Cimpoesu and Secretary to the Department of Family and Community Services

[2003] AATA 566

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL        N° V2003/245

N° V2003/247

GENERAL ADMINISTRATIVE  DIVISION

Re:GHEORGE CIMPOESU

And:ANA CIMPOESU

Applicants

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             29 May 2003

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY ‑ special benefit ‑ eligibility ‑ financial support provided by family members ‑ exercise of discretion to grant benefit   

Social Security Act 1991 ss43(1)(a), 729(1), 729(2)(a), 2(b), 2(e)

Re Secretary, Department of Social Security and Moore (1990) 22 ALD 272

REASONS FOR DECISION

29 May 2003  G.D. Friedman, Member

1.      This is an application by Gheorge and Ana Cimpoesu (the applicants) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 28 January 2003.  The SSAT affirmed decisions of an authorised review officer of Centrelink dated 4 September 2002 and 26 November 2002 to refuse the applicants’ claims for special benefit.

2.      At the hearing on 29 May 2003 the applicants represented themselves, assisted by an interpreter in the Romanian language, and Ms E. King, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15) together with one exhibit (Exhibit A1) lodged by the applicants.   

BACKGROUND

4.      Mrs Cimpoesu was born in Romania on 17 May 1932 and arrived in Australia in June 1996.  Mr Cimpoesu was born in Romania on 4 March 1933 and arrived in May 1997.  On 29 June 2000 the applicants were granted permanent visas and in May 2003 they were granted Australian citizenship.  They have lived with, and been supported by, their daughter since their arrival.  On 30 July 2002 the applicants lodged a claim for special benefit.  On 31 July 2002 Centrelink decided not to grant the claim because the applicants were receiving support from their daughter and her family.  On 4 September 2002 an authorised review officer affirmed the decision in respect of Mrs Cimpoesu, and on 26 November 2002 an authorised review officer affirmed the decision in respect of Mr Cimpoesu.    

5.      On 7 October 2002 the applicants sought review by the SSAT.  Following the decision by the SSAT, the applicants each lodged an application with the Tribunal on 4 March 2003 for review of the decision.

EVIDENCE

6.      In oral evidence the applicants said that when they arrived in Australia they moved into their daughter’s home because they had no means of support other than a small Romanian pension which was irregular and insufficient for living expenses.  They told the Tribunal that the daughter has re‑married and her husband does not speak Romanian.  They speak only a little English, and tension has developed within the home because of the crowded household and cultural differences.

7.      The applicants explained that they assist with some child minding and household tasks, but are dependent on the daughter and her husband for financial support and are in poor health.  They indicated that they do not qualify for age pension until 2010, and would prefer to live in their own accommodation close to the daughter, but have no means to achieve financial independence.  The applicants told the Tribunal that their daughter and her family have done more than enough to provide for all family members, and that their daughter should not be required to support them indefinitely, particularly as this is having an adverse effect on their daughter’s health and family situation.    

8.      In a written statement dated 28 May 2003 (Exhibit A1) Dr Tatiana Cimpoesu,  the applicants' daughter, said that when the applicants arrived in Australia she had signed an Assurance of Support, in which she undertook to meet their financial needs for two years.  She said she was led to believe that they would be eligible for social security benefits at the end of that period.  She said that she is employed full‑time as a medical practitioner in a clinic in Warrnambool, although the cost of further study, insurance and the purchase of medical equipment consume a large amount of her earnings.

9.      Dr Cimpoesu said that her husband works part‑time as a farmhand, but his principal role is to care for her two children.  She confirmed that the applicants are totally dependent on her for financial support, and that she is unable to afford to provide alternative accommodation for them.  She stated that because of their age, lack of English and work skills, and health problems, the applicants are unable to obtain employment.  She stated that she finds difficulty in meeting the family’s financial commitments, including a mortgage and household expenses, and she relies on credit cards.   

CONSIDERATION OF THE ISSUES

10.     The relevant provisions of the Social Security Act 1991 (the Act) are:

729.(1)  A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

729.(2)  The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a)       no social security pension is payable to the person during the period; and

(b)       no other social security benefit is payable to the person for the period; and

…

(e)the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;

11.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

12. The Tribunal notes that the applicants have reached the age for eligibility for age pension. However, under s43(1)(a) of the Act they do not qualify for this payment because they do not have ten years’ qualifying residence. The Tribunal finds that the applicants do not qualify for any other social security pension or benefit, so they satisfy s729(2)(a) and (b) of the Act.

13.      In relation to the discretion contained in s729(2)(e) of the Act, the Tribunal notes that In Re Department of Social Security and Moore (1990) 22 ALD 272 the Tribunal (considering the Secretary's discretion under s129(1) of the Social Security Act1947, which is the equivalent of s729(2) of the Act) reviewed relevant authorities and concluded (at paragraph 18):

Hard as it is, the principle which emerges from the Tribunal's decisions, of which we have set out some examples, is that the discretion under sub-section 129(1) is not exercised where the claimant for the benefit has access to financial support from other sources, including family sources.

14.      The Tribunal accepts the evidence from the applicants and Dr Cimpoesu that the applicants would prefer to live close to, but not in the same residence as, Dr Cimpoesu and her family, and that the current arrangement causes some tension within the household.  The Tribunal also accepts that because of the applicants’ age, health problems, and lack of appropriate work and language skills, they would find difficulty in gaining employment to enable them to earn sufficient money to support themselves.  The Tribunal accepts that the applicants are unable to gain access to the small Romanian pension to which they would be entitled if they lived in Romania.

15.     However, the Tribunal notes that the applicants have received financial support from their daughter since their arrival in Australia and the Tribunal also notes that, together with her husband, Dr Cimpoesu has the means and the willingness to continue that support for the foreseeable future, even though the family lives a modest lifestyle and has considerable commitments from the income earned by Dr Cimpoesu and her husband.  This means that the applicants have access to financial support from other sources, including family sources.

16.     For these reasons the Tribunal is not satisfied that the applicants are unable to earn a sufficient livelihood for the purposes of the Act.  Therefore, the Tribunal finds that the discretion in s729(2)(e) of the Act to grant special benefit should not be exercised in the applicants’ favour.                

DECISION

17.     For reasons given orally at the hearing, the Tribunal affirms the decisions under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  29 May 2003

Date of decision:  29 May 2003
Advocate for applicants:              Self-represented
Advocate for respondent:            Ms E. King, Centrelink