ADDITIONAL COMMENTS
COALITION SENATORS
2.1 Senators believe that whilst limits on portability
of the Disability Support Pension (DSP) are necessary, these limits are proving
punitive to a small class of recipients owing to circumstances beyond their
control. In particular, recipients with a severe disability who have impaired
decision-making capacity.
2.2 Such recipients, who by virtue of their disability
are unable to make their own decisions, can find themselves travelling overseas
because of the decision of their carer. As a consequence if the recipient
travels to a country without a social security treaty, they forfeit their
pension after 13 weeks.
2.3 This situation is not only punitive to the DSP
recipient but also to their guardian, whose career options in particular are
limited by the restricted portability of the DSP entitlement of the person for
whom they are caring.
2.3 The Committee heard evidence from a carer in this
situation, Mr Hugh Borrowman, who together with his wife is the legal guardian
and carer of his severely intellectually disabled adult son.[1]
Mr Borrowman described how the current situation affects him and his family:
I would like to invite you to consider what the
alternatives are for people in our situation. Is it to give up our son’s care
to the state? Clearly, that is not a possibility, but I would invite you to
consider the economic and social cost of actually doing that. Is it not to
follow the career option that I have chosen? I do not know how that squares
with modern sentiments about carers in our community, as exemplified in my
submission and in the Carer Recognition Bill 2010, which includes ‘the
fundamental principle that all carers should have the same rights, choices and
opportunities as other Australians’. Should DFAT, the defence forces, BHP,
anybody operating in an international environment add a rider to their job ad
saying, ‘Carers need not apply’?[2]
2.4 Senators contend that as the current DSP
arrangements are preventing quality individuals from serving Australia overseas
and there is clearly an issue that needs to be systematically addressed.
2.5 DSP recipients such as Mr Borrowman’s son should
not lose their entitlements when their carers and legal guardians move overseas
for work. Mr Borrowman expressed the inherent unfairness in taking away a
disability support pensioner’s entitlement in these circumstances:
The social security system deems my son as making a
choice to go and live somewhere else. He cannot make that choice. The law
recognises that. He has no concept of that choice. It is just not a meaningful
concept and yet he is being penalised for it because in pursuit of our lives,
which are all bound up, we would need to take him with us or not go.[3]
2.6 Senators reject the view of FaHCSIA that
guardianship orders are always an inappropriate vehicle for determining
portability arrangements.[4]
The use of guardianship orders, as a means for determining eligibility for an
exemption to cover recipients such as Mr Borrowman’s son, may not suit all but would
not affect the existing informal care arrangements of others. The FaHCSIA
submission appears to suggest that all informal care arrangements would
suddenly need to be formalised through guardianship orders. Plainly this is not
the case. Except for a very small number of recipients who find themselves in
the situation described above, there will be no need for anyone not currently
subject to a guardianship order to become subject to one.
2.7 The provision of an exemption for recipients needs
to be clearly defined so that it is not open to exploitation. In particular, an
exemption needs to be carefully targeted to capture DSP recipients who are
severely intellectually disabled, are unable to make their own decisions, and
are travelling overseas with their carer who is doing so for work purposes. A
guardianship order can be a mechanism for demonstrating that an individual does
not have their own decision-making capacity.
2.8 Senators are also sceptical of FaHCSIA’s view that
an exemption based on guardianship orders would be difficult for Centrelink to
administer. Senators consider that Centrelink has the capacity to monitor such
an exemption just like any other circumstance that is monitored as a matter of
course. Additionally, the exemption would only be expected to be taken up by a
very small number of recipients.
2.9 It is recognised, however, that guardianship
orders may not cover all recipients who are nevertheless severely disabled and
without their own decision-making capacity. It is further recognised that
guardianship orders require a comprehensive, difficult and often lengthy
application process. Therefore the use of guardianship orders may not,
therefore, resolve the issue for all DSP recipients in this situation. For
example, a DSP recipient whose carer is a member of the ADF and the carer is
ordered overseas on deployment at short notice.
2.10 Senators also express disappointment at FaHCSIA’s
unwillingness to discuss solutions to the issue before the Committee.
Correspondence between affected stakeholders and the former Parliamentary
Secretary for Disabilities demonstrates that FaHCSIA has been aware of the
particular issue of DSP portability for recipients such as Mr Borrowman’s son
for more than 12 months. That is more than enough time for the Department to
have developed a workable solution to the problem. It is not good enough for
Departments to appear before Senate Committees prepared to discuss only why
something can’t be solved in a particular way, rather than to discuss
solutions. Surely Senate Legislation Committees are an appropriate forum to
find solutions to legislative issues so that appropriate amendments can be
introduced and debated in the Senate.
2.11 It was also clear to the Committee that FaHCSIA has
given thought to the issue as the Department developed a specific offer of
compensation for the loss of Mr Borrowman’s son’s DSP entitlement as part of
negotiations to secure Mr Borrowman’s appointment as Australia’s Ambassador to Sweden.[5]
It is of concern to Senators that this process of seeking a solution was not a
broader one focussed on achieving a systemic change to benefit anyone who finds
themselves in this situation.
2.12 The view of Government Senators, that FaHCSIA and
the Minister be left to examine ways in which to address this situation, is a
recipe for further inaction. Both the Government and FaHCSIA have had ample
time to adequately address the issue. The time has come for action.
Recommendations
1. That
the Bill be supported with an amendment to address the portability issue
affecting DSP recipients with a severe disability and impaired decision-making
capacity and whose carers are travelling overseas for work purposes.
2. That
the Government reviews the assessment processes for Disability Support Pension
recipients with a view to removing the ongoing requirement for all individuals to
satisfy re-assessments where the individual is severely disabled and has no
prospect of recovery from their disability or of their condition improving to a
point where they may be able to work and support themselves.
Senator Mitch Fifield
Senator Sue Boyce
Senator Judith Adams
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