Adler and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 794

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 794

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2011/2270

GENERAL ADMINISTRAIVE DIVISION		)
Re		MICHAEL ADLER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom AO (Deputy President)

Date10 November 2011

PlaceHobart

Decision The decision under review is affirmed.

..............................................

The Hon R J Groom AO

(Deputy President)

CATCHWORDS

AGE PENSION – Australian citizen now residing in Spain – prior UK pension – UK pension included a small entitlement under now defunct Australia/UK agreement – lodged claim for Australian age pension whilst in Spain – pension granted – backdated start day – start day disputed by applicant – decision under view affirmed.

Social Security (Administration) Act 1999 sections 13, 42 clause 3 and Part 3 of Schedule 2

REASONS FOR DECISION

The Hon R J Groom AO (Deputy President)

INTRODUCTION

1.      Mr Adler is an Australian citizen now living in Spain.  He turned age pension age on 20 September 1999.  Mr Adler had previously resided in the United Kingdom (“UK”) and was receiving a UK pension.  His pension included a small entitlement under the now defunct Australia/UK Social Security Agreement.

2.      That entitlement ceased to be paid on 24 May 2009.  Because his pension income had been reduced he made enquiries of Centrelink in Australia, commencing with an email of 21 January 2010 stating that:

… I will now need to take whatever steps are necessary to have my small Australian entitlement paid directly to me here in Spain.”  (T3 pg 9)

3.      The small entitlement under the abovementioned agreement was not an Australian age pension entitlement.  It was an adjustment to the rate of Mr Adler’s UK pension paid by the UK authorities.  (See the explanation at T33 pg 80).  Under the agreement, periods of Australian residence qualified a pension recipient to a higher rate of pension. 

4.      After several telephone calls and emails to Centrelink, Mr Adler completed a claim form for an age pension which was received by Centrelink on 4 August 2010.  To claim a pension a person is normally required to be then resident in Australia, however, under the International Social Security Agreement between Australia and Spain Mr Adler was allowed to lodge his claim whilst residing in Spain.

5.      On 8 November 2010 Mr Adler was granted an Australian age pension effective from 3 June 2010 with arrears paid from that date.

6.      Mr Adler contends that his Australian pension should be paid from 24 May 2009, when the adjustment to his UK pension based on his prior Australian residence was removed. 

The respondent submits that there is no provision under Australian social security law that would allow Mr Adler’s pension to be backdated beyond 3 June 2010.

THE ISSUE

7.      The issue to be determined by the Tribunal is whether Mr Adler was entitled to an Australian pension before 3 June 2010. 

THE LEGISLATION

8. Section 42 of the Social Security (Administration) Act 1999 (“the Act”) states when a pension commences:

Start day

“For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”

9. Clause 3 of Schedule 2 of the Act provides that the start day is the day the claim is made:

3       “Start day—general rule

3(1)   If:

(a)a person makes a claim for a social security payment; and

(b)the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.”

10. Section 13 of the Act provides that a claim is deemed to have been made where a person makes contact with Centrelink to register an intent to claim, and subsequently lodges a claim within a certain period. The section allows for a maximum period of 13 weeks between contacting and actually lodging the pension claim.

11. Section 13(3A) provides as follows:

“For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(4)A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.”

WHEN DID MR ADLER BECOME ENTITLED TO AN AUSTRALIAN AGE PENSION?

12.     Mr Adler has expressed his concerns in correspondence and in a number of submissions including those of the 28 July 2011 and 6 October 2011.  A point he has made on a number of occasions is that, in his view, he had a pre-existing Australian age pension entitlement for a period of some 10 years prior to May 2009.

In his submission of 6 October 2011 Mr Adler says as follows:

“… Centrelink has recently incorrectly docked me this pre-existing pension entitlement for a period of 13 months from May, 2009 to June, 2010, on spurious grounds which were in any case entirely outside my control.”

And further:

“I am seventy-seven years old.  I was an Australian pensioner for 10 years before the now disputed 13 months, and for some time I have been an Australian pensioner again after the 13 months, but those 13 months are still missing.  I had been a resident in the UK, and had already been receiving this Australian entitlement from September 1999 until May 2009, and I am receiving it now once again, since June 2010.

Centrelink opted to stop the pension payments for these 13 months from May 2009 to June 2010, for reasons which I maintain are invalid and represent a miscarriage of justice and misinterpretation of the law. 

Let me put it this way, if I may:  it is my contention that if an existing pensioner goes on an extended vacation, from 10 Rearview Terrace to 20 Seaview Terrace, say, and eventually decides at some point that he wants to stay permanently at 20 Seaview Terrace, does not expect to be docked his pension during the time that it takes him to complete the formalities of the move.  He was a pensioner before he moved, he was a pensioner while he was moving, and he is the same pensioner afterwards.”

13.     The Tribunal is however satisfied on the material before it that prior to 3 June 2010 Mr Adler did not have an Australian age pension.  Prior to that date he had not made any claim for such a pension.  The true position was that he was receiving an increased UK pension as a result of his period of residence in Australia.  The resultant adjustment was a UK pension adjustment paid by the UK pension authority. 

14.     Mr Adler first contacted Centrelink about his pension on 21 January 2010 and also rang on 25 January 2010.  He did not however make a claim within 13 weeks of those dates, so the deemed claim provisions cannot apply to those particular dates.  He next contacted Centrelink on 3 June 2010 indicating an intention to make a claim for the age pension.  The completed claim form was received on 4 August 2010 which was within 13 weeks of 3 June 2010.  That date was properly deemed to be the date the claim was made. 

15. Part 3 of Schedule 2 of the Act contains several additional provisions allowing the backdating of the start day. The Tribunal is however satisfied that none of those provisions apply in Mr Adler’s case.

CONCLUSION

16.     The Tribunal concludes that Mr Adler was entitled to receive an Australian age pension from 3 June 2010.  There is no provision under the Australian social security law which would allow the payment of his age pension to be backdated beyond that date.

DECISION

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President).

Signed: .....................................................................................
             Associate

Date of Hearing  31 October 2011
Date of Decision  10 November 2011