The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

7.1.4 Portability extensions

Introduction

In certain circumstances, a recipient of a payment which has limited portability may be granted a discretionary extension if they are unable to return to Australia before the end of their portability period. The extension allows their payment to continue beyond the end of the normal portability period.

In similar circumstances, recipients of age pension and DSP with unlimited portability may also be granted a discretionary extension. The extension ensures their payment is not affected if their absence exceeds 26 weeks.

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Discretionary portability extensions for payments with limited portability

Recipients of CP, PP, JSP, YA, Austudy, SpB or DSP who are eligible for limited portability (7.1.3) can apply for a discretionary portability extension if they 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 (see below).

If granted a discretionary portability extension, their payment can continue to be paid for the duration of the extension, provided they otherwise remain qualified and the payment remains payable.

A discretionary portability extension can only be granted if the payment was portable when the person departed Australia. If a person’s payment was not portable, a discretionary portability extension cannot be granted, even if the person experiences an extreme event or emergency situation.

Example: Damian is receiving JSP. He decides to travel to New Zealand for a holiday. As his travel is for a non-approved reason, he is not eligible for limited portability and his JSP is suspended on departure. While in New Zealand, he has an accident and is hospitalised and is unable to return home to Australia for 6 weeks. He is not eligible for a discretionary portability extension because his JSP was not portable when he left Australia.

Note: Recipients with limited portability may be eligible for an extended portability period if they are studying overseas as part of an approved Australian course, are undertaking eligible overseas Reserve service, are receiving financial assistance for the absence under the Medical Treatment Overseas Program (MTOP) or are dependent on and living with a family member that has been posted overseas for work (see 7.1.3 for further information). An extended portability period in these circumstances is separate to a discretionary portability extension under section 1218C. Recipients granted an extended portability period may also be eligible for a discretionary portability extension if they are unable to return home at the end of their extended portability period because an extreme event or emergency situation as specified in SSAct section 1218C.

Act reference: SSAct section 1218C Extension of person's portability period—general

Discretionary portability extensions for payments with unlimited portability

Recipients of age pension and DSP who are eligible for unlimited portability (7.1.2) can also apply for a discretionary portability extension if they are temporarily overseas and unable to return to Australia within 26 weeks because an extreme event or emergency situation as specified in SSAct section 1218C (see below).

Normally after a temporary absence of 26 weeks overseas, a person’s payment rate may be proportionalised based on their AWLR and certain supplements (RA and IA) will cease. If granted a discretionary portability extension of the 26-week period, the person's payment rate will not be proportionalised and supplements can continue to be paid for the duration of the extension, provided the person otherwise remains eligible.

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 discretionary 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, provided they leave Australia before the extension expires.

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.

Recipients 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 (for example, if they have decided to reside long term overseas or in Australia as the case may be) – see 'temporary versus permanent absence' in 7.1.8.

Discretionary portability extensions for recipients with unlimited portability are available to people whose temporary absence from Australia (or their usual country of residence):

Act reference: SSAct section 1216(2) If the Secretary is satisfied …, 1220A(1A) If the Secretary is satisfied …, 1220B(1A) If the Secretary is satisfied …, Schedule 1A clause 128(1A) If the Secretary is satisfied …

Social Services and Other Legislation Amendment Act 2014 Schedule 4 item 6(6) Portability extension, Schedule 4 item 14(8) Portability extension

Reasons for allowing a discretionary portability extension

A discretionary portability extension for a payment with limited portability may be allowed where the decision-maker 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 portability extension for payments with unlimited portability may be allowed where the decision-maker 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 unlimited 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.

Example: A person on JSP has been granted a portability period of 2 weeks to attend the funeral of a parent and while overseas is required to extend their stay for a further 2 weeks to attend legal proceedings associated with the parent's will. This is an approved reason for JSP portability and a decision can be made to extend the original portability period to 4 weeks in total. There is no need to consider a discretionary portability extension as the total overseas absence will not exceed the maximum portability period allowed for JSP (6 weeks).

Duration of a discretionary portability extension

A discretionary portability 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 usual country of residence) on expiry of the discretionary portability extension, 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 usual country of residence 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 usual country of residence) at the first available opportunity. For example, where an extension is allowed due to illness, the recipient is required to return immediately when their health allows, extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.

Rate during discretionary extension period

A recipient 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 recipient with unlimited 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.

Note: ES and the maximum rate of pension supplement cannot be paid outside Australia for more than 6 weeks (or 28 days in a 12-month period for DSP recipients whose DSP is only portable for 28 days in a 12-month period). 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 portability extension period, or indefinitely for people with unlimited portability. Concession cards are cancelled at the end of the non-cancellation period, even if the substantive payment remains payable due to a discretionary extension.

Policy reference: SS Guide 7.1.1 Portability table (summary of payment rules), 3.9.4.20 Non-cancellation of Concession Cards for Temporary Overseas Absences

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