Polydorou v Secretary, Department of Social Services

INTRODUCTION AND SUMMARY 1 The applicant, Mr Polydorou, has appealed from a decision of the Administrative Appeals Tribunal (the AAT). The AAT determined the date from which a decision of the Social Security Appeals Tribunal (the SSAT), favourable to the applicant, on the "portability" of his disability support pension while he was in Cyprus, could take effect. 2 For the reasons I set out below, and recognising the applicant's characterisation of the legal position he finds himself faced with as "unfair", his appeal must be dismissed.

FACTS AND PROCEDURAL HISTORY 3 There are no contentious factual matters in this appeal. The summary I set out here is taken from the material before the AAT. 4 Since November 2006, the applicant has received a disability support pension pursuant to the Social Security Act 1991 (Cth) (the Act). On 5 October 2010, the applicant left Australia and travelled to Cyprus to care for his mother, who was very ill. On 4 January 2011, an officer of Centrelink wrote to the applicant to notify him that, because he had remained overseas for more than the maximum period of 13 weeks without seeking an extension of this period, his pension had been suspended. Payments to the applicant ceased effective 3 January 2011. On 5 April 2011, Centrelink cancelled the applicant's pension. 5 Although he had originally intended to stay away from Australia for a period of approximately three months, a number of events occurred while he was in Cyprus which prolonged his stay. He had medical and dental problems. His wife in Australia sought to divorce him, his depressive disorder and other psychiatric conditions were exacerbated, and his mother became gravely ill and died in February 2011. He planned to return to Australia several times, but was not well enough to do so. He gave evidence to the SSAT that while he was in Cyprus, he received a pension from the Cyprus government of 294 Euros per month. 6 On 28 January 2012, the applicant returned to Australia. Promptly, on 31 January 2012, he contacted Centrelink by telephone to make a further claim for a disability support pension. A package of forms was sent to him on that day for him to complete and return to Centrelink by 14 February 2012. Accordingly, on 14 February 2012, he lodged a further application for a disability support pension. His claim was initially rejected by Centrelink but, after internal review by an authorised review officer, on 28 June 2012 his claim was approved and payments to him were backdated to 31 January 2012. 7 Therefore, it is correct to say that the applicant received disability support payments on and from 31 January 2012, even though in part they were received by way of a backdated lump sum payment. 8 Although he was receiving his pension from this date, the applicant remained dissatisfied that his pension had been cancelled while he was in Cyprus, and he had missed out on payments for a period of approximately a year. He told the AAT that, when he had spoken to Centrelink in January and February 2012, he had asked for "back payments". Centrelink's records did not record any such request by the applicant. 9 On 20 December 2012, the applicant contacted Centrelink by telephone, requesting that it reconsider the cancellation decision of 5 April 2011 and give him back-payments of his pension for the period from 4 January 2011 to 27 January 2012, while he was in Cyprus. He told both the SSAT and the AAT that he did not call until December 2012 because he did not understand he needed to lodge a specific application or appeal about the cancellation decision. 10 On 24 June 2013, an authorised review officer affirmed the cancellation decision and the decision not to pay the applicant for the period 4 January 2011 to 27 January 2012. On 8 July 2013, the applicant applied for review of that decision in the SSAT. 11 A hearing before the SSAT was conducted on 9 August 2013, where the applicant gave evidence, assisted by a Greek interpreter. The SSAT accepted the applicant's evidence about what prolonged his stay in Cyprus. It found on this evidence that he satisfied the requirements in s 1218C of the Act for the "portability period" of his pension to be extended, on a discretionary basis, beyond the statutory limit of 13 weeks. 12 It went on then to consider the date of effect for this favourable determination, as it was required to do. That required the SSAT to examine the terms of ss 109 and 237 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which are set out below and which are dealt with in more detail later in these reasons. The SSAT concluded the effective date was the date on which the applicant sought review of the cancellation decision: namely, 20 December 2012. Since he had in fact received his pension since January 2012, no additional payments were due to him. 13 The SSAT therefore affirmed Centrelink's decision not to pay the applicant disability support pension for the period 4 January 2011 to 27 January 2012. A copy of the SSAT's reasons was provided to the applicant by post on 15 August 2013. On 17 September 2013, the applicant sought review of the SSAT decision in the AAT. 14 The application for review was heard in the AAT on 10 June 2014. In reasons provided orally at the conclusion of the hearing, the AAT affirmed the decision of the SSAT. It adopted the same reasoning as the SSAT. Written reasons of the AAT were delivered five weeks later: Polydorou and Secretary, Department of Social Services [2014] AATA 478. 15 By a notice of appeal filed with this Court on 8 July 2014, the applicant appeals the decision of the AAT under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).