Lukoki-N'gengu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 779 (13 October 2010)

Last Updated: 13 October 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5480

GENERAL ADMINISTRATIVE DIVISION

)

Re

LILIANE LUKOKI-N'GENGU

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

Date 13 October 2010

Place Sydney

Decision

For the reasons given orally at the conclusion of the hearing held on 7 October 2010, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 16 October 2009. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service and are furnished to the Applicant and to the Respondent as they are the reasons for the Tribunal’s decision.

................[sgd].............................. Ms G Ettinger

Senior Member
CATCHWORDS

Disability Support Pension – portability of pensions – 13 week period – decision under review affirmed
Social Security Act 1991 s 94, 1217, 1218C
Social Security Administration Act 1999

Re Iteh v Secretary, Department of Employment and Work Relations (2006) AATA 814

REASONS FOR DECISION

13 October 2010

Ms G Ettinger, Senior Member

1. These are the ex-tempore reasons in the decision of Lukoki-N’gengu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs. I note that the Applicant informed me this morning that she would be unable to attend for the giving of the Reasons. Ms R Prasad from the Centrelink Advocacy Branch is in attendance.

BACKGROUND

2. Ms Liliane Lukoki-N’gengu, has come to this Tribunal to appeal against the decision of the Social Security Appeals Tribunal dated 16 October 2009. The Social Security Appeals Tribunal decided that Ms Lukoki was not entitled to be paid disability support pension – I will refer to it as DSP – during the period 21 September to 17 October 2008 while she remained outside of Australia. She had left Australia on 22 June 2008 and returned on 18 October 2008, and that is more than the 13 weeks permitted under the legislation for portability of a pension. I note that Ms Lukoki’s DSP was restored immediately on her return.
3. What her absence has also meant is that she was held not to be entitled to receive the Economic Security Strategy payment – that is ESS for short – because she was not eligible for, and not receiving her pension – that is, her DSP – on 14 October 2008.

ISSUES BEFORE THE TRIBUNAL

4. So what do I have to decide? The issue is whether Ms Lukoki is entitled to be paid DSP for the period 21 September 2008 to 17 October 2008, for the period it was suspended, and whether she is entitled to be paid the ESS payment of 14 October 2008.
5. Now, I heard Ms Lukoki give her evidence and make closing submissions, and Ms Prasad of Centrelink, who also made the Respondent’s closing submissions. It is then my task to make a decision.

LEGISLATIVE CONTEXT

6. The relevant legislation which governs the payment of DSP and other benefits is the Social Security Act 1991 (the Act), and the Social Security Administration Act 1999. The qualification for DSP is set out under section 94 of the Act, and there is no question that Ms Lukoki is eligible.
7. Portability of pensions is dealt with pursuant to section 1217 of the Act, which outlines the maximum portability period for payments and allowable absences. It provides that a person’s maximum portability period for the payment of DSP is 13 weeks for any temporary absence. However, there is discretion to extend that period under certain quite stringent conditions, and there are a number of sections of the Act which cover that. The one which is relevant to Ms Lukoki is section 1218C of the Act.
8. In particular, section 1218C(1)(b) provides that the portability period may be extended if the person is unable to return to Australia because of a serious illness of the person or a family member. Section 1218C(2)(a), provides that the discretion to extend the portability period can only be exercised, if the event is serious, and is in the nature of an emergency, and occurred or began during the period of absence and thus prevented the person’s return to Australia within the required 13 weeks. I have noted there is case law such as Re Iteh v Secretary, Department of Employment and Work Relations (2006) AATA 814. That is a 2006 case which makes that clear that the discretion is quite limited.

EVIDENCE AND CONCLUSIONS TO BE DRAWN

9. I noted that Ms Lukoki has been receiving DSP since 12 October 2006. When she left Australia to travel to a United Nations meeting in Belgium on 22 June 2008, she did not inform Centrelink, and her absence was detected through a data match. She told me that she had some knowledge of procedures in Australia, and is much better informed now, since she has been involved in the appeal process.
10. Ms Lukoki told me that she had previously had correspondence from Centrelink, but that the 13-week portability period was not really a concept to her at the time of her travel. What occurred was that on 21 September 2008, payment of her DSP was suspended as a result of her absence for a period of more than 13 weeks. Centrelink confirmed that in a letter of 22 September 2008 advising her that her payments had been suspended.
11. The decision I make regarding whether to extend the portability period to 17 October 2008 must take into account Ms Lukoki’s situation and the evidence she gave about it. She said that she was originally booked to return to Australia from Belgium in September 2008. She said that she could not get a flight until October, but that she did not worry, because in her mind at that time, up to four months would have been a reasonable time to stay away. Ms Lukoki said she was doing her lobbying at the United Nations. She was in Belgium with her family members from the Republic of Congo, whom she misses and had not seen since coming to Australia in the early 2000s, and they were together to also mourn the deaths of family members. The documents which Ms Lukoki tendered were letters and translations of death certificates, for example, regarding her sister who died in the Congo on 28 April 2007, her cousin who died in the Congo on 21 September 2008, and her auntie who died on 28 July 2008 in the Congo, who was a substitute mother to her. Ms Lukoki endeavoured to demonstrate how important death is in the Congo, and how it is celebrated by months or sometimes years of mourning ceremonies. She explained how her family had come together when she was in Belgium and how finally, after awaiting the arrival of various people, a mourning ceremony was arranged by her brother for the period 10 to 12 October 2008, because she insisted they have it before her return to Australia.
12. I noted that such a period was in any event outside the portability period applicable to her. The event held 10 to 12 October was also to be a party to farewell her, she said, because she was leaving on 16 October. Ms Lukoki said it was held in a hall which the family rented. I noted, however, that she was not able to name the place in which it was held, nor further describe the location.
13. Ms Prasad submitted that the claim regarding mourning had not been made to any of the previous decision-makers, including the SSAT. When I asked Ms Lukoki about that, she said she had learned a lot about what evidence she required in support of her claim since she arrived back in Australia, and that no one had asked her the relevant questions earlier.
14. In order to decide whether such an occasion where the deaths of family members in the Congo, obviously important to Ms Lukoki, can pursuant to section 1218C(1)(b), provide for the portability period to be extended is difficult. The legislation requires that the person must be unable to return to Australia because of a serious illness of the person or family member. Family members are defined in section 23 of the Social Security Act. They are said to be:

• the partner or parent of the relevant person;
• a sister, brother, or child of the relevant person; or
• any other person who, in the opinion of the Secretary, should be treated for purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).

15. Now, section 23(14)(b) of the Act defines a family member to include a sister of the relevant person. However, Ms Lukoki’s sister died prior to the Applicant’s departure for Belgium. The sister died on 28 April 2007 in the Congo, and Ms Lukoki told us she mourned her death while she was in Sydney. As the sister’s death did not occur during the period of absence, it cannot be considered an event, which prevented the applicant from returning to Australia.
16. Section 23(14)(c) extends the definition of family member to allow the Secretary, and hence the Tribunal to treat any other person as the relevant person’s relations, namely a partner, parent, sister, brother or child. So any other person can also be defined as a family member under the Act, provided the Secretary or the tribunal, standing in his shoes, decides that that person is a family member.
17. I accepted the respondent’s submission that there is no information before the Tribunal that would allow the applicant’s cousin to be treated as a family member in accordance with the Act. In particular, I noted that the cousin had died on 28 of September 2008, which is, again, outside the portability period. Accordingly, the cousin’s death cannot properly be considered as a trigger capable of extending the portability period.
18. Now, as far as the aunt goes, her death occurred during the portability period on 28 July 2008, but she was in the Congo, and not either in Belgium or in Australia. I understand Ms Lukoki’s claims that her aunt was like a parent to her because she had raised her, her mother having died when she was very young. However, I find that the death of the aunt cannot be treated as an event of a serious or emergency nature that prevented Ms Lukoki from returning to Australia within the portability period. It would not be reasonable to conclude that the death of a family member in Africa prevented her return from Europe to Australia.
19. Accordingly, I was unable to include any of the deceased family of Ms Lukoki as family members under the Social Security Act 1991, even though in Africa, clearly, the extended family is of great importance. I am not satisfied that the discretion in section 1218C(1)(b) can be satisfied in the circumstances of Ms Lukoki’s situation.
20. I noted also that originally Ms Lukoki relied on what she described as aggravated depression to justify her extended stay in Belgium in 2008. When I asked her about that at the hearing, she did not describe any worsening or aggravation of her depression during her trip to Belgium. Ms Lukoki told me, however, that she was depressed in Australia, because as a single African woman, things are difficult to manage, and that she had been abused for five years by a man here.
21. As to her time away, she expressed joy at being close to members of the family whom she had not seen for some years, and being able to undergo a mourning period for deceased relatives in their company. Accordingly, I do not find that any aggravated depression qualifies for extension of the portability period. I am satisfied it simply did not occur.
22. As I cannot find for Ms Lukoki in extending the portability period, I must affirm the decision of the Social Security Appeals Tribunal in regard to the period when she was not eligible to receive Disability Support Pension due to exceeding 13 weeks out of Australia. This means she was not receiving DSP for the period under review, being 21 September to 17 October 2008, and cannot receive it for that period.
23. I then considered Ms Lukoki’s eligibility to receive the Economic Security Strategy payment, known also as ESS. Section 900 of the Act provides that a person is qualified for an ESS payment if they received a payment of DSP on 14 October 2008.
24. As Ms Lukoki was not eligible to receive DSP, and was not receiving any other Australian pension at 14 October 2008, she is not eligible to receive ESS.

DECISION

25. Accordingly, I must confirm the decision under review, which means Ms Lukoki’s application, has been unsuccessful.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.

Signed: .....................................................................................

Associate

Date of Hearing 7 October 2010

Date of Decision 13 October 2010

The Applicant Self Represented

Interpreter (French) Mr Sieur
Solicitor for the Respondent Ms R Prasad