Doherty and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1643

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1643

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1032

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN DOHERTY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 August 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed................

Deputy President

CATCHWORDS

SOCIAL SECURITY – deductions from invalid pension paid to a benevolent home – deductions authorised by statute - decision affirmed

Social Security Act 1947 (Cth.) – s 50(1)

Administrative Appeals Tribunal Act 1975 – s 34J

National Health Act 1953 – s 47(2)(b)(iii)

Doherty and Secretary, Department of Employment and Workplace Relations (2006) 43 AAR 247; [2006] AATA 604.

REASONS FOR DECISION

8 August 2007 Deputy President P E Hack SC    

1.This matter is a sequel to a decision made in July 2006[1]. For convenience I incorporate those reasons as setting out the factual background to the present matter. On that occasion I set aside the decision under review and remitted the matter to the Secretary for reconsideration.

[1]See Doherty and Secretary, Department of Employment and Workplace Relations (2006) 43 AAR 247; [2006] AATA 604.

2.That reconsideration has been undertaken and affirmed on external review. Mr Doherty now seeks review in this Tribunal. The parties are agreed that the matter may be adequately dealt with as a hearing on the papers pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth.)

3.In essence, Mr Doherty complains of deductions made from invalid pensions paid to him between 1984 and 1989. The amounts deducted were paid by the Department of Social Security to the Royal Derwent Benevolent Home in reliance upon what was then s 50 of the Social Security Act 1947 (Cth.).

4.Despite the views of Mr Doherty, it is not open to doubt that the Royal Derwent Benevolent Home was a “benevolent home”, as that term was defined in the Social Security Act 1950, That Act empowered the Secretary to pay to a benevolent home, from the pension of an inmate of such a home, an amount described as a “pension contribution” calculated in accordance with s 50(1) of that Act. In the earlier proceedings it had been assumed that the legislation permitted a deduction of 85%. I took the view that that was not so, but I was unable to reconcile the amounts deducted with the statutory formula nor were those then representing the Secretary able to demonstrate how the amounts were reconciled.

5.I must immediately acknowledge an error on my part in my earlier decision. The pensioner contribution was dependant, in part, on “the amount in force, from time to time, for the purposes of sub-paragraph (iii) of paragraph (b) of sub-section (2) of section 47 of the National Health Act 1953”. I had said, at paragraph 11 of my earlier reasons, that that amount “was $6.70 throughout the period in issue”. That is wrong. When the matter was remitted to Centrelink, it was the subject of a detailed and careful examination by the Authorised Review Officer who located the Statutory Rules made during the period that varied the amount from the $6.70 referred to in the original legislation. I am grateful to adopt the following table which sets out the product of the careful work of the Authorised Review Officer.

Date of effect	Section 47(2)(b)(iii) amount	Annual contribution amount	Fortnightly amount
1 January 1981	$8.60	$3,130.40	$120.40
7 May 1981	$8.95	$3.257.80	$125.30
5 November 1981	$9.30	$3,385.20	$130.20
11 February 1982	$9.70	$3,530.80	$135.80
6 May 1982	$10.25	$3,731.00	$143.50
4 November 1982	$10.90	$3,967.60	$152.60
5 May 1983	$11.50	$4,186.00	$161.00
3 November 1983	$11.95	$4,349.80	$167.30
3 May 1984	$12.40	$4,513.60	$173.60
1 November 1984	$12.75	$4,641.00	$178.50
13 June 1985	$13.65	$4,968.60	$191.10
14 November 1985	$14.10	$5,132.40	$197.40
1 May 1986	$14.60	$5,314.40	$204.40
25 December 1986	$15.15	$5,514.60	$212.10

6.The Authorised Review Officer and the Social Security Appeals Tribunal were satisfied by reference to this table that the amounts paid to Mr Doherty, and thus the amounts deducted and paid to the Royal Derwent Benevolent Home, were correct. Having carefully considered the material before me I reach the same conclusion.

7.I should add, for the sake of completeness, that the Tribunal has no power to address Mr Doherty’s concerns with his treatment in the Royal Derwent Benevolent Home and his more general concerns with the treatment of mental illness.

8.I would affirm the decision under review.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...................Signed...................................................
  Eleanor O’Gorman, Associate

Date of Hearing  Hearing on papers
Date of Decision  8 August 2007