Ekmekci and Secretary, Department of Family and Community Services

[2005] AATA 355

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 355

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/4

GENERAL ADMINISTRATIVE DIVISION

Re:         GULTEN EKMEKCI AND

RAMADAN EKMEKCI

Applicants

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             21 April 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - age pension - applicants resident outside Australia - maximum period of payment

Social Security Act 1991 ss 1214(1), 1217(1), 1220A, 1221-B1, 1221-C2

REASONS FOR DECISION

21 April 2005  G.D. Friedman, Member

1.      This is an application by Gulten Ekmekci and Ramadan Ekmekci (the applicants) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 December 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 16 September 2004 to reduce the applicants' age pensions after an absence from Australia of more than 26 weeks. 

2.      At the hearing on 11 April 2005 Ms E. Huseyin, the applicants’ daughter, represented the applicants, assisted by an interpreter in the Turkish language.  Ms K. Paul, 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 s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T24) plus one exhibit (Exhibit A1) lodged by the applicants.

BACKGROUND

4.      Mr Ekmekci was born in Cyprus on 8 November 1934 and arrived in Australia on 23 April 1983.  He was granted invalidity pension in 1988, was transferred to disability support pension in 1991, and has been receiving age pension since December 1999.  Mrs Ekmekci was born in Cyprus on 12 February 1936 and arrived in Australia on 23 April 1983.  She was granted invalidity pension in 1987, was transferred to disability support pension in 1991, and has been receiving age pension since November 1996.

5.      On 29 April 1998 the applicants informed Centrelink that they were planning to travel overseas for an indefinite period.  They were told that their age pensions would be paid at the full rate during their absence.  They left Australia on 22 May 1998, and have lived in Cyprus since.  On 10 September 2002 the applicants informed Centrelink that they would return to Australia on 17 November 2002.

6.      On 12 September 2002 Centrelink informed the applicants by letter that the rules for portability of pensions had changed, and if they remained in Australia for more than 26 weeks their entitlements would be subject to the new rules.  A similar letter was sent to the applicants on 19 November 2002.

7.      On 15 January 2003 the applicants notified Centrelink that they had returned to Australia and attended a Centrelink office to discuss their plans and entitlements.  On 15 December 2003 the applicants informed Centrelink that they would be leaving Australia on 24 December 2003 for an indefinite period.  On the same date Centrelink informed the applicants by letter that their age pension would be reduced by a proportionate amount if they remained out of Australia after 23 June 2004.  On 24 June 2004 the applicants were informed that their pensions had been reduced because they were still overseas.  On 5 October 2004 an authorised review officer affirmed the decision.

8.      On 23 November 2004 the applicants sought review of the Centrelink decision by the SSAT.  Following the SSAT decision, the applicants lodged an application with the Tribunal on 5 January 2005 for review of the SSAT decision.

9.      The issue before the Tribunal is whether the applicants’ age pension should have been reduced from 23 June 2004.

EVIDENCE

10.     In an affidavit sworn on 9 April 2005 (Exhibit A1) Ms Huseyin stated that the applicants were unsure whether they received the letters from Centrelink dated 12 September 2002 and 19 November 2002; but that, in any event, the letters were in English and Centrelink knew that the applicants do not speak or understand English.  Therefore, the letters were insufficient notice according to law.  She said that Centrelink should have provided the letters in the Turkish language or arranged for an interpreter.  She said that, as she was the applicant’s nominee, Centrelink should have informed her of the contents of the letters.

11.     Ms Huseyin stated that, at the interview on 15 January 2003, the Centrelink officer did not mention the changes in the law and that because of this omission the applicants remained in Australia more than 26 weeks and became subject to the new regulations.  She said that any correspondence after 26 weeks from the date the applicants arrived in Australia was irrelevant, because the new laws already applied to them.  She said that if the applicants had been made aware of the new law they would not have extended their stay in Australia beyond 26 weeks.

12.     In oral evidence Ms Huseyin stated that letters from Centrelink are sent directly to the applicants in Cyprus, and normally a friend or neighbour translates them.  She said that the letters dated 12 September 2002 and 19 November 2002 were important, and should have been translated by Centrelink.  She told the Tribunal that in December 2003 a Centrelink officer telephoned her and explained that the applicants’ pensions would be reduced in June 2004 if the applicants remained out of Australia for more than 26 weeks, but she did not understand the advice.  Ms Huseyin said that the officer advised her to wait until the pensions were reduced, and then seek review of the decision.

13.     Under cross-examination, Ms Huseyin agreed that the applicants could have avoided a reduction in their pensions by returning to Australia within 26 weeks of their departure on 24 December 2003.  However, she said that they are elderly and Mr Ekmekci has health problems, so a return in the Australian winter was not feasible.  She also pointed to financial constraints, as the applicants rely on the pensions for their income.  Ms Huseyin agreed that the applicants were aware of the telephone interpreter service listed on correspondence from Centrelink, but she maintained that responsibility for the communication of the reduction in pension lies with Centrelink, so the applicants should not be penalised.

CONSIDERATION OF THE ISSUES

14. Part 4.2 of the Social Security Act 1991 (the Act) deals with the portability of social security payments. Section 1214(1) of the Act provides:

1214.(1)   If the person’s maximum portability period for the payment is an unlimited period, the person’s right to continue to be paid the payment throughout the period of absence is not affected merely by the absence.

Section 1217(1) of the Act provides:

1217.(1)   The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a)the payment (as specified in column 2 of the table); and

(b)the class of persons to which the person belongs (as specified in column 3 of the table).

15. Section 1220A of the Act provides:

1220A.     A person’s rate of age pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if:

(a)the person has been continuously absent from Australia, throughout a period (the period of absence) of more than 26 weeks; and

(b)either:

(i)immediately before the period of absence commenced, the person was receiving the age pension; or

(ii)during the period of absence, the person’s claim for the age pension is granted under the Social Security (Administration) Act 1999.

Section 1221-C2 of the Act provides:

1221-C2. If a person's period of Australian working life residence is less than 300 months (25 years), the person's residence factor is:

person's Australian working life residence

300

16.     The Tribunal made its decision taking into account the written material and evidence given at the hearing.

17.     There was no dispute about the dates the applicants departed and returned from Australia.  The Tribunal accepts that Ms Huseyin and the applicants believe that they were not informed adequately about the legislative change that led to  a  reduction in their age pension, particularly during their interview on 15 January 003.  However, the Tribunal finds that Centrelink informed the applicants on 12 September 2002 and 19 November 2002 of changes to the law, and that the letters contained adequate information to enable them to seek further assistance, including access to the telephone interpreter service.  The applicants had ample opportunity to refer the letters to Ms Huseyin and to bring the letters with them in January 2003 if they did not understand the contents.

18.     The Tribunal also finds that on 15 December 2003 Centrelink advised Ms Huseyin of the consequences of her parents remaining out of Australia for more than 26 weeks, and that she had an opportunity to seek clarification if she did not understand the advice.

19.     As the applicants were receiving age pension before leaving Australia on 24 December 2003 and have been absent continuously since, s 1220A of the Act applies to the calculation of their ongoing rate for any period after the first 26 weeks that they remained overseas.

20.     Using the rate calculator at the end of s 1221 of the Act, the ongoing rate after 26 weeks overseas is calculated using a formula.  Working life is defined in s 1221‑B1 of the Act as the period beginning when the person turns 16 years and ending when the person reaches pension age. In this case the rate of pension payable to the applicants is calculated on the basis that Mr Ekmekci’s working life residence is 199 months, while Mrs Ekmekci’s working life residence is 160 months. Each applicant’s working life residence is less than 300 months, so using the formula the maximum pension payable to Mr Ekmekci is 199/300 of the full rate, and the maximum pension payable to Mrs Ekmekci is 160/300 of the full rate. Therefore, the decision to reduce their pensions from 23 June 2004 is correct.

DECISION

21.     The Tribunal affirms the decision under review.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  11 April 2005

Date of decision:  21 April 2005
Advocate for applicants:              Ms E. Huseyin
Advocate for respondent:            Ms K. Paul, Centrelink