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

[2010] AATA 1035

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1035

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3909

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTIAN ASTOURIAN

Applicant

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

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date21 December 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review. 

......................[signed]........................

Senior Member

Social Security – whether applicant entitled to pensioner concession card whilst in receipt of mobility allowance

Social Security Act 1991 ss 23, 1061ZA, 1061ZD, 1061ZK

REASONS FOR DECISION

21 December 2010 G. D. Friedman, Senior Member  

1.      Mr Astourian was in receipt of disability support pension (DSP) from 23 September 1993 to 13 October 2008, when he commenced full time employment with the Migrant Resource Centre (North West Region).  He informed Centrelink on 24 October 2008 of the change to his employment. 

2.      Mr Astourian’s DSP was cancelled, with effect from 13 October 2008, as he was no longer eligible.  He was, at that time, and continues to be, in receipt of mobility allowance.

3.      As a recipient of DSP, Mr Astourian was entitled to a pensioner concession card.  He was issued with a new pensioner concession card on 24 October 2008, which was valid until 28 October 2009.  In February 2009, he was issued another pensioner concession card, which expired on 12 October 2009.

4.      On 13 October 2009 Mr Astourian was issued with a health care card, which was valid from the date of issue to 12 April 2010.  On 29 March 2010, Mr Astourian requested Centrelink review the decision to issue him with a health care card rather than a pensioner concession card.

5.      On 14 April 2010 Mr Astourian was informed that an authorised review officer (ARO) had affirmed the original decision.  He lodged an application for review with the Social Security Appeals Tribunal (SSAT) on 21 June 2010.  The SSAT affirmed the ARO’s decision on 11 August 2010.  Mr Astourian lodged an application for review with this Tribunal on 13 September 2010.

6.      With the consent of the parties the Tribunal decided to make a decision on the review application without holding a hearing.

ISSUE

7.      The issue before the Tribunal is whether Mr Astourian was qualified to receive a pensioner concession card after 12 October 2009.

WAS MR ASTOURIAN QUALIFIED TO RECEIVE A PENSIONER CONCESSION CARD AFTER 12 OCTOBER 2009?

8.      The relevant law for qualification for a pensioner concession card is contained in the Social Security Act 1991 (the Act).  Section 1061ZA states:

1061ZAGeneral qualification rules

(1)Subject to subsection (3), a person is qualified for a pensioner concession card on a day if:

(a)a social security pension; or

(b)a mature age allowance under Part 2.12B;

is payable to the person for that day.

9.      Section 23 of the Act defines social security pension to mean:

(a)an age pension; or

(b)a disability support pension; or

(c)a wife pension; or

(d)a carer payment; or

(e)a pension PP (single); or

(ea)a sole parent pension; or

(f)a bereavement allowance; or

(g)a widow B pension; or

(i)a mature age partner allowance; or

(k)a special needs pension.

10.     Section 1061ZD extends the qualification rules:

1061ZDExtended qualification rule: former recipient of disability support pension

(1)Subject to subsections (5), (5A) and (7), a person is qualified for a pensioner concession card for the period of 52 weeks starting on the day on which this section begins to apply to the person.

(2)Subject to subsection (4), this section applies to a person if:

(a)the person has been receiving a disability support pension; and

(b)the person commences employment that requires him or her to work for at least 15 hours per week; and

(c)because of the commencement of that employment, the person ceases (having regard, where appropriate, to the operation of section 1073J) to be qualified for the disability support pension.

(3)Subject to subsection (4), this section applies to a person if:

(a)the person has been receiving a disability support pension; and

(b)because there is an increase in the person’s ordinary income from employment (and after any working credit balance of the person is reduced to nil), the disability support pension ceases to be payable to the person.

(4)Subject to subsection (6), this section only applies to a person while the person is in Australia and is an Australian resident.

Note:If the person is temporarily absent from Australia, the person continues to be qualified for a pensioner concession card for a maximum period of up to 13 weeks (see Division 4).

…

11.     Mr Astourian was qualified to receive the pensioner concession card whilst in receipt of DSP, under s 1061ZA of the Act, and then for a further period of 52 weeks, under s 1061ZD of the Act as he had commenced employment for at least 15 hours per week.  The Act provides no discretion to extend a pensioner concession card beyond 52 weeks.

12.     Division 3, Subdivision A of the Act deals with qualification for a health care card:

1061ZKQualification: general rules

(1)A person is qualified for a health care card on a day if this section applies to the person on that day.

…

(7)This section applies to a person on a day if, on that day, the person is receiving mobility allowance.

13.     On 13 October 2009 Mr Astourian was in receipt of mobility allowance but no longer receiving DSP.  Consequently, he was no longer qualified to receive a pensioner concession card but, instead, was qualified to receive a health care card under s 1061ZK of the Act. 

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Senior Member.

Signed: ……………………[signed]……………………………………

Kate Conners            Associate

Date of hearing:  Not applicable: decision on the papers

Date of decision:  21 December 2010