Carter and Secretary, Department of Families Community Services and Indigenous Affairs
[2007] AATA 1101
•20 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1101
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/329
GENERAL ADMINISTRATIVE DIVISION ) Re ANNELLE CARTER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date20 February 2007
PlaceBrisbane
Decision The decision under review is affirmed. This means Mrs Carter’s application for review is unsuccessful
..........[Sgd]..........
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – widow B pension - eligibility – Tribunal observations: therapeutic jurisprudence – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 362A, 362Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
WRITTEN REASONS FOR ORAL DECISION
6 March 2007 Dr EK Christie, Member 1. This is an application for review of the following decision (of the Social Security Appeals Tribunal (the “SSAT”) made on 4 April 2006. In reaching its decision, the SSAT concluded:
“It is plain that Mrs Carter did not satisfy the qualifications for widows pension at the time of her claim on 21 July 1995. Qualification is limited to claimants who were age 45 as at 1 July 1987 and were receiving certain payments or who had turned 50 as at 1 July 1987. Mrs Carter was 42 years old on 1 July 1987. There is no discretion in the law which allows Centrelink or the Tribunal to depart from the law and deal with Mrs Carter’s case as an exception or on the basis of what she puts forward as humanitarian grounds.” (T2 folio 6)
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented herself at the hearing. The respondent was represented by Mr M Amundsen, a Departmental Advocate.
Issues Before The Tribunal
4. The only issue for the Tribunal to decide was whether Mrs Carter was entitled to receive widow’s pension (class B).
Facts
5. Mrs Carter was born in South Africa in 1944. She came to Australia in 1969 and married an Australian citizen in 1970. She became an Australian citizen that year. She returned to South Africa in 1973, following a breakdown in their marriage, when she became separated from her husband and their two children.
6. She returned to live in Australia in 1995. One of her two daughters from her first marriage lives in Australia (Melbourne), the other in South Africa. She has a step daughter from her second marriage.
7. In 1992, her second husband died in South Africa from a cardiac arrest. This experience was enormously traumatic for her as his death occurred in her presence and has triggered off an ongoing major depressive disorder.
Facts
8. On the basis of the evidence before it the SSAT made the following Findings of Fact [T2, Folio 5]:
“(i) Mrs Carter was born on 1 August 1944.
(ii) Mrs Carter’s husband died in 1995.
(iii) Mrs Carter applied for income support on 21 July 1995.
(iv) Mrs Carter has poor health and wishes to return to South Africa to escape her present difficult circumstances and to carry out voluntary work.”
9. At the commencement of the hearing, Mrs Carter said that she agreed with findings (i), (iii) and (iv). However, finding (ii) was wrong as her husband had died in South Africa on 12 August 1992.
Statutory Requirements And Case Law
10. The Tribunal has applied the following legal requirements and principles in its interpretation of the law in its consideration of the outcome for Mrs Carter’s factual situation.
§The Tribunal’s Decision Making Powers
11. There is only one decision possible in this application for review: whether Mrs Carter was entitled to widow B pension. Accordingly, the question for the Tribunal to decide is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
12. In this application for review, the Tribunal considers all the evidence and information before it as at the date of the hearing, and supplementary submissions following the hearing – “to the extent those facts are relevant to the decision….by reference to the subject matter, scope and purpose of the legislation, pursuant to which the discretion is conferred.”
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367].
Eligibility for Widow B Pension
13. Sections 362A and 362 of the Social Security Act 1991 is the relevant provision for determining whether Mrs Carter was entitled to widow’s pension at the time that she made her claim in 1995.
14. Section 362(A)(1) states that widow B pension is not to be granted in the following case:
“In spite of anything else in this Part, a widow B pension must not be granted to a woman unless:
(a) the woman's claim for the pension is lodged before 20 March 1997; and
(b) the woman is qualified for the pension before that day.”
15. Section 362(1) sets out the criteria that must be satisfied to qualify for widow B pension:
“A woman is qualified for a widow B pension if:
(a) the woman:
(i) was, immediately before 1 July 1987, receiving a widow's pension as a class B widow under the 1947 Act; or
(ii) on 1 July 1987 had turned 45 years old and:
(A)was receiving a supporting parent's benefit or a widow's pension as a class A widow on or after that day; or
(B) was receiving a sole parent's pension after 1 March 1989; or
(iii) on 1 July 1987 had turned 50 years old; and
(b) the woman is not qualified for parenting payment; and
(c) the woman:
(i) was legally married and her husband has died;…”
ANNELLE CARTER’S CASE
16. Mrs Carter said that when she applied for widow B pension, following her return to Australia, she was informed by Centrelink that she was not eligible. However, she had not been told at this interview she could appeal this decision. Nor had she been provided with any assistance or information on Centrelink procedures at that time.
17. She said that she was now receiving widow’s allowance.
18. Her long standing major depressive disorder, after her second husband’s death, had been treated by psychiatrists and general practitioners in both South Africa and in Australia. Her Australian psychiatrist (Dr Mishra) has attributed the cause of this condition to her husband’s death and the consequences that followed. By 1996, the depressive disorder had reached the state that she did not want to get out of bed and had created enormous difficulty for her working life. She will probably be on medication to treat her depressive disorder for the rest of her life.
19. Her treating doctors believe that she is only capable of undertaking voluntary work and that the charitable work she has done in South Africa for a great many years, raising money for abandoned AIDS babies, is therapeutic for her and an appropriate activity to undertake with her depressive disorder.
20. She said that the basic issue for her is to do something about her depressive disorder. The voluntary charitable work in South Africa is the ideal activity for her to undertake in this regard, because of its therapeutic value. However, she cannot undertake this for longer than a 13 week period in South Africa because of the portability requirements of the widow allowance. The costs of air travel to South Africa are prohibitive and so her charitable work is limited. She simply cannot afford to do voluntary work in South Africa constrained by forced travel costs imposed by the 13 week portability period and has to return to Australia so frequently.
21. Mrs Carter acknowledged that she was aware of how the legislative requirements for eligibility for widow B pension applied. However, she believed that there were circumstances in her case which justified discretion being applied and so granting her the widow B pension.
Findings of Fact and Consideration of the Issues
22. Section 362A(1) requires a widow B pension to be lodged before 20 March 1997. Mrs Carter’s claim was lodged in 1995. The next step for Mrs Carter to qualify is to satisfy the requirements under s 362(1) of the Act.
23. At the time Mrs Carter claimed widow’s pension on 21 July 1995, she did not satisfy any of the criteria under s 362(1) of the Social Security Act 1991. Paragraph (a) (iii) requires the person claiming this pension to be aged at least 50, as at 1 July 1987, to be eligible. At 1 July 1987, Mrs Carter would have been 42 years old. Consequently, Mrs Carter would not have qualified for widow B pension at the time she applied in 1995. The other alternative is also not satisfied: she had not turned 45 by 1 July 1987 and she was not in receipt of a pension type prescribed in paragraph (a)(ii) A, B.
24. Whilst this decision may seem harsh, it would be more appropriate to describe it as unfortunate. I have no power under the Social Security Act 1991, which provides the administrative decision-maker with any discretion to deal with Mrs Carter’s case as an exception, on the basis of the humanitarian grounds – noble and worthwhile as they are. I understand Mrs Carter’s grounds for appealing but, unfortunately, I can only consider those facts that are relevant for deciding her eligibility for widow B pension. The boundaries for those facts are set by the criteria in s 362(1) of the Social Security Act 1991. Unfortunately there is no provision for exemption or for the exercise of discretion.
TRIBUNAL OBSERVATIONS
25. Therapeutic jurisprudence is a term first used by two United States Professors David Wexler and Professor Bruce Winick in 1987 (Therapeutic Jurisprudence < (February 2007)). It represents a new perspective, for studying the role of lawyers and judges and how the legal process may, or may not, produce beneficial consequences for individuals involved in the legal process. Therapeutic jurisprudence has been applied in an effort to reframe the role of the lawyer. It conceives lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of the parties as well as their legal rights and interests, and to actively seek to prevent legal problems through creative problem-solving approaches (Therapeutic Jurisprudence < (February 2007)).
26. The following observations are made in the context of the meaning of therapeutic jurisprudence.
27. Mrs Carter may now wish to seek advice from Centrelink on her possibly being entitled to either disability support pension (“DSP”) or age pension.
28. In summary, DSP requires Mrs Carter’s major depressive disorder to be “fully diagnosed, treated and stabilised”. If this is the case then it would then need to be assessed for an impairment rating under Table 6 of the Impairment Tables – Psychiatric Impairment (Schedule 1B of the Social Security Act 1991). The final requirement would be an assessment whether Mrs Carter would be capable of working at least 30 hours per week in paid employment. It is noted, that her psychiatrist Dr Mishra, has advised her that her voluntary work is the appropriate work for her to undertake.
29. However, section 1218AA of the Social Security Act 1991 deals with portability of DSP. A review of this section, in Mrs Carter’s case, indicates that the portability of DSP is similar to widow’s allowance (13 weeks).
30. Extended portability period for disability support pension is provided for under section 1218AA of the Social Security Act 1991.
“1218AA(1) The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances ) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person's absence from Australia is or will be permanent; and
(e) the purpose of the person's absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person's country of origin.”
31. Finally, Mrs Carter needs to also consider her possible eligibility for age pension. The starting point for her would be to consider the statutory criteria set out in the following paragraph, and to then seek further advice from Centrelink. The advantage of age pension for Mrs Carter is that it allows any absence from Australia for an unlimited period.
32. The requirements to qualify for age pension under section 43(1) are as follows:
“A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c) the person was receiving a widow B pension, a widow allowance, a or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997--the person was receiving a B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
Note 2: For pension age see subsections 23 (5A), (5B) (5C) and (5D).
Under section 7(2) 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”
33. The final observation I make is that it may have been worthwhile for both parties to have considered the Alternative Dispute Resolution process of neutral evaluation to resolve this application for review. Such a process is now available in the AAT and it has many advantages for bringing a problem-solving approach to decision-making – notwithstanding that the decision under review would have still been affirmed as a matter of law.
DECISION
34. For all of the above reasons, Mrs Carter is not entitled to widow B pension.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Fiona Kamst
Legal Research OfficerDate of Hearing 20 February 2007
Date of Decision 20 February 2007
Date of Written Reasons 6 March 2007
The Applicant was self represented
For the Respondent Mr M Amundsen, Departmental Advocate
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