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.

7.1.8 Portability definitions

Introduction

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Maximum portability period

The maximum portability period for each payment is defined in the portability table in SSAct section 1217. It may be unlimited or limited, depending on the payment and the class of persons.

The provisions are summarised in the table at 7.1.1.

Temporary versus permanent absence

A recipient with unlimited portability (7.1.2) may go overseas temporarily or to live long-term in another country. The nature and duration of the absence may affect the person’s payment rate, ancillary payments or concession cards.

A recipient is considered to be going temporarily overseas if the recipient still resides in Australia. In deciding whether or not a recipient is residing in Australia, consideration must be given to their circumstances and the evidence available against the factors listed in SSAct subsection 7(3), including the nature of their accommodation, family relationships, employment, business or financial ties in Australia or overseas, as well as the frequency and duration of the recipient's travel outside Australia and any other factor relevant to determining whether they intend to remain permanently in Australia.

Recipients of payments that have a limited portability period (such as CP or PP) who frequently travel overseas and return to Australia only to renew their portability period may cease to be considered to be residing in Australia, in which case they will cease to satisfy the qualifying residence criteria for the payment.

Recipients of payments that have unlimited portability (such as age pension and, in some circumstances, DSP) who return to Australia for a short period every 26 weeks to retain their ancillary payments and full pension may cease to be considered to be residing in Australia, in which case their entitlement to ancillary payments may be affected.

Act reference: SSAct section 7(2)-'Australian resident', section 7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia …, section 1212C Meaning of temporary absence

Policy reference: SS Guide 3.1.1 Residence requirements

Specific reasons for allowable absences

Payments with limited portability may have specific reasons that need to apply for the payment to be portable. These reasons are:

  • to attend to an acute family crisis
  • to seek eligible medical treatment
  • for a humanitarian purpose.

These reasons are defined in the SSAct and are spelled out below.

Policy reference: SS Guide 7.1.3 Payments & concession cards with limited portability

Acute family crisis

A recipient's overseas absence for the purpose of attending to an acute family crisis must be for a limited and specified period of time. The decision-maker must be satisfied that the absence is:

  • for the purpose of visiting a family member who is critically ill
  • for the purpose of visiting a family member who is hospitalised with a serious illness
  • for a purpose relating to the death of a family member, or
  • for a purpose relating to a life-threatening situation (other than an illness referred to in the first 2 dot points) that is facing a family member and is beyond the control of the family member.

The criteria for an acute family crisis (as provided by the legislation) indicates that, in most cases, the circumstances under which payment can be made while a recipient is overseas will be due to an immediate or emergency family situation. Consideration must be given to the meaning of the term 'acute' when assessing a critical or serious illness. An illness that quickly becomes very severe should be contrasted with a chronic condition. In the normal course of events a recipient wishing to visit a family member suffering from an ongoing medical condition is not covered by this provision.

Where the circumstances relate to the death of a family member, subject to decision-maker's satisfaction that the main reason for the travel relates to the death of a family member, consideration can be given to granting portability at any time after the family member's death, even when the travel is not in the period immediately following the death of the family member. Applicable situations where overseas travel might relate to the death of a family member and where the circumstances are not immediate or an emergency, could include the following scenarios:

  • where a funeral or memorial service for the recipient's deceased family member is delayed due to factors outside the recipient's control
  • where the body of the recipient's deceased family member is found after being missing or is released after being held for purposes relating to a legal investigation, or
  • where the recipient was unfit for travel immediately after the family member's death (the recipient must have sufficient medical evidence to demonstrate that they were unfit for travel at the earlier time).

The decision-maker may also give consideration to granting portability if the recipient's family member is facing a life threatening situation which is beyond the family member's control.

Example: A family member is taken hostage.

Example: A family member has been subjected to a creditable threat upon their life.

If a recipient's circumstances satisfy the criteria for an acute family crisis, then they may be granted portability for a specific period of no longer than the maximum allowed portability period for the qualifying payment. The length of the specific period should be restricted to the period of time required for the recipient to deal with the particular acute family crisis.

Two weeks will normally be sufficient for a recipient to visit a family member who is critically ill or who has been hospitalised with a serious illness.

Recipients who wish to remain overseas following an approved visit to provide ongoing care to a family member are no longer considered to be 'visiting' and cease to be payable under this provision.

Act reference: SSAct section 1212A Meaning of acute family crisis

Policy reference: SS Guide 1.1.F.60 Family member

Eligible medical treatment

Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of registered Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.

If the recipient's circumstances satisfy the eligible medical treatment criteria, then portability may be granted for a specific period of no longer than the maximum allowed portability period for the qualifying payment. The length of the specific period should be restricted to the period of time required to complete the treatment, including recuperation and any allowances that must be made for return travel.

Act reference: SSAct section 1212-'eligible medical treatment'

Humanitarian purpose

A recipient's overseas absence is for a humanitarian purpose if the reason for the absence is because the recipient is:

  • involved in custody proceedings
  • adopting a child
  • involved in legal proceedings other than those in respect of a crime allegedly committed by the recipient (this may include, where a recipient is required to appear as a witness)
  • a formally selected member of the Australian Paralympic Team, for participation as a competitor, at the international athletic competition known as the Paralympic Games
  • in receipt of DSP and is attending a lead-up event to prepare or qualify as a competitor at the international athletic competition known as the Paralympic Games, within 12 months prior to a Paralympic Games, or
  • attending a memorial service that has been approved by the Australian Government to commemorate an event for example, war, terrorist attack or natural disaster) involving the death or serious injury of an Australian resident, if the recipient:
    • is the person who was seriously injured at that event, or
    • is a family member of a person who died or was seriously injured at that event.

For DSP recipients attending a lead-up event to prepare or qualify for the Paralympic Games, verification of the event details and attendance requirements is required by an appropriate body approved by the Department responsible for sport (for example, Australian Sports Commission).

If the recipient's circumstances satisfy the humanitarian purpose criteria, then portability may be granted for a specific period of no longer than the maximum allowed portability period for the qualifying payment. The length of the specific period will be restricted to the period of time required for the recipient to deal with the particular humanitarian purpose.

Act reference: SSAct section 1212B Meaning of humanitarian purpose

Social Security Regulations 2022 section 6 Meaning of humanitarian purpose

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