Post by Banjo on Oct 22, 2012 7:45:06 GMT 7
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.
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.