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Post by Banjo on Apr 5, 2010 13:27:11 GMT 7
New residency rules for Disability Support Pensioners
28/03/2010 Joint Media Release with The Hon Jenny Macklin MP, Minister for Families Housing Community Services and Indigenous Affairs The Australian Government will crack down on people on the Disability Support Pension (DSP) who live permanently overseas but return to Australia every 13 weeks in order to retain their pension. From January 2011, only DSP recipients permanently residing in Australia will be able to continue to receive the DSP except under limited and specific circumstances. Even though only Australian residents can lodge a claim for the DSP, and those on DSP can only be absent from Australia for up to 13 weeks, there are cases of DSP recipients living permanently overseas and flying back to Australia every 13 weeks to continue receiving the pension. The Government will close this loophole to ensure the system is fair and effective. An additional rule will be introduced to require Australia to be a DSP recipient's permanent place of residence. This change will bring DSP into line with other workforce age payments. Under the Social Security Act, residence is determined by examining a range of factors, including whether someone owns or rents property in Australia, whether they have assets in Australia, how long they plan to spend away from Australia and whether they have an Australian bank account. Analysis of data from the 2007-08 financial year shows that of DSP recipients who undertook more than three overseas trips, 154 spent less than eight weeks in Australia over the year. Of these 71 spent less than four weeks in Australia and eight spent less than a week here. These changes have been made possible through a new data exchange process between Centrelink and the Immigration Department that started in 2008. Centrelink will take a risk-based approach to reviewing the residence status of DSP recipients and will focus on those customers who have three or more overseas trips a year. The changes will not affect DSP recipients who need to leave Australia temporarily, only those who choose to no longer permanently live in Australia. The 13 week temporary absence rule will remain to allow DSP recipients to legitimately travel overseas for short periods. This change will not affect any disability support pensioner who has portability under an international social security agreement, is grandfathered from changes introduced in 2001 or 2004, or is entitled to portability because they are severely disabled and terminally ill and overseas to be cared for by a family member. This change is expected to save taxpayers around $3 million a year when fully operational. The Government is committed to improving support to people with disability. As a result of pension increases announced last year and indexation, the DSP payment for singles on the maximum adult rate has been increased by around $100 per fortnight. www.jennymacklin.fahcsia.gov.au/Internet/billshorten.nsf/content/disability_support_pensioners_28mar10.htm
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Post by richoz on Apr 6, 2010 13:25:08 GMT 7
And what exactly are the changes going to be? Legislative or simply just policy changes. If the latter, just another example of bullying by an Australian Government Department.
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Post by Banjo on Apr 6, 2010 13:57:10 GMT 7
The board's a mess at the moment Rich, the latest information was posted this morning in another place, I received it by email from the Welfare Right group in Adelaide.
Basically they think there's going to be no changes this year, then after Jan1 '11 Centrelink will tighten upon the Australian residency qualifications. Basically, if you're out the country too much Centrelink will no longer consider you to be an Australian and entitled to the DSP. What their criteria will be remains to be seen.
Write and ask your MP and demand to know, there's an election this year, they may just be listening.
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Post by Banjo on Apr 6, 2010 14:21:16 GMT 7
Thanks for that, note it says "may depend on whether you have been back in Australia for 13 weeks" Tried to copy and paste it to the board, me and pdf files don't get along...
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Post by richoz on Apr 6, 2010 14:36:31 GMT 7
I hear what you are saying, but we need to distinguish between law and policy. Where policy conflicts with the law, the law always prevails. As far as I know, there are currently no sections/regulations that state a minimum period of return. True, you must remain a resident and there are many factors taken into consideration as provided by the Act in determining whether someone is still regarded as been a resident. My argument, is that if the legislature had intended a 'minimum period of return' it would have been provided for in the Act/Reg's.
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Post by Banjo on Apr 6, 2010 14:48:04 GMT 7
Me in 3 weeks. I may wait a week or two before I ring them to come away again, family stuff to do anyway.
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Post by Banjo on Apr 6, 2010 15:50:47 GMT 7
They don't like eyeballing you on International travel issues, last few times I've been put on their phone to the Tasmanian office that handles that stuff.
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Post by Banker on Apr 11, 2010 17:11:40 GMT 7
Looks as if they have started early? ? A Friend of mine returned and had an interview last Thursday, he was on the 13 week thing. They have stopped his pension saying he is not considered a Resident. He now has to appeal in 7 weeks time. But they do consider him a Resident to pay tax on his investments. I have guided him to this web site and also told him to contact the welfare rights Group and ask them for help. Hope I have given him the correct advice. Cheers.
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Post by Banjo on Apr 12, 2010 9:45:06 GMT 7
Well it can do no harm banker, I've made it plain from the beginning that this site is for sharing information and lending support to others in our situation rather than offering concrete advice. Basically we don't know what is going on at the moment or what changes are to come. Do you know if your friend had overstayed?
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Post by richoz on Apr 12, 2010 14:38:42 GMT 7
Looks as if they have started early? ? A Friend of mine returned and had an interview last Thursday, he was on the 13 week thing. They have stopped his pension saying he is not considered a Resident. He now has to appeal in 7 weeks time. But they do consider him a Resident to pay tax on his investments. I have guided him to this web site and also told him to contact the welfare rights Group and ask them for help. Hope I have given him the correct advice. Cheers. Banjo, Can you give us more info on your friends situation? Had he been away for more than 13 weeks. How did they stop his DSP, was it instant? Was he notified at any time prior to cancellation that they were considering canceling his pension
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Post by Banjo on Apr 12, 2010 16:39:27 GMT 7
No, it's bankers friend mate, hopefully he'll get back to us with more information. I can't see how they could just pull the plug if he had permission to leave for 13 weeks and abided by those requirements. But then....
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Post by Banker on Apr 12, 2010 20:17:31 GMT 7
Well it can do no harm banker, I've made it plain from the beginning that this site is for sharing information and lending support to others in our situation rather than offering concrete advice. Basically we don't know what is going on at the moment or what changes are to come. Do you know if your friend had overstayed? No he did not overstay. He returned every 13 weeks on time every time. He was handed the news when he went into the Centerlink office last Thursday. I will give you more info on this as it comes in. He is coming back here later this week So Im hoping to catch up with him & get the full story. Cheers.
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Post by lemons on Apr 13, 2010 11:27:00 GMT 7
Hi all,
Lemons here - a brand new member.
I am bankers friend who he was referring to in his post above.
@ Banjo: Not sure what you mean by overstayed mate. A couple of times I have remained o/seas in excess of 13 weeks, and C/link simply suspend payment on my DSP. They re-start it once I return and go and see them. Never seemd to be an issue as I was always totally honest about my periods away.
Sorry if the below is a bit long winded, but it's a paste of the email I sent banker, which outlines what happened the other day at C/link:
What reason did they give you to stop your Pension?
They said they had sufficient grounds, based on immigration records + my declarations to them when I departed OZ each time, that I was not an Australian resident for DSP purposes. They had the 2008 and 2009 records there, and put to me that I had spent under 40 days in the country over that 2 year period. They are correct, and I agreed with them.
I questioned as to where in the SS Act did it say anything more than that there was a 13 week limit on the time you could be abroad before your DSP was suspended? Further that there was nothing in the Act that stipulates how long you have to remain in the country after returning.
They came back with: the 'decision maker' had discretion to review individual cases and had formed the view that I was not a genuine resident of Australia, and therefore not entitled to the DSP. The fact that all my funds are invested here, that I have an Australian bank account, that I pay Australian tax and Medicare levy was deemed irrelevant,
I have the right of appeal, but unlike other appeals which can be in writing, they are insisting I must personally attend this one, and there's no free appointments for 7 weeks. (Must be busy with other sods like me!) I agreed to the appointment, to keep the case alive, but of course I wont be there. In the meantime I will try to be allowed to make a written submission.
Apparently this is all on its way to me in writing.
In addition, if I dont appeal, or lose it, they will seek repayment of an as yet unspecified amount, being benefits paid while they allege I was not a 'genuine resident' of Australia. In other words they are saying they will apply retrospectivity to the decision. This is determined by a 'senior officer and then reviewed by some tribunal at some future date, and again I can appeal - but only in person.
So there it is folks. I fly back to Cambodia on Thursday, so hopefully there will be something in the mail before then. (I am registered for online corro, but they said that these sorts of letters must be snail mailed. I guess another way to put impediments in the way of us who travel).
Any assistance guidance etc you can give me would be greatly appreciated.
Cheers lemons
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Post by richoz on Apr 13, 2010 12:47:10 GMT 7
Hi all, Lemons here - a brand new member. I am bankers friend who he was referring to in his post above. @ Banjo: Not sure what you mean by overstayed mate. A couple of times I have remained o/seas in excess of 13 weeks, and C/link simply suspend payment on my DSP. They re-start it once I return and go and see them. Never seemd to be an issue as I was always totally honest about my periods away. Sorry if the below is a bit long winded, but it's a paste of the email I sent banker, which outlines what happened the other day at C/link: What reason did they give you to stop your Pension?
They said they had sufficient grounds, based on immigration records + my declarations to them when I departed OZ each time, that I was not an Australian resident for DSP purposes. They had the 2008 and 2009 records there, and put to me that I had spent under 40 days in the country over that 2 year period. They are correct, and I agreed with them.
I questioned as to where in the SS Act did it say anything more than that there was a 13 week limit on the time you could be abroad before your DSP was suspended? Further that there was nothing in the Act that stipulates how long you have to remain in the country after returning.
They came back with: the 'decision maker' had discretion to review individual cases and had formed the view that I was not a genuine resident of Australia, and therefore not entitled to the DSP. The fact that all my funds are invested here, that I have an Australian bank account, that I pay Australian tax and Medicare levy was deemed irrelevant,
I have the right of appeal, but unlike other appeals which can be in writing, they are insisting I must personally attend this one, and there's no free appointments for 7 weeks. (Must be busy with other sods like me!) I agreed to the appointment, to keep the case alive, but of course I wont be there. In the meantime I will try to be allowed to make a written submission.
Apparently this is all on its way to me in writing.
In addition, if I dont appeal, or lose it, they will seek repayment of an as yet unspecified amount, being benefits paid while they allege I was not a 'genuine resident' of Australia. In other words they are saying they will apply retrospectivity to the decision. This is determined by a 'senior officer and then reviewed by some tribunal at some future date, and again I can appeal - but only in person.So there it is folks. I fly back to Cambodia on Thursday, so hopefully there will be something in the mail before then. (I am registered for online corro, but they said that these sorts of letters must be snail mailed. I guess another way to put impediments in the way of us who travel). Any assistance guidance etc you can give me would be greatly appreciated. Cheers lemons Hi Lemons, Welcome aboard, and sorry to hear about your predicament. Thanks for filling us in on what has happened to you. Please keep us updated. You are 100% correct, where does it say in the SS Act that you have to remain in Australia for a certain (minimum) period of time upon return. Furthermore, does it say that you are limited to a certain number of overseas trips within a period of time? No it doesn't. The portability period is 13 weeks for DSP's. I cannot see anywhere (SS Act) where it states you need to remain in Oz for a set time upon return. As I have said in previous post, if the legislature intended that, it would have been included in the legislation - it isn't. Centrelink are obviously trying to get you on not being an 'Australian Resident' due to your frequent overseas travel. It my understanding that there are many varying criteria taken into account/consideration when determining whether someone is in fact an 'Australia Resident' for Centrelink purposes, and one factor alone is not conclusive proof that they are no longer a resident, that is, the number of trips/and length on its own does not prove that a person has ceased to become an Australian Resident. How ironic that someone can migrate to Australia, obtain permanent residency, then leave and years later still keep hold of their permanent residency (Migration Act/Reg's). I find it interesting that Centrelink have said that they have the discretion to review individual cases. Well, for what it worth, that's probably absolutely correct. However, any decision maker cannot act outside their legal authority, and they must follow the law implicitly. Remember where Centrelink policy is inconsistent with the law, the law will prevail. On a final note, keep in mind Centrelink is one of the most complained of Australian Government Departments, and at least one third of decisions are reversed on appeal to the SSAT.
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Post by lemons on Apr 13, 2010 12:59:06 GMT 7
Thanks richoz. I will keep you informed of developments.
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