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

[2009] AATA 450

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6187

GENERAL ADMINISTRATIVE DIVISION		)
Re		DARREN BURGESS

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date22 June 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

....................[Sgd]...........................

Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension advance payment – Amount of advance payment payable – Respondent has no authority to make advance payment greater than amount authorised by legislation – Decision affirmed.

Social Security Act 1991 (Cth), ss 1061A(1), 1061ED, 1061EH

Burgess v Centrelink & Ors [2006] FMCA 1952

REASONS FOR DECISION

22 June 2009   Dr M Denovan, Member      

1.      Darren Burgess, the applicant, was in receipt of disability support pension when, on 12 September 2008, he applied for an advance payment of $1029.30.

2.      The respondent refused his claim, and subsequently paid the applicant an advance of $500.

3. The respondent accepts that the applicant qualifies for an advance payment of disability support pension pursuant to s 1061A(1) of the Social Security Act 1991 (“the Act”).

4.      In order to resolve the dispute in this case, I must decide whether the applicant can be paid an advance of an amount greater than $500.

5.      I have decided to affirm the decision under review.  I explain my reasons below.

THE FACTUAL BACKGROUND

6.      In a decision dated 7 October 2008, Centrelink rejected Mr Burgess’ application for an advance of disability support pension of $1029.30.

7.      On 7 November 2008, an authorised review officer affirmed that decision.

8.      On 25 November 2008, the applicant was granted an advance payment of $500.

9.      On 17 December 2008, the Social Security Appeals Tribunal affirmed the original decision.

10.     The applicant applied to this Tribunal for review on 24 December 2008.

11.     This matter was heard on the papers.

LEGISLATION

12. Section 1061ED of the Act at subsections (2) and (3) provides as follows:

“Amount of advance

(2)Subject to section 1061EH, the amount of the advance payment is the smallest of the following amounts:

(a)       the amount of advance payment sought;

(b)the maximum amount of advance payment payable to the person as worked out under subsection (3);

(c)       $500.

Formula for maximum amount of advance under paragraph (2)(b)

(3)For the purposes of paragraph (2)(b), the maximum amount of advance payment payable to the person is the amount worked out using the following formula:

6% x annual payment rate

…”.

13. Section 1061EH of the Act sets out the minimum amount of advance payment payable by providing that:

“(1)     An advance payment is not payable if it would be less than $250.

(2)Subsection (1) does not prevent payment of an advance payment in instalments of less than $250.

…”.

APPLICANT’S POSITION

14.     Mr Burgess contends that the $500 limit to an advance payment applies only to persons who were granted a pension before 1 July 1996.  It does not apply to him, he claims, as he was granted a pension from 16 April 2002.  Mr Burgess relies on the Guide to Social Security Law (“the Guide”), which at paragraph 5.4.1.30 states:

“Applicants who are receiving a pension, pension PPS, or MAA granted before 1 July 1996, would receive the smallest of the following amounts:

·     The amount requested, OR

·     6%of the person’s annual payment rate, OR

·     $500.00.”

CONSIDERATION

15. The applicant has applied the formula provided in s 1061ED(3) of the Act to his annual disability support pension, and concluded that he is entitled to an advance payment of $1029.30 (in his application to this Tribunal, the applicant claimed the amount was $1057.85).

16. Reading the Act, it is clear that s 1061ED(3) is subject to s 1061ED(2), which limits advance payments to a maximum of $500.

17.     The Federal Magistrates Court dismissed the applicant’s previous claim to seek an advance payment of an amount greater than $500, on the basis that he had no reasonable prospects of success.  In that decision[1], Federal Magistrate Wilson concluded:

“… the effect of the legislation is beyond doubt. The Secretary is not authorised to accumulate advances into a lump sum greater than $500”.

[1] Burgess v Centrelink & Ors [2006] FMCA 1952 at [14].

18. I do not accept the applicant’s contention that the Guide is authority for the position that pensions granted subsequent to 1 July 1996 are not subject to the provisions of s 1061ED(2) of the Act. To interpret the words of the Guide in such a way would be inconsistent with the legislation, which makes no such distinction. Further, a contextual reading of the Guide tends against this interpretation. Paragraph 5.4.1.10 of the Guide, for example, states that to qualify for an advance, an applicant must, amongst other things:

“… request, and be entitled to, between $250.00 and $500.00 in advance ...”

19.     The respondent submits that the qualification date in paragraph 5.4.1.30 of the Guide relates only to Mature Age Allowance (“MAA”) granted before 1 July 1996.  MAA was treated as a pension if granted prior to that date and as an allowance afterwards, hence the distinction.  I agree with that interpretation.

20. Even if the applicant were correct in his interpretation of paragraph 5.4.1.30 of the Guide, it would make no difference. The Department of Families, Housing, Community Services and Indigenous Affairs writes the Guide to assist in the understanding and application of social security legislation. The terms of the Act make it very clear that the maximum advance payment is $500. The respondent has no authority to make advance payments not authorised under the Act.

CONCLUSION

21.     The maximum advance payment that the applicant is entitled to is $500.

22.     The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

Signed: .....................[Sgd]........................................................
  Mátyás Kochárdy, Research Associate

Hearing on the Papers
Date of Decision  22 June 2009
Applicant was self represented
Solicitor for the Respondent          Michelle Brazier, Departmental Advocate