Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis: Travelling Overseas on a Disability Support Pension

The Federal Court of Australia in Victoria has ruled that the phase employed in s 1213 of the Social Security Act 1991, namely a “person … continuously absent from Australia,” should be given its natural and ordinary meaning, referring to a person absent without interruption. 

In a unanimous decision, the Court allowed the appeal by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs against an earlier decision in 2011, where it was decided that Mr. Mouratidis was entitled to a continuation of his Disability Support Pension payment, despite a period of absence from Australia.

The facts centred around the issue of when and how a Disability Support Pension ceases to be payable when the recipient leaves Australia.  Under the Social Security Act, a person in receipt of a DSP is entitled to receive those payments for a period of 13 weeks after he or she leaves Australia, unless the period is extended. The question, then, became whether the power to extend can be exercised in respect of a period of absence after the person concerned has returned to Australia, and then departed again.

The primary judge proposed that a period of absence can continue, or can be extended, after absence has ceased. However, the Court on appeal held that the primary judge was in error in dismissing the appeal, and that the decision of the Administrative Appeals Tribunal should be set aside, to be heard and decided again. In his judgment, Flick J noted that “the Tribunal will then have an opportunity to do what it has failed to do, namely to focus on the question whether the portability period…can and should be extended.”

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