7.1.2.10 General rules of portability

Summary

The portability period for social security payments varies depending on the payment. Portability rules by payment type can be found in the portability table (7.1.2.20).

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

Unlimited portability period

Age can be paid overseas indefinitely. Payment may be proportionalised (7.2.2.10) after 26 weeks overseas absence depending on the person's AWLR.

Note: Unlimited portability previously also applied to WidB and WP 'entitled'. WidB and WP ceased from 20 March 2020 and recipients were transferred to Age or another payment where eligible.

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 the allowed portability period for the qualifying payment.

Indefinite portability of DSP - severely impaired disability support pensioner

From 1 July 2012 DSP recipients with a permanent and severe 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 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 indefinite portability under these provisions while in Australia and are required to undergo a portability assessment before departure.

Generally, those recipients who are overseas and intend to apply for indefinite portability 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.

Limited portability period

The allowed portability period for payments can be found at 7.1.2.20.

Some working age payments, such as PP and CP, can be paid for any temporary absence of up to 6 weeks, unless granted a discretionary extension. Other payments such as JSP can only be paid for temporary absences of up to 6 weeks for specific reasons (see below).

From 1 January 2015, DSP recipients (not granted indefinite portability) can generally only be paid for 4 weeks, in a rolling 12-month period, for a temporary absence. DSP recipients who exceed the 4-week temporary portability period, without a discretionary extension or additional portability period, will have their payment suspended. If their DSP has been suspended, it can be restored once they return to Australia without needing a new claim. If they remain outside Australia more than 13 weeks from the date of suspension, their payment will be cancelled and they will need to reclaim the payment on return to Australia. A new claim is appropriate in order to establish that the person's circumstances have not changed and they are qualified for DSP. DSP should be cancelled from the date of departure if the recipient advises that their intention is to depart permanently and they have not been granted indefinite portability.

Payments with an allowed portability period for a temporary absence should be cancelled immediately on permanent departure.

Limited portability for specific reasons

JSP, SpB, YA and Austudy can be paid overseas where the recipient is temporarily overseas for specific reasons and, in some cases, if the recipient is exempt from mutual obligation or study requirements. These absence reasons are listed in column 4 of SSAct section 1217(4) and include:

• seeking eligible medical treatment
• attending to an acute family crisis, or
• for a humanitarian purposes (JSP, SpB and YA (other) only).

A person can only be granted portability in these circumstances for the length of time considered appropriate to deal with the particular circumstances and up to the maximum allowed period (6 weeks), unless granted a discretionary extension.

DSP recipients can also be granted an additional portability period of up to 4 weeks for temporary absences for 1 of the above reasons.

If a person is studying outside Australia as part of their full-time Australian course, or they are working or training under an Australian Apprenticeship, certain payments (e.g. YA (student) and Austudy) may be payable for the duration of their studies or apprenticeship.

Ancillary payments

A list of allowable portability periods and conditions for ancillary payments is provided in 7.1.2.20.

Ancillary payments (except for pension supplement basic amount) should be cancelled immediately if departure is permanent even if the substantive payment remains payable. This is because the person is no longer residing in Australia and therefore no longer qualifies for the ancillary payment.

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.

Departure & arrival times for temporary absences

Services Australia uses the date of departure and arrival provided by the Department of Home Affairs through a data sharing arrangement. This is based on the date of clearance through immigration.

If a person's departure or arrival is delayed due circumstances outside of their control (e.g. their flight is significantly delayed) and they are able to provide evidence of alternative dates, Services Australia may consider using the alternative dates if it would result in a beneficial outcome for the recipient.

Discretion to extend the portability period

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

• receive a payment where portability is limited to a maximum period of up to 6 weeks, such as CP and PP, or
• receive a payment where portability is limited to a maximum period of up to 6 weeks for specific reasons only, such as JSP, YA and Austudy, or
• receive DSP with a portability limit of 4 weeks in a 12-month period, and
• are overseas and cannot return to Australia before the allowed portability period ends because an extreme event or emergency situation as specified in SSAct section 1218C, 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.

Age and other recipients entitled to indefinite portability can also apply for a portability extension if they are temporarily overseas and unable to return to Australia within 26 weeks. Normally after 26 weeks overseas, payment may be proportionalised based on the person's AWLR and certain supplements (RA and IA), will cease. If granted an extension of the 26-week period, the person's payment rate will not be proportionalised and supplements can continue to be paid, provided the person otherwise remains eligible.

Age and other recipients saved under the pre-20 September 2000 portability rules and/or pre-1 July 2014 rules, and who normally reside overseas, can also request a portability extension if they are temporarily in Australia and unable to leave Australia within 26 weeks. Normally after 26 weeks in Australia, they cease to be covered by the savings provisions. If granted an extension of the 26-week period, they will continue to be covered by the savings provisions.

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 (or to their usual country of residence in the case of pensioners saved under the pre-2000 and/or pre-2014 rules). Should a person be unable to return to Australia or their home country on expiry of the new allowable portability period, the case can be assessed and a further extension may be granted if appropriate.

The delegation for the decision to allow a discretionary extension is limited to specified staff in Services Australia.

It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia (or their home country as the case may be). It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia or their home country 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).

In the case of age pensioners and other pension recipients entitled to indefinite portability who are overseas and unable to return to Australia, an extension is only available if the recipient's absence from Australia is temporary. Recipients who reside overseas but return to Australia periodically are not eligible for an extension if they are unable to travel to Australia when they otherwise would have.

Age pensioners and other recipients entitled to indefinite portability who are temporarily overseas or in Australia, and are granted an extension, will cease to be eligible for the extension if they are no longer considered temporarily absent from Australia or their usual country of residence (e.g. if they have decided to reside permanently overseas or in Australia as the case may be) - see 'temporary versus permanent absence' above.

Portability extensions for age pensioners or other pension recipients entitled to indefinite portability are available to people:

• whose temporary absence from Australia (or their usual country of residence) starts on or after 1 July 2021
• whose temporary absence from Australia (or their usual country of residence) starts before 1 July 2021 but who reach the end of the allowable 26-week period on or after 1 July 2021
• whose temporary absence from Australia (or their usual country of residence) started before 1 July 2021 and who had an extension in place up until 1 July 2021 under the temporary COVID rules introduced in the Social Services Legislation Amendment (Strengthening Income Support) Act 2021.

Reasons for allowing a discretionary extension

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

• if the person or a family member of the person 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 in the country in which they are located
  • legally 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 the country in which they are located and in which the recipient is not willingly participating, or
  • unable to return because of natural disaster in the country in which they are located
• if a family member dies.

A discretionary extension for payments with an indefinite portability period may be allowed where the delegate is satisfied a recipient is prevented from returning to Australia (or to their usual country of residence) before the end of the 26-week period for one of the reasons specified in SSAct section 1216(3), section 1220A(1B), section 1220B(1B) or subclause 128(1B) of Schedule 1, or in Social Services and Other Legislation Amendment Act 2014 subitem 6(7) or subitem 14(9) of Schedule 4:

• if the person or a family member of the person 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 in the country in which they are located (or in Australia as the case may be)
  • legally required to remain overseas (or in Australia as the case may be) 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 the country in which they are located and in which the recipient is not willingly participating, or
  • unable to return because of natural disaster in the country in which they are located (or Australia as the case may be)
  • affected by a public health crisis affecting Australia or the country in which the person is located or both
• if a family member dies.

The event preventing the person's return to Australia (or their usual country of residence) must be extreme or of an emergency nature and must have occurred or begun during the person's limited portability period or, in the case of recipients entitled to indefinite portability, during the initial 26-week period.

Note: A discretionary extension cannot be applied until the person's limited portability period has expired or, in the case of recipients entitled to indefinite portability, at the end of the 26-week period.

Note: SSAct 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 may also be entitled to a discretionary extension under SSAct section 1218D.

SSAct 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.

Rate during discretionary extension period

A person with a payment with limited portability 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.

A person with a payment with indefinite portability is generally paid the same rate as during the allowable 26-week period. During the extended period, their rate will not be proportionalised based on their AWLR and certain supplements (RA and IA) will continue to be paid, provided the person otherwise remains eligible.

The maximum rate of pension supplement cannot be paid outside Australia for more than 6 weeks (4 weeks in a 12-month period for most DSP recipients). However, pension supplement (basic amount) can be paid outside Australia for the length of the allowable portability period for the substantive payment, including during a discretionary extension period, or indefinitely for people with indefinite portability.

Departure - notification obligation

From 20 September 2000 recipients do not have to obtain a departure certificate before leaving Australia. They must nonetheless notify Services Australia about their departure and their arrival back into Australia if there may be an impact on their rate of payment.

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 about cancellation or rate reduction 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)).

A favourable decision made as a result of a decision to grant a portability extension to an age pensioner or other recipients of pensions with indefinite portability can take effect on a day earlier than would otherwise be permitted under normal date-of-effect rules.

Act reference: SS(Admin)Act section 109(1) 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 …, section 114A Date of effect of favourable determinations - portability extensions

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.

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 of a payment with limited portability who has been cancelled on account of their having reached the end of their limited portability period, had their circumstances been known, would have been granted a discretionary extension. This may also be the case for an age pensioner or other pension recipient who has had their rate reduced to nil as a result of the AWLR. In such cases, the original cancellation can be overturned and the new decision (that portability be extended) applied.