Douvartzidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 519 (28 July 2011)

Last Updated: 28 July 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 519

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1059

GENERAL ADMINISTRATIVE DIVISION		)
	Re		STILIANOS DOUVARTZIDIS

Applicant

And

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

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 28 July 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

................[Sgd]..................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Pensioner supplement amount – Portability while outside of Australia limited to 13 weeks – Pension supplement amount payable at the basic rate after 13 weeks – Use of the Guide to Social Security Law – Decision under review affirmed

Social Security Act 1991 (Cth) ss 1064BA, 1217

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82

REASONS FOR DECISION

28 July 2011

Mr R G Kenny, Senior Member

BACKGROUND

1. Stilianos Douvartzidis was in receipt of the age pension under the Social Security Act 1991 (Cth) (“the Act”) when he travelled from Australia to Greece on 25 June 2010. He was accompanied on the trip by his carer, Jeanne Ritchie. The trip was made to enable Mr Douvartzidis to see his sister, who was in ill-health. On 6 July 2010, Centrelink wrote to Mr Douvartzidis and advised him that he would continue to receive the age pension for the period he planned to be in Greece but that the rate of his pension supplement may change on 24 September 2010. That date marked the end of a period of 13 weeks after Mr Douvartzidis and Mrs Ritchie departed from Australia. A file note of 6 July 2010 also indicates that Centrelink decided that the full pension supplement amount would not be paid to Mr Douvartzidis if he was still outside of Australia after 24 September 2010. After his return to Australia on 18 October 2010, Mrs Ritchie sought review of the decision which reduced his pension supplement to the basic amount only from 25 September 2010 to 17 October 2010. On 18 November 2010, an authorised review officer reviewed and affirmed that decision. In turn, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision on 17 February 2011.

CONTENTIONS

2. For the respondent, Ms Brazier submitted that the full pension supplement amount was payable to Mr Douvartzidis only for a total of 13 weeks of his absence from Australia, and that it would then reduce to the basic pension supplement amount only. She submitted that the last date on which Mr Douvartzidis was entitled to receive the full pension supplement amount was 24 September 2010.
3. Mrs Ritchie, who spoke on behalf of Mr Douvartzidis, submitted that Centrelink had provided incorrect information about the portability of benefits and that she and Mr Douvartzidis both understood that Mr Douvartzidis would continue to receive the full pension supplement amount for up to 26 weeks of absence from Australia. Mrs Ritchie also submitted that a copy of the general rules of portability should have been made available to Mr Douvartzidis before departing from Australia.

LEGISLATION AND ISSUES FOR DETERMINATION

4. The portability of Mr Douvartzidis’ age pension is of unlimited duration as provided for in s 1217(1) of the Act. However, the pension supplement amount is an ancillary payment provided for in s 1064-BA of the Act. Under s 1064-BA1 of the Act, the pension supplement amount is added to the person’s maximum basic rate of pension. Under s 1064BA2 of the Act, provision is made for recipients who are in Australia or absent from Australia for a continuous period of no more than 13 weeks. That is not applicable to Mr Douvartzidis, as he was absent from Australia for more than 13 weeks. Where a recipient is absent from Australia for more than 13 weeks, s 1064-BA5 provides that the pension supplement amount is the person’s pension supplement basic amount, rather than the full pension supplement amount. The issue for determination is whether Mr Douvartzidis’ circumstances are embraced by that provision.

EVIDENCE

5. Mrs Ritchie described Mr Douvartzidis as the patriarch of his Greek family whose members wanted him to return to Greece to see his sister, as he was aware that she was in ill-health. Mr Douvartzidis and Mrs Ritchie arranged to travel from Australia to Greece on 21 July 2010 and to return on 18 October 2010. On learning that Mr Douvartzidis’ sister was seriously ill, they brought forward their departure to 25 June 2010 but left the return date unchanged. Mrs Ritchie attended a Centrelink office on 17 June 2010 and advised a Centrelink officer of these arrangements. At the office, Mrs Ritchie completed and lodged a statement in which she gave her departure and return dates. However, parts of the statement were not completed: these included the date of the statement, Mrs Ritchie’s signature or the type of income support that she was receiving.
6. Mrs Ritchie was critical of the Centrelink officer’s failure to advise her that the pension supplement amount would reduce where an age pension recipient was absent from Australia for more than 13 weeks. She said that, if she had been advised of the 13 week limitation, she would have arranged for Mr Douvartzidis to return to Australia earlier. The first indication that Mr Douvartzidis had of the reduction in his pension supplement amount was after returning to Australia and accessing the mail which had been sent to him at their address in their absence. This included the letter from Centrelink, dated 6 July 2010, which advised of the reduction in the pension supplement amount after a 13 week period.
7. Mr Douvartzidis’ sister died on 14 July 2010. He and Mrs Ritchie remained in Greece for the appropriate mourning period and in order for Mr Douvartzidis to carry out his patriarchal duties, which included visiting with the family’s matriarch who was aged 103 years.

CONSIDERATION

8. In evidence was a Centrelink file note which declared that Mrs Ritchie had attended a Centrelink office on 6 July 2010. Clearly, that entry is inaccurate as she was in Greece with Mr Douvartzidis at that time. Ms Brazier conceded that this was an error and said that she understood that the file note referred to a date on which Mrs Ritchie’s departure details were notified to Centrelink by the Australian immigration authorities.
9. I have noted Mrs Ritchie’s concern that neither she nor Mr Douvartzidis were made aware by Centrelink of the document which sets out general rules of portability until long after their return to Australia. Ms Brazier advised that this was contained in the Guide to Social Security Law (the Guide) and the Guide was not routinely sent to all recipients of social security payments. The Guide is published by the respondent to provide guidance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines of the kind set out in the Guide, may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so^[1]. In this case, there is no material before the Tribunal to indicate that the Guide should not be applied. Section 7.1.2.20 of the Guide sets out a table which shows for how long and under what conditions payments are portable. It includes the following for the pension supplement amount:

Payment	Recipient	Absence	Period	Special conditions
Pension supplement	All	Any temporary	Up to 13 weeks	People residing in Australia may receive total pension supplement during a temporary absence of up to 13 weeks.
Pension supplement basic amount	All	Any absence	Same as substantive payment	For non-residents and temporary absences over 13 weeks, only the basic amount (GST supplement) of pension supplement can be paid.

10. Those entries are consistent with the provisions of the Act noted above.
11. I accept as correct the version of events given by Mrs Ritchie on behalf of Mr Douvartzidis. Unfortunately, she was not advised that Mr Douvartzidis’ pension supplement amount would be reduced after a 13 week absence from Australia. Although Centrelink wrote to him on 6 July 2010 advising him of the 13 week limitation, Mr Douvartzidis did not receive that letter until after he returned from his travel to Greece. I also accept that receiving that information at that time became a matter of much concern to both Mr Douvartzidis and Mrs Ritchie. Nonetheless, the extent of the portability of Mr Douvartzidis’ pension supplement amount must be determined by the provisions of the Act.
12. Under s 1064-BA5 of the Act, Mr Douvartzidis’ pension supplement amount is only payable at the basic rate after a period of 13 weeks of absence from Australia. Accordingly, only the basic pension supplement amount was payable to him while he was in Greece from 25 September 2010 until 17 October 2010.

DECISION

13. The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: .....................[Sgd].............................................

Danielle Armstrong, Research Associate

Date/s of Hearing 28 June 2010

Date of Decision 28 July 2011

Applicant was represented by Mrs Ritchie

Solicitor for the respondent was Michelle Brazier, departmental advocate

---

^[1] Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 86.