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Post by peter on Jun 23, 2012 16:59:59 GMT 7
Residency and eligibility for DSP are two different things, so I am told and as I have observed. One must be resident to become a DSP and thereafter previously, to maintain eligibility, one had to comply with the 13 week rule. Leaving aside the pre 2004 grandfathered group who were classed as non resident, were the people on the 13 week go round group, classified as residents or non residents? The classification will be seen in the payment or non payment of pension supplement and rent allowance. So the question is, did the DSP 13 week touch downers get the rent allowance? because that will indicate whether the OAP 26 week touch downers will get it. And whilst its not much, the main problem with touch down in Australia is the expense of somewhere to stay. Its true that if the reduction in the OAP due to a lack of 35 AWLR for full pension is not much, then it does not matter, but if one is forced to do it, then he better plan it out well ahead of time. And a final question is, was the 13 week touch down rule limited to DSP only? as I have not heard mention of it in relation to other social welfare payments which also had a 13 week portability maximum. Was there a history and rationale behind that or was it just happenchance? Thanks.
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Post by Banjo on Jun 23, 2012 17:54:07 GMT 7
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Post by peter on Jun 23, 2012 19:35:20 GMT 7
Most types of payments are shown as portable for limited periods. To qualify, it states that one must be "in Australia and an australian resident" plus meet the condition attached to the payment. So, some of these payments could be continued under the periodic "touch down" situation that developed under DSP and some other payments may have already been in the touchdown category but not enough to attract publicity. What I cannot understand is why they did not simply enforce the "Australian Residence" requirement. After one or two years away one is no longer an Australian resident. I will not say the cut off time because I am unsure for Social Security, but the Taxation Department has a definition to make it clear as do the Citizenship people. The 13 week touchdowner situation seems to have developed because no one would enforce or clarify the legislation. Residency is outlined in common law unless over ridden by legislation.......and it boils down to where one spends most of his living time. They do not seem to have fixed the legislative defect of not defining residency for Social Security to be able to be continued abroad, but have approached it by tightening what seems to be defective legislation.........with the defects continuing to allow a situation of 6 week touchdowning. I well remember Verandah Vanstone standing up in Parliament stating the wonderful work her department had done by making uniform the duration times payments could be made outside Australia for benefits. But she did not do a good job since she left open this loophole, that one could extend the period of absence abroad by means of a return touchdown and turnaround. So, the government has stood by and allowed this situation to develop and have still not really corrected it, just shortened the time allowed abroad, and let feasibility of circumstances do the correction. Actually, it is a bit school boyish to handle legislation in this way. There must be some legislative reason why they did not make australian residence a continuing requirement that we do not know, but the way to fix defective legislation is to do the legislation again, not tighten what is already defective. Maybe it was not a legislative reason but a political reason. Soft to begin, hard at the end. On DSP they have now got 820,000 people. It was fun to allow that growth but again a lot of tears to stop that growth. So, it looks like one can continue to do a six week DSP touchdown, or a 26 week OAP touchdown. Nothing in the legislation has changed except the periods of absence. I have a friend abroad who has about 15 years AWLR. He is about 60 now, so he cannot put his AWLR right by sprinting back to wait his time out here to get a bit more residence towards the new AWLR. That then puts him on the poor list for the rest of his days whether he stays abroard on the part pension, or comes to australia to live on a subsistence pension. So, I think people lacking that 35 year AWLR requirement might well become the new group of 26 week touchdowners. And its probably not such a bad deal if the rent assistance is obtained to keep minimal priced accommodation on hold in Australia so that one has somewhere to stay in between those 26 week returns. Centrelink always do like to see those rental leases as proof of residency, even if the occupying resident spends 90% of his time abroard but its oftentimes wise not to question why. What a shambles this Social Security system is.....all things to all people.......middle class welfare where it can buy votes best.
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Post by peter on Jun 23, 2012 20:05:42 GMT 7
Concerning Minister Verandah Vanstone; I have two memorable impressions of her. One was the time in the Parliament when she was spouting off about her standardising the portability periods for benefit payments outside Australia. The other was the shock I got when I was told that someone had married her.
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Post by peter on Jun 24, 2012 7:03:27 GMT 7
Australian Residency - Centrelink Definition. In the departmental papers accompanying the reduction in portability from 13 weeks to six weeks there is the following statement; "The Australian Social Security system still retains generous portability provisions for those people on income support payments. Although limited to six weeks there is generally no limit on the number of times a person can leave Australia, as long as they continue to reside in Australia". For Centrelink to allow benefits to continue under a touchdown turnaround situation, means that they regard that act as sufficient to continue residency. Under common law it does not, for residency means domicle and that means where one lives primarily. But common law is not what Centrelink has been using when it accepts touchdown turnaround as sufficient to continue payments which continuation is conditional on one maintaining residency. The other thing that flows from this Centrelink de facto definition of residency, is that payments payable within Australia, such as pension supplement and rent allowance are payable to the touchdowners since Centrelink regards them as australian residents otherwise the payments could not be continued. This also would apply to AWLR accumulation since they are not permanently resident overseas. It also would make easy the transition from DSP to OAP, since the payment of DSP is itself the recognition that one is an australian resident. The only payments which are fully portable are deathbed DSPs and OAPs. All the rest are temporarily portable and if one is receiving them overseas, then the assumption is that one is an australian resident. Do not try to convince Medicare that one is a resident, when one spends several years overseas with only minimal time in Australia, because they enforce the common law definition of residency. But Centrelink do seem to consider long term touchdown turnaround DSPs as australian residents, or they could not legally continue to pay them.
That is my interpretation. Comments invited.
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Post by Banjo on Jun 24, 2012 7:29:46 GMT 7
Australian Residency - Centrelink Definition.
In the departmental papers accompanying the reduction in portability from 13 weeks to six weeks there is the following statement; "The Australian Social Security system still retains generous portability provisions for those people on income support payments. Although limited to six weeks there is generally no limit on the number of times a person can leave Australia, as long as they continue to reside in Australia".
For Centrelink to allow benefits to continue under a touchdown turnaround situation, means that they regard that act as sufficient to continue residency.
Under common law it does not, for residency means domicile and that means where one lives primarily. But common law is not what Centrelink has been using when it accepts touchdown turnaround as sufficient to continue payments which continuation is conditional on one maintaining residency.
The other thing that flows from this Centrelink de facto definition of residency, is that payments payable within Australia, such as pension supplement and rent allowance are payable to the touchdowners since Centrelink regards them as Australian residents otherwise the payments could not be continued. This also would apply to AWLR accumulation since they are not permanently resident overseas. It also would make easy the transition from DSP to OAP, since the payment of DSP is itself the recognition that one is an Australian resident. The only payments which are fully portable are deathbed DSPs and OAPs.
All the rest are temporarily portable and if one is receiving them overseas, then the assumption is that one is an Australian resident. Do not try to convince Medicare that one is a resident, when one spends several years overseas with only minimal time in Australia, because they enforce the common law definition of residency.
But Centrelink do seem to consider long term touchdown turnaround DSPs as Australian residents, or they could not legally continue to pay them.
That is my interpretation. Comments invited.
OK, I went and saw Medicare last year and they said they cancelled people's membership after 5 years continuous absence. Centrelink finally realised that they had no way of stopping "turnarounders" so this was why the "JetSet Pensioners" legislation changed and they thought that this would enable them to restrict time spent out of the country on residency grounds. Note what the Act says about residency here. www.austlii.edu.au/au/legis/cth/consol_act/ssa1991186/s7.html#qualifying_australian_residenceand here are the 1/1/12 amendments to the Act. Schedule 2—Residence required to qualify for disability support pension Social Security Act 1991
1 After paragraph 94(1)(e) Insert: (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; and
2 After paragraph 94A(1)(j) Insert: (ja) 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; and
3 At the end of subsection 94A(1) Add: Note: For Australian resident see section 7.
4 At the end of subsection 95(1) Add: ; and (d) 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.
5 Section 1212 Insert: Australian resident disability support pensioner means a person who qualifies for disability support pension only because he or she is an Australian resident.
6 Section 1212 Insert: terminally ill overseas disability support pensioner means a person who qualifies for disability support pension because all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
7 Section 1217 (table item 3) Repeal the item, substitute: 2 Disability support pension Australian resident disability support pensioner Any temporary absence 13 weeks (but see also sections 1218AA and 1218) 3 Disability support pension Terminally ill overseas disability support pensioner Any absence Unlimited period
8 At the end of Part 3 of Schedule 1A Add: 150 Persons exempt from requirement to be Australian residents to qualify for disability support pension Paragraphs 94(1)(ea), 94A(1)(ja) and 95(1)(d) do not affect the qualification for disability support pension of: (a) a person to whom the provisions mentioned in subclause 128(1) continue to apply as described in that subclause; or (b) a person who is covered by a determination under clause 135.
Note: Those paragraphs are in Subdivision A of Division 1 of Part 2.3, which is about qualification for disability support pension.
Enjoy.
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Post by scuzzy on Jun 24, 2012 10:03:30 GMT 7
Most types of payments are shown as portable for limited periods. To qualify, it states that one must be "in Australia and an australian resident" plus meet the condition attached to the payment. So, some of these payments could be continued under the periodic "touch down" situation that developed under DSP and some other payments may have already been in the touchdown category but not enough to attract publicity. What I cannot understand is why they did not simply enforce the "Australian Residence" requirement. After one or two years away one is no longer an Australian resident. I will not say the cut off time because I am unsure for Social Security, but the Taxation Department has a definition to make it clear as do the Citizenship people. The 13 week touchdowner situation seems to have developed because no one would enforce or clarify the legislation. Residency is outlined in common law unless over ridden by legislation.......and it boils down to where one spends most of his living time. They do not seem to have fixed the legislative defect of not defining residency for Social Security to be able to be continued abroad, but have approached it by tightening what seems to be defective legislation.........with the defects continuing to allow a situation of 6 week touchdowning. I well remember Verandah Vanstone standing up in Parliament stating the wonderful work her department had done by making uniform the duration times payments could be made outside Australia for benefits. But she did not do a good job since she left open this loophole, that one could extend the period of absence abroad by means of a return touchdown and turnaround. So, the government has stood by and allowed this situation to develop and have still not really corrected it, just shortened the time allowed abroad, and let feasibility of circumstances do the correction. Actually, it is a bit school boyish to handle legislation in this way. There must be some legislative reason why they did not make australian residence a continuing requirement that we do not know, but the way to fix defective legislation is to do the legislation again, not tighten what is already defective. Maybe it was not a legislative reason but a political reason. Soft to begin, hard at the end. On DSP they have now got 820,000 people. It was fun to allow that growth but again a lot of tears to stop that growth. So, it looks like one can continue to do a six week DSP touchdown, or a 26 week OAP touchdown. Nothing in the legislation has changed except the periods of absence. I have a friend abroad who has about 15 years AWLR. He is about 60 now, so he cannot put his AWLR right by sprinting back to wait his time out here to get a bit more residence towards the new AWLR. That then puts him on the poor list for the rest of his days whether he stays abroard on the part pension, or comes to australia to live on a subsistence pension. So, I think people lacking that 35 year AWLR requirement might well become the new group of 26 week touchdowners. And its probably not such a bad deal if the rent assistance is obtained to keep minimal priced accommodation on hold in Australia so that one has somewhere to stay in between those 26 week returns. Centrelink always do like to see those rental leases as proof of residency, even if the occupying resident spends 90% of his time abroard but its oftentimes wise not to question why. What a shambles this Social Security system is.....all things to all people.......middle class welfare where it can buy votes best. My sentiments exactly; if residency is such a big deal for them, why wouldn't they have just set a hard and fast rule and formula for people to follow, something as simple as "to stay eligible for DSP, frequent international traveling customers need to be in Australia for more than 50% of the year, and no one trip may exceed 13 weeks without special approval".What would have been so difficult for them to have simply done something like that?! Like you said, there's got to be a reason. Ideas anyone? I've got some theories but most of them are still half baked at the moment. I'm working on them though. Also Peter, I agree with you that anyone who is in a situation where their residency becomes an issue, including people who were grandfathered in 2004, should sit down and give some serious thought to how this may impact them in the future, especially in terms of AWLR when it comes to OAP. Now a lot of grandfathered DSP'ers may think "I'll just stay on DSP and not switch to OAP"....but what if they change the rules and force people to switch to OAP when they come of age. Or, what would happen to a grandfathered DSP'er who has been deemed a non resident, but for unforseen reasons must come back to Australia for something like medical treatment. They would loose their grandfathered status, they would be barred from applying for unlimited portability for 2 years (and even then probably still wouldn't get it), plus the time they spent as a non-resident during their grandfathered period would have chomped into their AWLR, hence affecting their OAP, which they would need to switch to if they wanted to resume spending time O/S again (because if they stayed on DSP, they would be limited to the 6 weeks and also be hobbled by constant residence accusations). Like you said, it's a real conundrum.
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Post by Banjo on Jun 24, 2012 10:22:43 GMT 7
Grandfathered DSP's currently switch to the OAP fairly painlessly, I'm tempted to think that the government will leave these guys alone, along with the OAPers living overseas. I'm convinced they just pulled us out of the hat, some chair warmer decided that a few hundred was a soft target and some "savings" could be created on paper by bean counters. The others are in quite large numbers though, they have kids in Australia who vote even if they don't, not to mention ex wives who don't want them back.
I've developed a conspiracy theory that some DSPer's overseas are untouchable and the portability is left open so Centrelink can leave them alone.
You're right on the residency/travel frequency question though, because some payments DO have a specific qualification on the amount of travel... curse my rattle headed memory... parenting? 13 weeks away then 13 weeks before they can leave again?
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Post by scuzzy on Jun 24, 2012 12:01:16 GMT 7
Grandfathered DSP's currently switch to the OAP fairly painlessly, I'm tempted to think that the government will leave these guys alone, along with the OAPers living overseas. I'm convinced they just pulled us out of the hat, some chair warmer decided that a few hundred was a soft target and some "savings" could be created on paper by bean counters. The others are in quite large numbers though, they have kids in Australia who vote even if they don't, not to mention ex wives who don't want them back. I've developed a conspiracy theory that some DSPer's overseas are untouchable and the portability is left open so Centrelink can leave them alone. You're right on the residency/travel frequency question though, because some payments DO have a specific qualification on the amount of travel... curse my rattle headed memory... parenting? 13 weeks away then 13 weeks before they can leave again? Yep, untouchable is the word. What's your conspiracy theory?! I've got a couple myself, but they're pretty out there.....
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Post by peter on Jun 24, 2012 19:14:45 GMT 7
Grandfathering. The grandfather principle used to be routine when changes to benefits were made. I remember Costello, trying to change the Single Parent benefit, and in order to get the changes through, he banged away at the grandfather principle.......that being that the entitlements of exsting customes would not be changed. His changes would only affect new customers. I think all governments had respected the grandfather principle prior to this one. I might be wrong and if so please post. Along comes the ALP government, and the grandfathering principle is no longer respected. The first warning sign was last year when they tried to get Costello"s grandfathered single parents out on deck so that they could be chopped off when the child turned 12 rather than 16 or 18?, which was the entitlement when they were grandfathered. The legislation did not get to law. Come this year, and the principle of grandfathering has well and truly gone. Three examples I can think of, maybe more; 1. Single parents, grandfathered or not, child support ceases at the age of 8? No exceptions. 2. 13 week portability provision ceases and all herded onto deck to get their new entitlement of 6 weeks. No grandfathering but deathbed DSPs excempted. 3. AWLR becomes 35 years as from Jan 1. 2014. Again no exceptions. Another clue that people missed was when Gillard banged on about " we are the party of work not the party of welfare". Not quite right since they just handed out more welfare for the schoolkids bonus, and the Parental Leave Scheme and whatever other handouts they give to cater to the audience, but not too far wrong. I am starting to think that they were not just an opposition before but also keen students of John Howard"s vote winning middle class welfare policies. To be fair, they did overhaul the abysmal OAP when they took office, and have got a National Disability Scheme underway, but one thing that they have buried is respect for the grandfather principle. The grandfather principle was the tradition, and gave the system reliability and predictability. Now it is gone, so we have a welfare system that is now anchored on "the mood of the moment".........which could also be termed the "fashion of the moment" and what the principles were in the past is now passed. That is a legitimate approach, but a pretty brutal and ruthless one from a Labour government and a big change from what previously happened. Anyone presently on a grandfathered benefit, is on a benefit that could be changed just as the above three have been. That group of pre 2004 grandfathered DSPs as having a permanently portable DSP benefit are one such group. However it is not so large. The figure was 8,000 as I recall, and most are in agreement countries. Whilst they cannot be accruing australian AWLR, they are accruing agreement AWLR which has the same affect. So come time for OAP they will not have much trouble. So I think we have come to a stage where it is time to say "Farewell Grandfather, is was nice to have known you before the bottle got you".
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Post by peter on Jun 24, 2012 19:24:19 GMT 7
Correction to the post above; The OAP, AWLR does change to 35 years as of Jan 1, 2014, but those already outside the country on a pension obtained under the 25 year rule, will have that rule respected = grandfathered, until such time as they resume residency. Thereafter if they exit permanently again, the 35 AWLR will apply.
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Post by Banjo on Jun 24, 2012 19:24:19 GMT 7
Anyone presently on a grandfathered benefit, is on a benefit that could be changed just as the above three have been.That group of pre 2004 grandfathered DSPs as having a permanently portable DSP benefit are one such group. However it is not so large. The figure was 8,000 as I recall, and most are in agreement countries. Whilst they cannot be accruing australian AWLR, they are accruing agreement AWLR which has the same affect. So come time for OAP they will not have much trouble. So I think we have come to a stage where it is time to say "Farewell Grandfather, is was nice to have known you before the bottle got you".
When we started this forum I attempted to recruit the grandfathered on the major expat forums and had it patiently explained to me that this was nothing to do with them. They were safe, they had been promised, go away.
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Post by scuzzy on Jun 24, 2012 20:17:02 GMT 7
I suppose the whole concept of Grandfathering is to safeguard against a newly introduced law being used retro-actively (or retrospectively as some call it). That's because most developed countries with a mature legal system recognise that retro-active law is 'bad law'. So it says a lot that our current leaders, most of whom are former lawyers and who should know better, are deep six-ing this protection, and thus introducing retro-active laws. Who would have ever thought that it would be a Labor Government who would employ 'bad law' to dismantle the welfare system.
Like Peter said, I wouldn't bet on staying 'safe' forever if I was a grandfathered DSP'er. And it will all start with FaHCSIA leaking to the media that there's a 'Loop-hole' that is allowing thousand's of DSP'ers to stay overseas indefinetely when they should be back here working down Gina's mine. Then suddenly Jenny Maklin is saying, "Don't worry , we're going to close that loophole next budget. The savings to the taxpayer will be 925 million." Next thing you know, it's bye-bye Grandpa. I hope for their benefit that doesn't happen, but surely one day some bright spark at FaHCSIA is going to have to say "Ummmmmm, why don't we just cut these guys off!?
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Post by peter on Jun 24, 2012 20:25:12 GMT 7
Those on DSP grandfathered prior to June 30, 2004, and who are living in non agreement countries are in a rather exposed position since they are not accruing AWLR so they are cemented into the AWLR that they had as at June 30, 2004.
The system presently allows DSP to continue into dotage, with no requirement to apply for OAP. Well and good if that continues.
But if someone comes up with a Vanstone type idea to standardise everyone onto OAP at the age of 65, which would rope in DSPs and Carers over the age of 65, then they will have the very big problem that many will be short of the 35 years AWLR to transfer to a full pension.
Another problem they will face is that of needing emergency medical attention. As they get older the nearer that time approaches. SO if they come back to get that, they will still be able to keep the DSP, but it will no longer be a fully portable DSP, as their status will have to change to permanent australian resident in order to access Medicare.
They might then consider that a shift to OAP would get them portability, but then they come up against the two year residency rule, and the 35 AWLR rule.
This might not happen on a large scale, since it has long been rumoured that many have recovered their health and many in fact were doubtful as to their disabilities in the beginning, but we will never know for sure since once they escaped with portability, they also escaped the review mechanisms.
Are these rumours true? And if they are true, is Social Security run by fools, or political opportunists?
How can the Government do its duty by these disabled people by allowing them to remain abroad without the necessary medical attention to rehabilitate them back into leading productive lives as members of the australian community? It cannot. The government is absconding from its duty of care.
Perhaps what is needed is a hospital ship that can periodically visit these disabled australians so that proper attention can be given to their health and disabilities and their rehabilitation undertaken.
Its strange that questions are not asked in Parliament concerning this group of 8,000.
Where did they come from and how did they get there? That would be a real interesting tale.
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