Donnelly; Department of Family and Community Services

[2001] AATA 558

DECISION AND REASONS FOR DECISION [2001] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/787

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Applicant
           And    MARGUERITE DONNELLY        
  Respondent

DECISION

Tribunal       DR J CAMPBELL   

Date20 June 2001

PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Respondent was not entitled to payment of widow allowance at the date of application, namely 6 January 2000.

..............................................
  DR J CAMPBELL
  Member
CATCHWORDS
Social Security - widow allowance - New Zealand widow - migrates to live permanently in Australia - application for widow's allowance - qualifying period of residence - benefit - definition

Social Security Act 1991- section 408BA(2)

-Schedule 4 - Agreement between the Government of Australia and the Government of New Zealand on Social Security

REASONS FOR DECISION

DR J CAMPBELL               

1. The Applicant in this matter is the Secretary, Department of Family and Community Services. The Applicant seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT"), dated 17 April 2000, which found that Mrs Donnelly ("the Respondent"), provided she satisfies the qualifications set out in section 408BA(2)(b), (c) and (e) of the Social Security Act 1991, is qualified for widow allowance from the date of claim. The decision of the SSAT set aside the decision of an authorised delegate dated 6 January 2000, which had rejected the Respondent's claim for a widow allowance. This earlier decision had also been further affirmed in a decision dated 2 March 2000.

2. A hearing was held before the Tribunal at Newcastle on 10 October 2000.  The Respondent did not attend, nor was any reason given for her non-attendance.  The Applicant was represented by Mr Kenny, an advocate from the Advocacy and Administrative Law at Centrelink.

3. Following the non attendance of the Respondent at the hearing in Newcastle, on 10 October 2000, attempts to contact the Respondent by officers of the Tribunal were unsuccessful.  A letter was forwarded to the Respondent from the Tribunal on 11 October 2000 indicating that the Tribunal would proceed to make a decision based on the papers if they had not heard from the Respondent by 25 October 2000.  No response was received from the Respondent by the aforementioned date and a further registered letter was forwarded by the Tribunal, to the address advised by the Respondent on 5 December 2000.  No reply has been received by the Tribunal and as indicated in both letters to the Respondent, the Tribunal now moves to a consideration of the matter on the papers.

4. The following material is before the Tribunal:
   Exhibit          Description  Date  
   T1-T12 p1-37 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
    A1     Applicant's Statement of Facts and Contentions         19 June 2000         

issues

1. The relevant issue in this matter is whether the Respondent is entitled to payment of a widow allowance from the date of application, namely 6 January 2000.
   legislation

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular section 408BA(2) and Schedule 4, which details the Social Security Agreement between Australia and New Zealand ("the Agreement").
   background and facts drawn from the papers

3. The Tribunal notes the following particular facts which were drawn from the papers:
   (a)      the Respondent was born on 7 December 1949 in Wellington, New Zealand (T3, p9);
   (b)      the Respondent's husband died in New Zealand on 5 September 1997 (T5, p11);
   (c)       the Respondent was a New Zealand citizen at the date of her application;
   (d)      the Respondent worked for 15 hours per week in New Zealand from August 1999 to 16 December 1999 (T8, p18);
   (e)      the Respondent entered Australia on 18 December 1999 (T6, p13).  She resided with her son and daughter-in-law in Newcastle, transferred her assets to Australia and subsequently purchased a home of her own (T7, p14).
   (f)       On 20 December 1999, New Zealand widow benefit formerly paid to the Respondent was ceased as she had left New Zealand (T7, p14);
   (g)      On 6 January 2000, the Respondent claimed widow allowance from Centrelink (T8, p15).  The claim was rejected as she was not residentially qualified (T9, p26);
   (h)      On 15 February 2000, a Centrelink Officer affirmed the decision to reject the claim (T10, p27);

1. On 2 March 2000, an authorised review officer affirmed the decision to reject the claim for widow allowance (T11, p28);
   (j)        On 28 April 2000, the SSAT set aside the decision of the authorised review officer and found that the Respondent was entitled to payment of a widow allowance from the date of application; and
   (k)       At the SSAT hearing, the Respondent clearly identified that she had no intention of returning to live in New Zealand, and had had no such intention at the time she arrived in Australia (T2, p5).
   consideration and findings

1. The factual matters in this application are straightforward and unambiguous.  In essence, the Tribunal has to consider whether a 51 year old widow from New Zealand is entitled to payment of widow allowance from the date of her application, namely 6 January 2000, having arrived in Australia on 18 December 1999 with the intention of residing here permanently.
   legislative framework

2. Schedule 4 of the Act details the Social Security Agreement between Australia and New Zealand. Article 1 is an interpretation Article and provides, in part, for the definition of "benefit":

   "(a)     "benefit" means in relation to a Party, any of the benefits, pensions or allowances listed in Article 2(1), and includes any amount, increase or supplement that is payable in addition to that benefit, pension or allowance to or in respect of a person who is eligible for that amount, increase or supplement under the legislation of that Party."

1. Article 2 of the Agreement defines its legislative scope:

   "1.       Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:

   (a)in relation to Australia: the Social Security Act 1991 in so far as Act provides for, applies to or affects the following benefits:

   (i)        age pension;

   (ii)       disability support pension;

   (iii)      widow B pension;

   (iv)      sole parent pension;

   (v)       wife pension; and

   (vi)additional family payment payable to persons in receipt of the above benefits; and

   (b)in relation to New Zealand: the Social Security Act 1964 and the Social Welfare (Transitional Provisions) Act 1990 in so far as they provide for, apply to affect the following benefits:

   (i)        New Zealand superannuation;

   (ii)       veteran's pension;

   (iii)      invalids benefit;

   (iv)      widows benefit; and

   (v)       domestic purposes benefit for solo parents.

2.This Agreement shall apply to laws or regulations which extend the existing legislation to other categories of beneficiaries only if the two Parties so agree in a formal amendment to this Agreement."

1. As a consequence of this Agreement, the Tribunal, in noting that the legislative scope of the Agreement extends to six particular benefits, concludes that the benefit of widow allowance is not caught within the scope of the aforesaid agreement.

2. The qualifications for widow allowance are set out in section 408BA(2), which states:

   "408BA(2) Subject to section 408BB, a woman is qualified for widow allowance in respect of a period if:
   (a)      she has turned 50; and
   (b)      she was a member of a couple and since turning 40:

   (i)        her partner died; or

   (ii)       she separated from her partner; or

   (iii)      she divorced from her husband; and
   (c)       she satisfies the Secretary that she has no recent workforce experience on the day when she makes her claim for the allowance; and
   (d)      at least one of the following is satisfied:

   (i)if the woman entered Australia before 1 April 1996 – the woman has been an Australian resident for a continuous period of at least 26 weeks immediately before the day she lodged the claim for the allowance; or

   (ia)if the woman entered Australia on or after 1 April 1996 – the woman has been an Australian resident for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or

   (ii)she has, at any time, been an Australian resident for a continuous period of at least 10 years; or

   (iii)she has a qualifying residence exemption for widow allowance; or

   (iv)both the woman and her partner were Australian residents at the time when the qualifying event under paragraph (b) occurred; and

   (e)      throughout the period, she:

   (i)        is not a member of a couple; and

   (ii)       is in Australia."

1. In turning to a consideration of the facts in this matter, against the requirements of the statutory framework, it is evident to the Tribunal that if the Respondent entered Australia on or after 1 April 1996, she would have to be an Australian resident for a period of 104 weeks before the day she lodged the claim for the allowances.  It is clear to the Tribunal that the Respondent does not satisfy this requirement, nominated in s 408BA(2)(d)(ia).  Further, the Tribunal concludes that she does not satisfy s 408BA(2)(d)(ii) as she had not been an Australian resident for a continuous period of at least 10 years, nor does she have a qualifying residence exemption, as nominated in s 408BA(2)(d)(iii).

2. In relation to s 408 BA(2)(d)(iii), the Tribunal observes that the SSAT in their decision concluded that Article 8 of the Australian and International Agreement provided for the Respondent to be eligible for the widow allowance, as she satisfied the necessary requirements of that subsection.  The only difficulty with this line of reasoning is, as the Tribunal has already outlined, that the legislative scope of the Agreement does not extend to the benefit of widow allowance.

3. It is the Tribunal's finding that the SSAT was in error with the approach they adopted, in that the "benefit" of a widow allowance did not fall within the legislative ambit of the Social Security Agreement between Australia and New Zealand as defined within Article 2 of that Agreement.  As such, any subsequent Articles in the Agreement are not available to assist the Respondent in this matter.

4. Further, the Tribunal concludes as the Respondent has not satisfied any of the requirements nominated in s 408BA(2)(d), the Respondent does not satisfy the necessary qualifications for widow allowance.

5. In final comment, the Tribunal, in the absence of necessary evidence from the Respondent, is unable to make a finding on whether or not the Respondent would be able to satisfy s 408BA(2)(c).

6. The Tribunal notes that Article 5(1)(d) of the Agreement equates the Australian widow B pension, with the New Zealand widows benefit paid to persons without dependent children.  The Respondent is unable to qualify for widow B pension as she was not qualified and a claimant prior to 20 March 1997.
   DETERMINATION

1. The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Respondent was not entitled to payment of widow allowance at the date of application, namely 6 January 2000.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of DR J CAMPBELL

Signed:         .....................................................................................
  Associate

Date/s of Hearing  10 October 2000
Date of Decision  20 June 2001
Solicitor for the Applicant         John Kenny
Solicitor for the Respondent    Self Represented