DIMITRA FAGRIDAS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 834

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2903

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DIMITRA FAGRIDAS

Applicant

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

Respondent

DECISION

Tribunal Mr G. D. Friedman, Senior Member

Date5 October 2009

PlaceMelbourne

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

..................[signed]...........

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR. G.D. FRIEDMAN

No. 2009/2903

FAGRIDAS

and

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

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

MONDAY, 5 OCTOBER 2009

MRS D. FAGRIDAS appears in person
MR A. CARSON appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:  The facts in this matter are not in dispute.  Ms Fagridas has been receiving disability support pension [DSP] since 2007 and during that period her pension has not been cancelled at any time or suspended.  Her husband works as a labourer and Ms Fagridas has regularly notified Centrelink of his earnings on a fortnightly basis.  Centrelink then determines whether Ms Fagridas’ husband’s earnings exceed the cut-off point for her disability support pension.  And from what I’ve heard, in normal fortnights his earnings don’t affect her payment.

There is no dispute that she received payment of her DSP in the fortnight ending 13 October 2008 and in the fortnight beginning 14 October 2008 her husband’s earnings were in the region of … $2912.49, which exceeded the cut-off amount of $2651.20.  As a consequence of the notification of that income, because he worked night shift, Centrelink determined that no disability support pension was payable in the fortnight commencing 14 October 2008, and once again Ms Fagridas has not disputed that conclusion by Centrelink.

But she does say that the decision not to pay her the economic security strategy payment was unfair inasmuch as she has been a continuous holder of the relevant card, Centrelink Healthcare Card, and she has received payments continuously throughout the period since 2007, other than when her husband’s earnings had exceeded the cut-off point. The relevant legislation is section 900 of the Social Security Act 1991, and section 900 provides for qualification for the economic security strategy payment, and subsection (1) provides that:

A person is qualified for an economic security strategy payment if subsections (2), (3) or (4) … [applies to the person].

Subsection (2) reads:

This subsection applies to a person if … [(a)] the person was receiving one of the following payments in respect of 14 October 2008 …

And subsection (ii) of that [subsection] is disability support pension.  Now, that means that if a person was receiving a payment such as DSP on 14 October 2008, then that person is entitled to receive the strategy payment.

The strategy payment itself was introduced by legislation, the Social Security and Other Legislation (Economic Security Strategy) Act 2008, and the explanatory memorandum for the bill provides that section 900, subsections (2) and (3), reflect the intention to pay the economic security strategy payment only in circumstances where the payment was received by the person in respect of 14 October 2008. And section 38B of the Act provides for a deemed notional continuous period of receipt for certain purposes, but it refers to the continuous period in respect of which the person has received income-support payments and it does not reflect the payability of any social security payment and does not operate to deem a person to receive the payment in respect of any particular date.

In my view, section 38B does not assist a person who is under a continuous payment to qualify under section 900. The consequence of that is, and as specified in section 900 subsection (2)(a), that the qualifying date is 14 October.

I’m satisfied that Ms Fagridas, although she received disability support payment on the fortnight ending 13 October 2008, she did not receive and was not eligible to receive disability support payment on 14 October 2008.  As such she does not have any entitlement to the economic security strategy payment, and there is no discretion to the Tribunal in respect of this, and I affirm the decision under review.

Ms Fagridas, it is unfortunate you missed out by a day.  But as I said, other people missed out by $1 or $2 or two weeks or $2 or $10.  Whatever it is the government made the decision that it would be as it applied on that date, and it didn’t, as I understand it and as I recall, it didn’t give any notice that it was going to be that date.  It just decided afterwards.  You may view that as being unfair.  Other people might view it as being unfortunate and that’s the way it is.  But I don’t have any discretion and I’m afraid I can’t help you today.

END OF EXTRACT