7.1.2.10 General Rules of Portability

Summary

Generally, there are 2 standard portability periods:

• indefinite portability period, or
• limited 6 weeks portability.

 

However, these rules do not apply to recipients who are covered by an international social security agreement (7.1.1.20) and are going to the agreement country.

 

Unlimited portability period

Age, WidB and WP 'entitled' (1.1.E.120) persons generally have an indefinite portability period. BVA is portable for the period of the payment.

 

Indefinite portability of DSP - terminally ill disability support pensioners

In special circumstances recipients of DSP who are leaving Australia permanently and who are in the terminal phase of a terminal illness - where life expectancy is less than 2 years may be granted unlimited portability if they are:

• severely disabled (1.1.S.110), and
• the purpose of the absence is to be near or with a family member; or to return to their country of origin.

 

Note: A carer accompanying a DSP recipient with terminal illness should be regarded as going overseas for a temporary period and therefore may be entitled to 6 weeks portability.

 

Act reference: SSAct section 1218AA Unlimited portability period for disability support pension-terminally ill overseas disability support pensioner

 

Indefinite portability of DSP - severely impaired disability support pensioner

From 1 July 2012 DSP recipients with a severe and permanent impairment and no future capacity to work are eligible for indefinite portability of their pension. DSP recipients applying for portability under these provisions are required to undergo a portability assessment which includes an assessment of their impairment and their future work capacity (JCA).

 

To be eligible for indefinite portability under these rules, a DSP recipient must:

• have a severe impairment (1.1.S.127) which will persist at this level for at least the next 5 years (i.e. no significant improvement is expected to the level of impairment within this period), and
• have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years, or
• be assessed as manifestly eligible for DSP under the current (post December 2002) manifest criteria.

 

A DSP recipient is accepted as being prevented from performing any work if, because of their impairment, they are deemed unlikely to have any capacity to undertake work in the open employment market in the next 5 years, even with interventions.

 

For the purpose of these provisions, 'work' means work that:

• is on wages that are at or above the relevant minimum wage, and
• exists in Australia, even if not within the recipient's locally accessible labour market.

 

DSP recipients need to apply for portability under these provisions while in Australia and are required to undergo a portability assessment before departure.

 

Generally, those recipients who are overseas will need to return to Australia to undergo a portability assessment under these provisions.

 

An exception to the requirement to return to Australia for an assessment will apply in limited circumstances where a DSP recipient is unable to return to Australia because they have had a serious accident, or been hospitalised, before the end of their current portability period.

 

Act reference: SSAct section 1218AAA Unlimited portability period for disability support pension-severely impaired disability support pensioner, section 94(3B) Severe impairment, section 94(4) Doing work independently of a program of support

Policy reference: SS Guide 3.6.1.50 Payability of DSP, 3.6.2.20 Manifest Grants & Rejections for DSP

 

Limited portability period

All other payments generally have a limited portability period of 6 weeks.

 

There may be other special restrictions (for example only payable for certain reasons such as acute family crisis).

 

Some payments are also payable for longer than 6 weeks overseas if the person is studying outside Australia as part of their full-time Australian course.

 

DSP (not terminally ill or severely impaired) can generally only be paid for 6 weeks of a temporary absence. WP and WidB (not entitled) can generally only be paid for 6 weeks of either a temporary or permanent absence.

 

All other payments with limited portability can only be paid for up to 6 weeks of a temporary absence and should be cancelled immediately on permanent departure.

 

This period begins on the first day of absence and ends either on the earlier of:

• the first day at which the absence is not allowed, or
• after the 6 week period has ended.

 

Ancillary payments

If a recipient intends to go overseas temporarily, RA, IA and PhA are payable for the same length as their substantive payment or up to 26 weeks. The person must also remain qualified for the ancillary payment (e.g. paying qualifying rent).

 

TAL is only portable for 6 weeks because it is not an ancillary payment under SSAct section 1216 of the portability rules.

 

Pension supplement cannot be paid outside Australia for more than 6 weeks. However, pension supplement (basic amount) can be paid outside Australia for the length of the allowable portability period.

 

A person qualifies for RAA for temporary absences of up to 8 weeks from their usual place of residence, including overseas absences.

 

Ancillary payments should be cancelled immediately if departure is permanent (even if the substantive payment remains payable).

 

Act reference: SSAct section 14(2) If a person's usual place of residence…, section 1216 Amounts added to rate

Policy reference: SS Guide 7.1.2.20 Portability Table

 

Temporary versus permanent absence

A recipient is considered to be going temporarily overseas if the recipient permanently resides in Australia. In deciding whether or not a recipient is residing in Australia, consideration must be given to the nature of: accommodation, family relationships, employment, business or financial ties, as well as the FREQUENCY and DURATION of the recipient's travel outside Australia (section 7(2) and section 7(3)).

Explanation: Recipients in receipt of payments that have a limited portability period who frequently travel overseas and return to Australia only to renew their portability period MAY NOT satisfy the qualifying residence criteria for the payment.

 

Act reference: SSAct section 7(2) An Australian resident..., section 7(3) Residing in Australia

 

Portability for specific reasons

Certain payments (generally workforce linked) can only be paid where the recipient is temporarily overseas for specific reasons, and in some cases, if exempt from the activity test. In these cases the limited period will further be limited to the period during which the reason continues to be satisfied. These absence reasons are listed in column 4 of the SSAct section 1217(4).

 

Act reference: SSAct section 1217(4) Meaning of portability period if maximum portability period limited

 

Discretion to extend the limited portability period

The discretion to extend the limited portability period applies only to recipients who:

• receive a payment where portability is limited, such as DSP, NSA, CP or PA etc,
• are overseas,
• cannot return to Australia before the limited portability period ends (generally 6 weeks), and
• are not able to return because an extreme event or emergency situation as specified in (section 1218C) prevents their return, or
• are receiving financial assistance under the Medical Treatment Overseas Program (MTOP) in respect to the person's absence from Australia or needs to accompany such a person (section 1218D).

 

A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.

 

The delegation for the decision to allow a discretionary extension rests with staff at the C3 level and above in CIS in Hobart.

 

It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this) - extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.

 

Act reference: SSAct section 1218C Extension of person's portability period-general, section 1218D Extension of person's portability period-life-saving...

 

Reasons for allowing a discretionary extension

A discretionary extension may be allowed where the delegate is satisfied a recipient is prevented from returning to Australia before the end of the portability period. The reasons for allowing a discretionary extension are specified in SSAct section 1218C:

• if the person or a family member of the person (section 23(14)) is:
  • involved in a serious accident,
  • seriously ill,
  • hospitalised, or
  • the victim of a robbery or serious crime,
• if the person is:
  • involved in custody proceedings,
  • required to remain overseas in connection with criminal proceedings, other than in respect of a crime alleged to have been committed by the person,
  • unable to return because of war, industrial action, or social or political unrest in which the recipient is not willingly participating, or
  • unable to return because of natural disaster,
• if a family member dies.

 

The event preventing the person's return to Australia must be extreme or of an emergency nature and must have occurred or begun during the allowable portability period.

Note: A discretionary extension cannot be applied until the allowable portability period has expired.

Example: A person on NSA has been allowed a portability period of 2 weeks to attend the funeral of a parent and while overseas is required to extend their stay to attend legal proceedings associated with the parent's will. This is an acceptable reason for NSA portability and a decision can be made to allow a further period of NSA portability. There is no need to consider a discretionary extension if the total overseas absence will not exceed 6 weeks.

 

Note: Section 1218D also allows for a discretionary extension if a person is receiving financial assistance for that absence under the MTOP. If a person is entitled to a portability extension under section 1218D there is no requirement that the event preventing the person's return to Australia occurred or began during the allowable period of absence.

 

It should also be noted that a person who needs to accompany someone receiving assistance under MTOP is also entitled to a discretionary extension.

 

Section 1218AB also allows for a discretionary extension for a DSP recipient if the recipient has a family member who is posted overseas for work and on whom the recipient wholly or substantially depends. A person who is entitled to a portability extension under section 1218AB is not required to show they were prevented from returning to Australia because of an event that occurred overseas.

 

Act reference: SSAct section 23(14) For the purpose of this Act other than Part 2.11..., section 1218AB Extended portability period for disability support pension

Family Assistance, Social Security and Veterans' Affairs Legislation Amendment (2005 Budget And Other Measures) Bill 2006 - Explanatory Memorandum

Policy reference: SS Guide 7.1.2.20 Portability Table

 

Rate during discretionary extension period

A person is generally paid the same rate as during their allowable portability period. If a person is qualified for TAL, IA, PhA or RA, these are included in the rate during the extended period.

 

Pension supplement cannot be paid outside Australia for more than 6 weeks. However, pension supplement (basic amount) can be paid outside Australia for the length of the allowable portability period.

 

Departure - notification obligation

From 20 September 2000 recipients do not have to obtain a departure certificate before leaving Australia. They must nonetheless notify Centrelink about both their departure and their arrival back into Australia.

 

Date of effect rules for portability

The rules that follow relate to recipients who have been cancelled, or who have had a rate reduction because of portability.

 

The date-of-effect rules for the decision will be based on the standard 'review of decision' rules in the SS(Admin)Act. The date-of-effect rules determine whether they are due arrears or not. This means:

• if the recipient was notified of the cancellation/reduction and applies for a review WITHIN 13 weeks of when the cancellation or reduction notice was given, they are entitled to full arrears back to the date of cancellation (section 109(1)).
• if the recipient was notified of the cancellation/reduction and applies for a review MORE THAN 13 weeks after the cancellation or reduction notice was given, they are only entitled to arrears from the date of the request for a review (section 109(2)).
• if the recipient WAS NOT NOTIFIED of the cancellation/reduction and applies at ANY TIME for a review, they are entitled to arrears back to the date of the original cancellation or reduction decision. This would include where no advice was sent, or the advice was not sent to the last known mailing address (section 109(3) and section 237(3)).

 

Act reference: SS(Admin)Act section 109(1) through to section 109(3) Date of effect of favourable determination resulting from review, section 237(3) If notice of a decision is given in accordance...

 

Person returns to Australia after a rate reduction

Decisions that have been applied to reduce a recipient's payment and they return to Australia AFTER that reduction, are governed by the 'favourable determination after notification' provisions. This could be because the recipient has been outside Australia for a period and add-ons cease and/or they are proportionalised. In these cases, the date of effect is the date of receipt of the advice, or the date of the event, whichever is later.

 

Act reference: SS(Admin)Act section 110 Date of effect of favourable determination

 

Person returns to Australia after cancellation

The situation where a recipient's payment is cancelled CORRECTLY and they return to Australia AFTER that cancellation requires that the recipient lodge a new claim to regain qualification. This could be, for example, because they have been outside Australia for a period.

 

Cancellations where a discretionary extension would have applied

It is also possible that a recipient who has been cancelled on account of their having a limited portability period, had their circumstances been known, would have been granted a discretionary extension. In such cases, the original cancellation would be overturned and the new decision (that portability be extended) applied.

_______________________________________________________

Last reviewed: 2 January 2013