be inappropriate if it created an incentive to delay the proceedings. In those circumstances, a stay would tend to obstruct rather than secure the effective resolution of the proceedings.

Given Mr Weller’s case did not appear on its face to be particularly compelling, and given Mr Weller did not appear to be committed to seeing the proceedings through to their conclusion in a timely way, I decided it was appropriate to lift the stay at the hearing on 3 August. Out of consideration for the applicant, I decided the stay would not be lifted until 16 August 2012 so he would have the opportunity to return to Australia. I did not want him to be stranded in Bali without access to payments if he were in fact an Australian resident.

Mr Weller contacted the Tribunal when his payments ceased after 16 August. He was irate. He also contacted various ministers to complain and threatened to have Tribunal staff prosecuted. He wanted the stay reimposed. A telephone hearing was convened on 27 August 2012 to discuss whether that was appropriate.

Mr Weller was in Darwin at the time of the telephone directions hearing. He was angry and threatening over the phone. He made a series of allegations against the Tribunal and its staff, the Australian Labor Party and others. He insisted he was being harassed because there was no basis for cancelling his pension in the first place. He also said he was due to undergo surgery in Darwin in the next few days, and that he would take a few weeks to recover.

The Tribunal had another circuit set down for Darwin in early October. I told Mr Weller I would order a fresh stay so his payments would resume from 27 August (although there would be no payment of arrears pending the outcome of the hearing) until 5 October, or such later date as may be ordered. (The Tribunal subsequently extended the operation of the stay until 10 October in its order of 24 September 2012 once the listings process was finalised.) He agreed he would turn up at the hearing so the matter could be dealt with.

The hearing was subsequently re-listed for 9 October, but Mr Weller rang the registry on 3 October and said he was still ill following his surgery in Darwin and that he was $20 short of the cost of an airfare. The registrar and my associate subsequently corresponded with Mr Weller but he insisted by email that he would not be in attendance for a range of reasons, including his health.

I note Mr Weller was complaining he was still recovering from surgery but he underwent the surgical procedure in Darwin and was obviously fit enough to return to Bali. It is unclear why he was unable to return to Darwin today in time for the hearing after recuperating. I was not provided with any medical evidence that would explain his inability to travel, although he was specifically asked to provide that evidence in correspondence in the days before the hearing.

The Tribunal cancelled the Darwin circuit. There was no point incurring still more expense traveling to Darwin if Mr Weller was not going to attend. Mr Weller was told the hearing would proceed by telephone so we could discuss what should occur. He was warned the respondent might ask for the matter to be dismissed. If the matter was not dismissed, the question of the stay would be revisited. As it is, the stay will lapse on 10 October and the applicant’s payments will cease in the absence of a further order from the Tribunal under s 41(2).

Mr Weller was belligerent and threatening during the course of the telephone hearing. He again made scandalous allegations about a number of people that were, in any event, irrelevant to the questions at hand. He referred to ongoing medical problems and the difficulties he experiences functioning because of his disability. But he also expressly denied he was aware of the hearing on 3 August. He is mistaken in that claim: he contacted the Tribunal in advance of that hearing to say he would not be attending, so he must have been aware it was on. He also made a number of other allegations that were so outlandish that I am left unsure as to what weight I should give any of his evidence.

Mr Weller said he was prepared to return to Australia as soon as he received his next payment on 14 October, although at another point in the conversation he insisted it would be impossible for him to do so because his carer resided in Indonesia. He also said he proposed bringing Federal Court proceedings where he could call witnesses that would expose the conspiracy against him rather than waste time in the Tribunal.

I was not left with the clear impression Mr Weller has any intention of progressing this application. He remains militantly of the view that there is no case to answer: he says the provisions of a “grandfather Act” mean he is not affected by the recent amendments. It may be his condition is such that he cannot progress the proceedings without assistance. In any event, it is not clear that extending the stay will secure the effectiveness of a hearing that cannot be scheduled until December. In particular, it is unclear whether Mr Weller will again be unable to return to Darwin at the last minute if he remains in Bali in receipt of the pension if the payments continue.

I think the best approach for me to take would be to extend the stay until the day after Mr Weller’s next scheduled payment so he has the means to return to Australia. I understand the next payment is due on 17 October 2012.If he is truly a resident of Australia, that should not be unduly burdensome. He says he anticipates receiving further medical treatment in Australia shortly in any event. The matter will be listed for hearing in Darwin on Thursday, 6 December. If Mr Weller is successful at that hearing, he will presumably be entitled to receive payment of arrears.

Once he has returned to Australia, Mr Weller is free to make a fresh request for a stay so that his payments might resume pending the outcome of that hearing. If he were willing to offer an undertaking that he would remain in Australia before the hearing on 6 December that might be a relevant consideration because it would offer some comfort that he was serious about seeing his application through to its conclusion. But that is a question for another day. For now, the Tribunal orders that the decision be stayed until 18 October 2012.

The decision was made last week, I'll see if I can find it. I'd say he has little hope though.

[Banjo]

Take note that the appellants attitude and behaviour towards Centrelink officers has been faithfully recorded and reported to the AAT.

[Denis-NFA]

Banjo.....I agree that Mr Weller has no hope because of the changes to the law.

And I think the Tribunal registrar is doing his utmost within the law to look out for Mr Weller's well being.

But it surely underscores the harsh Centrelink treatment of people with a requirement for a pension on the basis of disability.

It also underscores the Ombudsman's report on C/L's lack of ability to deal with 'Mental Health' issues of their clients.

The reality is that Mr Weller is exhibiting behaviour of someone with an acquired brain injury.

The fact is that Mr Weller, and all of us, need to submit ourselves for JCA that will show we have zero work capacity, outside of working for C/L that is.. ;D

I think the whole residency issue is a furphy from the bureaucracy and an easy, cheap, best shot at us by them.

[lynnebali]

Been awhile!!! Have been out of internet range mobile range and relying the old postman. My appeal goes to AAT. Payments have been restored until a hearing date is set. Payment cancelled in August - Restored from 17 October ONLY no back pay. Now to work out this appeal for aat and having read these comments chances look damn slim if I may say so.

[Banjo]

Good to have you back Lynne, I'll agree we have to consider running a different track for the AAT.
Ask for your payments be back paid to August, point out that if you are paid pending the AAT appeal it should cover the entire period.

[Banker]

Welcome back Lynne we have missed you.

[Deleted]

welcome back.
We all missed you.
Good luck om your appeal.