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

[2008] AATA 15

Administrative

Appeals

Tribunal

 

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2008] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL      Nº 2007/3522

GENERAL ADMINISTRATIVE DIVISION

Re:        KARL ALBERT BETTELHEIM

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             8 January 2008

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY – age pension – qualification – whether resident of Australia

Social Security Act 1991 s 7(2) and s 7(3)

Social Security (Administration) Act 1999 s 29(1)

REASONS FOR DECISION

8 January 2008  G.D. Friedman, Senior Member

1.      Dr Karl Bettelheim was born in Austria in 1936 and lived in the United Kingdom from 1950 to 1976, in New Zealand from 1976 to 1987 and moved to Australia in 1987.  On 9 December 2005 he departed Australia for the UK.  On 8 December 2006 he applied to Centrelink for age pension.  Centrelink refused his application because he was not considered to be an Australian resident at the time of his application.  On 3 July 2007 the Social Security Appeals Tribunal (SSAT) affirmed the decision and on 31 July 2007 Dr Bettelheim sought review of the decision by this Tribunal.

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

ISSUE

3.      The issue before the Tribunal is whether Dr Bettelheim was an Australian resident at the time of his application for age pension.

WHAT IS THE MEANING OF AUSTRALIAN RESIDENT?

4. Section 29(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a claim for a pension or benefit may only be made by a person who is in Australia and is an Australian resident.

5.        The term Australian resident is defined in s 7(2) of the Social Security Act 1991 (the Act):

An Australian resident is a person who:

(a)resides in Australia; and

(b)is one of the following:

(i)an Australian citizen;

(ii)the holder of a permanent visa;

(iii)a special category visa holder who is a protected SCV holder.

Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether a person is residing in Australia:

(a)the nature of the accommodation used by the person in Australia; and

(b)the nature and extent of the family relationships the person has in Australia; and

(c)the nature and extent of the person’s employment, business or financial ties with Australia; and

(d)the nature and extent of the person’s assets located in Australia; and

(e)the frequency and duration of the person’s travel outside Australia; and

(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.

WAS DR BETTELHEIM AN AUSTRALIAN RESIDENT AT THE DATE OF APPLICATION?

6.        Dr Bettelheim is an Australian citizen.  He resides in London with his wife in a flat they purchased in early 2005 after selling their home in Australia in 2004.  Two of his adult children also live in the UK.  In evidence to the SSAT Dr Bettelheim stated that he retired from paid employment on 9 December 2005 but continues to hold honorary positions with La Trobe University and the University of Melbourne and is involved in ongoing research projects with colleagues in Australia.  He has lived in London since 2005, returning to Australia for one month in early 2006 and for four and a half months from October 2006 to March 2007.  He said he returns to Australia to see his daughter and his grandchildren and stays with his daughter on these occasions.  He retains some personal possessions at his daughter’s house and owns a motor vehicle that his daughter now uses.  Dr Bettelheim told the SSAT that he has a superannuation pension of around $400 per fortnight which is paid into his Australian bank account.  He said that he uses this money when he is in Australia.

7.        Dr Bettelheim said that he and his wife were planning to move to the UK on a permanent basis following their retirement.  However, Dr Bettelheim still considers himself a permanent resident of Australia as he spends a considerable amount of time in this country when visiting his daughter.  In a letter to Centrelink dated 19 March 2007 Dr Bettelheim stated that he has future plans to return to Australia regularly to visit family and friends.  He said that he may also have to return to participate in his ongoing Australian research projects.  Dr Bettelheim stated that since arriving in Australia in 1987 he and his wife have worked for the Australian public good and feels that the Australian Government has been unfair by depriving him of age pension on the basis of his living arrangements at the time of his application.  Dr Bettelheim told the SSAT that if he had known about the residence requirements of the age pension he would have arranged his affairs differently.

8.        In a written submission to the Tribunal dated 18 July 2007 Dr Bettelheim said that he and his wife had received conflicting advice from Centrelink in 2005 and had been led to believe that both would be eligible for age pension.  He reiterated that the decision to refuse his application based on his place of residence or the date of the application was discriminatory.

9. The Tribunal has considered each of the factors listed in s 7(3) of the Act:

(a)       the nature of the accommodation used by the person in Australia;

Dr Bettelheim departed Australia on 9 December 2005 and has no permanent accommodation in Australia.  He stays with his daughter when he visits Australia.

(b)the nature and extent of the family relationships the person has in Australia;

Dr Bettelheim has a daughter and two grandchildren in Australia.  His daughter is considering moving to the UK.  He has two sons in the UK and a grandchild for whom his wife provides care.  His wife has been back to Australia only briefly since July 2005.

(c)the nature and extent of the person's employment, business or financial ties within Australia;

Dr Bettelheim retired from paid employment in December 2005.  He has continuing ties with Australian universities in an honorary capacity.

(d)       the nature and extent of the person's assets located in Australia;

Dr Bettelheim owns a car and has other minor personal possessions at his daughter’s house in Australia.  His superannuation payments are paid into his Australian bank account.

(e)       the frequency and duration of the person's travel outside Australia;

Dr Bettelheim and his wife migrated to Australia in 1987.  After leaving permanently in December 2005 he has lived in the UK and has visited Australia twice for periods of one month and four and a half months respectively.

(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.

Dr Bettelheim has stated that he and his wife have regarded themselves as having moved to the UK permanently after his retirement.

10. The Tribunal acknowledges that since 2005 Dr Bettelheim has returned to Australia for a total of five and a half months, and that he has ties with Australian universities. However, his two sons and his wife reside in the UK and he and his wife purchased a flat in the UK in 2005 with the intention of relocating there when they retired. In assessing his circumstances against the criteria in s 7(3) of the Act, the Tribunal concludes that Dr Bettelheim has been residing permanently in the UK since his departure from Australia in 2005 and, on balance, his connection with the UK is stronger than his connection with Australia, and he has no intention to reside permanently in Australia.

11. For these reasons the Tribunal finds that, at the time of his application for age pension, Dr Bettelheim was not a person residing in Australia for the purposes of s 7(2)(a) of the Act, and he was not an Australian resident for the purposes of s 7(2) of the Act. Consequently, under s 29(1) of the Administration Act, he was not able to make a claim for age pension.

DECISION

12.      The Tribunal affirms the decision under review.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of

G.D. Friedman, Senior Member:

(sgd) Mara Putnis

Associate

Date of hearing:  Not applicable: decision on the papers

Date of decision:  8 January 2008