Davies and Department of Family and Community Services - [2001] AATA 721

DECISION AND REASONS FOR DECISION [2001] AATA 721

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/01

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      STANLEY THOMAS DAVIES
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date17 August 2001
PlaceHobart

Decision      The decision under review is affirmed.
  [S F Cunningham]
  Part-Time Member
CATCHWORDS
Social Security – age pension – UK reciprocal agreement – overpayment of UK retirement pension – whether arrears are payable from the Australian age pension.

17 August 2001 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision made by a Centrelink officer on 23 June 2000, and was subsequently affirmed by an authorised review officer on 4 August 2000, to reject the applicant's claim for arrears of payment of the age pension.
As the applicant is a resident of the United Kingdom, both parties requested that the Tribunal decide the appeal on the basis of the written material before it. This included the applicant's letter of appeal to the Tribunal, dated 7 December 2000 and the 'T' documents which were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.
The applicant had been in receipt of an Australian age pension and a UK retirement pension since he returned with his wife to the United Kingdom in 1998. Following advice from the English Department of Social Security on 30 May 2000, that he had been overpaid the sum of £2,770.85 in his UK retirement pension for the period 30 June 1997 to 20 March 2000, on 5 June 2000 he wrote to Centrelink requesting the payment of arrears of his Australian age pension from June 1997.
The applicant contends that the decision of the Social Security Appeals Tribunal (SSAT), which affirmed the decision of the authorised review officer on 14 November 2000 was "wrong and unfair". He claims that the Social Security Appeals Tribunal's conclusion that there were no "letters of adjustment" was incorrect. The applicant pointed out that his Australian age pension was adjusted following the receipt of funds from the sale of his house, and that a further adjustment was made when he purchased his house in the UK.
The applicant stated that he had notified Centrelink as soon as he was made aware in June 2000 of the reduction in his UK retirement pension by almost £20 per week. It is his contention that as his UK pension was reduced by the sum of £20 per week, he must have been underpaid by a similar sum in his Australian age pension.
The Australian age pension is paid in accordance with the provisions of the Social Security Act 1991 ("the Act"). The rate of payment is worked out using the pension rate calculator A which is set out at the end of s.1064. The calculation process involves an assessment of any income, any rent assistance received by the applicant, as well as a reduction for assets where appropriate.
The applicant has contended that as he is the claimant, any income received by his wife through a UK pension should be disregarded. The Act however clearly states that in calculating the rate of an age pension, members of couple are treated as pooling their resources which includes income and assets and sharing them on a 50/50 basis. (Module E - Ordinary Income Test 1064-E2)
The issue for the Tribunal is whether there was a readjustment in the amount of age pension paid to the applicant, taking into account the amount of overpayment received by him from his UK pension. The applicant was first informed of the overpayment by a letter from the English Department of Social Security, dated 30 May 2000. The letter set out the weekly rates of pension paid to the applicant, the weekly rates of revised pension, and the calculation of the weekly amounts of overpaid pension for the period 30 June 1997 to 12 April 1999 and advice that the total overpayment amounted to £2,770.85. The applicant seems to be contending that Centrelink must have been aware of the amounts of the overpayment and would have taken them into account in calculating a reduced amount of Australian age pension payable to the applicant.
It was the respondent's contention however, that it was not aware of any amounts of overpayment and that it first became aware when so informed by the English Department of Social Security which was requested by the applicant to provide written confirmation of the amounts of overpayment. The English Department of Social Security conceded that the overpayments arose because they incorrectly considered the applicant's retirement pension under the terms of the reciprocal agreement on social security between the United Kingdom and Australia.
The material before the Tribunal confirms the respondent's contention that throughout the relevant period the respondent was not aware of the revised amount of the applicant's UK pension. Despite the applicant's contention that there must have been a readjustment in the amount of Australian age pension payable in the reciprocal amount of £20, there is no evidence before the Tribunal that this in fact occurred. The evidence is that there was no re-adjustment made to the amount of age pension paid to the applicant on the basis of the revised amount of his UK pension. The applicant has not referred the Tribunal to any specific information provided by him to the respondent advising of the increased amount of his UK pension. Accordingly, the Tribunal concludes that the respondent was not aware of the increased pension payable during the relevant period that there was no readjustment made to the applicant's age pension, and is therefore unable to find that any arrears are payable for that period.
The revised decision of the delegate of the respondent, dated 14 July 2000 sets out the amounts of income taken into account by the respondent in assessing the applicant's pension entitlement for the relevant period. Those amounts were not those actually paid to the applicant by the English Department of Social Security as set out in their letter to the applicant of 30 May 2000, but are consistent with the revised amount of payment actually payable during the relevant period.
For the above reasons the Tribunal affirms the decision under review.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing    Overseas application -matter decided on the papers.
Date of Decision  17 August 2001