Fokas and Department of Family and Community Services
[2001] AATA 1012
•12 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1012
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/533
GENERAL ADMINISTRATIVE DIVISION )
Re MARIA FOKAS
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms SM Bullock
Date 12 December 2001
Place Sydney
Decision The decision under review is affirmed
.………………………………
Ms SM BullockSenior Member
CATCHWORDS
SOCIAL SECURITY - Widow A Pension - Widow B Pension - Widow Allowance
LEGISLATION
Social Security Act 1991 ss 362, 362A, 366, 408BA
Social Security Act 1947 ss 59, 60
Social Security (Administration) Act 1999 s 15
REASONS FOR DECISION
12 December 2001 Ms SM Bullock , Senior Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Maria Fokas ("the Applicant") of a decision made by the Social Security Appeals Tribunal ("the SSAT") on 15 March 2001 (T2) that she was not qualified for a Widow Allowance or Widow B Pension. The SSAT affirmed the Departmental decision of 14 November 2000 not to pay Mrs Fokas Widow Allowance or Widow B Pension. Mrs Fokas did not dispute at the SSAT or before the Tribunal that she was not qualified for a Widow Allowance.
A hearing was held in Sydney before the Tribunal on 25 June and 6 August 2001. Mrs Fokas represented herself and provided oral evidence. The Respondent, the Secretary, Department of Family and Community Services, was represented by Ms D Gotee and Mr J. Kenny, Departmental Advocates. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents, T1 – T25) and the following exhibits:
Exhibit No Description Date
Exhibit A1 Applicant's letter to Department of Family and Community Services 9 November 2000
Exhibit A2 Letter to the Tribunal by Mrs Fokas 18 June 2001
Exhibit A3 Three letters from Mrs Fokas to the Tribunal including a Statutory Declaration 22 June 2001,
Exhibit A4 Statement by Mrs Fokas to the SSAT Lodged on 5 March 2001
Exhibit A5 Letter from SSAT to Mrs Fokas 5 March 2001
Exhibit A6 Mrs Fokas' Application for Review to the SSAT 5 February 2001
Exhibit A7 Mrs Fokas' Statutory Declaration/ annexures 13 March 2001 and various other dates
Exhibit A8 Extracts 1) Part IV Widow's Pensions, Sections 59, 59AA, 59A and 60 of the Social Services Act 1947-1973 2) Social Security and Veterans' Entitlements Amendment Act No. 88,1987
Exhibit A9 Extract and Legislative History from the Social Security Act 1991, Part 2.8 Widow B Pension
Exhibit A10 Computer printout of Mrs Fokas' Allowance/Benefit History 14 March 2000
Exhibit A11 Letter from Mrs Fokas requesting a stay of the SSAT's Decision 1 June 2001
Exhibit A12 Printout from the Internet, Social Security Guide, Legislative History for section 366 of the Social Security Act 1991
Exhibit A13 Extract from the Social Security Legislation Amendment No. 133, 1988
Exhibit A14 Departmental letter to Mrs Fokas 28 June1982
Exhibit A15 Extract from the Social Security (Administration) Act 1999, No. 191 of 1999
Exhibit A16 Mrs Fokas' final written submissions 3 August 2001
Exhibit A17 Letter from Mrs Fokas 27 July 2001
Exhibit A18 Amendments to the Social Security Act 1991, relating to Widows and Partners, contained in the Social Security Legislation Amendment (Budget and Other Measures) Act 1996, No.84, 1996
Exhibit A19 Photograph of Mrs Fokas in 1992
Exhibit A20 Departmental Index/Decision Proforma in relation to Mrs Fokas 27 August 1992
Exhibit R1 Respondent's Statement of Facts and Contentions 19 June 2001
Exhibit R2 Respondent's submission on Mrs Fokas' request for a Stay of the SSAT'S Decision 15 June 2001
Exhibit R3 Departmental letter to Mrs Fokas from Ms S Armstrong, Regional Manager 24 August 1992
Exhibit R4 Respondent's final written submissions 18 July 2001
Exhibit R5 Extract from the Social Security Administration Act 1999, commencing on 20 March 2000
ISSUES
At hearing, Mrs Fokas stated that she accepts that she is not eligible for a Widow Allowance and does not wish to pursue this matter.
Also at the first hearing, Mrs Fokas stated that she wished to withdraw her request for a stay of the SSAT's decision. Mrs Fokas subsequently changed her mind and advised that she did wish to make a request for a stay of the SSAT's decision.
The issues before the Tribunal to determine are:
(a)Whether or not Mrs Fokas' request for a stay of the SSAT's decision of 15 March 2001 should be granted.
(b) Whether or not Mrs Fokas is qualified to receive a Widow B Pension.
Legislation
A decision in this matter requires consideration of various provisions within the Social Security Act 1991 ("the Act"), the Social Security Act 1947 ("the 1947 Act") and the Social Security (Administration) Act 1999.
Section 362A of the Act deals with qualification for Widow Pension and as current at the time of Mrs Fokas' claim stated:
"Widow B pension not to be granted in certain cases
362A(1) In spite of anything else in this Part, a widow B pension must not be granted to a woman unless:
(a) the woman's claim for the pension is lodged before 20 March 1997; and
(b) the woman is qualified for the pension before that day.
362(2) If subsection 366(2) applies to a woman, the woman is taken, for the purposes of subsection (1) of this section, to have lodged a claim on the day on which the initial claim was made.
…"
Section 362 of the Act, as relevant at the time of Mrs Fokas' claim ,stated:
"Qualification for widow B pension
362(1) A woman is qualified for a widow B pension if:
(a) the woman:
(i) was, immediately before 1 July 1987, receiving a widow's pension as a class B widow under the 1947 Act; or
(ii) on 1 July 1987 had turned 45 years old and:
(A) was receiving a supporting parent's benefit or a widow's pension as a class A widow on or after that day; or
(B) was receiving a sole parent's pension after 1 March 1989; or
(iii) on 1 July 1987 had turned 50 years old; and
…"
Section 366 of the Act as relevant at the time and prior to its repeal stated:
"Provisional commencement day
General rule
366(1) Subject to subsections (2) and (3) and section 367, a woman's provisional commencement day is the day on which the woman claims the widow B pension.
Initial incorrect or inappropriate claim followed by claim for widow B pension
366(2) If:
(a) a woman makes a claim (in this subsection called the initial claim) for:
(i) a social security or service pension, a social security benefit or a parenting allowance; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a widow B pension; and
(b) on the day on which the woman makes the initial claim, the woman is qualified for a widow B pension; and
(c) the woman subsequently makes a claim for a widow B pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the woman;
the woman's provisional commencement day is the day on which the woman made the initial claim.
…"
Section 366 was replaced by section 15 of the Social Security (Administration) Act, 191 of 1999. Section 15 of the Social Security (Administration) Act 1999 stated:
"Deemed claim—incorrect claim
(1) For the purposes of the social security law, if:(a) a person makes a claim for a social security payment; and
(b) the claim is an incorrect claim; and
(c) the person subsequently makes a claim for another social security payment for which the person is qualified; and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that other social security payment on the day on which he or she made the incorrect claim.
(2) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a social security payment, other than a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.
(3) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment.
(4) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment; and
(b) when the claim was made, the person was qualified for a social security payment, other than a supplementary payment.
(5) In this section:
supplementary payment means:(a) carer allowance; or
(b) double orphan pension; or
(c) education entry payment; or
(d) employment entry payment; or
(e) family allowance; or
(f) family tax payment; or
(g) maternity allowance; or
(h) maternity immunisation allowance; or
(i) mobility allowance; or
(j) pensioner education supplement.
…"
Section 408BA(2) of the Act deals with qualification for Widow Allowance and states:
"Qualification for widow allowance
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 and before the commencement day—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
(ib) if the woman entered Australia on or after the commencement day—the woman has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or
(ii) she has 10 years qualifying Australian residence; 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) throughout the period, she is an Australian resident.
Note 1: For recent workforce experience see subsection (3).
Note 2: For Australian resident and qualifying residence exemption see section 7.
Note 4: For member of a couple see section 4.
…"
The 1947 Act also holds some relevance for a determination in this matter.
Of relevance are sections 59 and 60 of the Social Security Act 1947, but specifically, the basic qualification provisions for a Class B Widow Pension were contained in section 60 of the 1947 Act. Section 60 had been amended on a number of occasions. The SSAT quoted subsection 60(1)(b) of the 1947 Act as it stood following amendment by the Social Security and Repatriation Legislation Amendment No 95, 1985. The Social Security and Veterans' Entitlements Amendment Act No 88, 1987 included an amendment of subsection 60(1)(b) of the 1947 Act substituting the following:
"(b) a widow who does not have a dependent child and who:
i.immediately before 1 July 1987 was in receipt of a widow's pension and is a former class B widow;
ii.on 1 July 1987 had attained the age of 45 years and was in receipt of a supporting parent's benefit or a widow's pension as a class A widow on that day or commences to receive such a benefit or pension after that day; or
iii.on 1 July 1987, had attained the age of 50 years; or
…"
Section 60 of the 1947 Act was then renumbered as section 44 by the Social Security Amendment Act 1987.
BackgroundThe following information is provided by way of background and the material contained herein is not disputed.
Mrs Fokas was born in Greece on 12 December 1946. She came to Australia in November 1971 (T9, p59).
On 5 August 1979, Mrs Fokas' decree nisi of Dissolution of Marriage became absolute. Mrs Fokas was 32 years old at the time (T3).
On 13 November 2000, Mrs Focas lodged a claim for Widow Allowance (T9) noting that she did not remember the date of her decree absolute ("approx 77"), but recording that she was divorced "since turning 40 (between that time)"(T9, p57).
On 13 November 2000, Mrs Fokas wrote to the Department noting that she was dependent on her husband before he "deserted" her. She noted that she no longer had the custody, care and control of her children when she was 46 years of age. Accordingly, Mrs Fokas concluded that she was eligible for a Widow's Pension. Mrs Fokas further wrote that:
"…I am migrant, I could not understand much English then. I believe that other migrant women would be in the same situation.
As I have been in stress and started having difficulty with my health, I contact the Centrelink over the phone asking if I was eligible for Widow's Pension.
I did not know anything then. I was told over the phone that Centrelink will contact me. An appointment was made. I was told that I am not qualified for Widow Allowance, (I did not ask for Widow Allowance), and I was refused to be given any form. On my persistence I was given the form for Widow Allowance. Since then I did some research that led me in discovering of the earlier mentioned [Widow B]…"
Mrs Fokas then quoted from the "Guide To Social Security Law/ 3.4.3.10" about the Widow Allowance including the qualification criteria (T10,p75).
On 14 November 2000, Mrs Fokas' claim for Widow Allowance was refused because she "became widowed, divorced or separated before you turned 40." (T11).
On 14 November 2000, Mrs Fokas requested a review of the decision to refuse her a Widow Allowance (T12).
On 14 December 2000, the original decision-maker confirmed in writing the decision of 14 November 2000 (T13). The original decision-maker noted that Mrs Fokas was 32 years and 6 months old when the decree nisi became absolute on 5 August 1979 and therefore she did not satisfy the criteria that since turning 40, she was divorced (T13,p81).
An Authorised Review Officer ("ARO") subsequently reviewed the original decision to refuse a Widow Allowance. On 25 January 2001, the ARO wrote to Mrs Fokas (T23). The ARO reiterated that Mrs Fokas was not eligible for a Widow Allowance under the provisions of subsection 408BA(2) of the Act. The ARO also referred to Mrs Fokas' assertion that she was eligible for a Widow B Pension under subsection 362(2), and subsection 366(2)(b) and (c) of the Act. The ARO noted that the information sheet Mrs Fokas had provided in terms of the relevant legislation had been "superseded" and that the "Widow B Pension no longer exists". The ARO noted that subsection 362A(1) which was relevant, stated that Widow B Pension must not be granted to a woman unless the woman's claim was lodged before 20 March 1997 and the woman was qualified for that pension before that day. The ARO concluded that Mrs Fokas was not eligible for Widow B pension (T23).
On 22 January 2001, Mrs Fokas appealed to the SSAT noting that:
"After and since does not have exactly the same meaning. Furthermore I was given the wrong form. I have requested and still persist to be on Widow's B Pension. My request is done under section 366(2) of the Social Security Act 1991(T21, p93).
On 15 March 2001, the SSAT affirmed the Departmental decision of 14 November 2000 not to pay Widow Allowance or Widow B Pension to Mrs Fokas. The SSAT noted that at hearing, Mrs Fokas was not pressing for Widow Allowance. The SSAT examined a number of possibilities in relation to Mrs Fokas' qualification. First, it examined subsections 362A(1) and (2) of the Act. Mrs Fokas had argued at the SSAT that despite the prohibitions on new claims contained in section 362A, an earlier claim could be taken to have been a claim for Widow B Pension. The SSAT noted that subsection 366(2) was repealed by Act No. 192, 1999 by section 3, Schedule 1(43) (T2, p 43). The SSAT however included the previously repealed subsection 366(2) of the Act. The SSAT noted that Mrs Fokas was not sure what this earlier claim might be, but the SSAT noted that there was a previous claim in January 1995 for Newstart/Jobsearch Allowance. There was no evidence of Mrs Fokas subsequently lodging a claim for Widow B Pension and even if the 1995 claim was regarded as similar in character to a claim for Widow B Pension and a subsequent claim for Widow B Pension had been made, Mrs Fokas would still have to meet the qualification criteria for a Widow B Pension.
The SSAT examined the qualification criteria for Widow B Pension in January 1995. Mrs Fokas would have had to have been receiving a Widow's Pension as a Widow B Pension recipient under the 1947 Act or satisfy subsection 362(1)(a)(ii) or 362(1)(a) (iii) of the Act. Basic qualification for a Widow B Pension under the 1947 Act was dealt with under subsection 60(1)(b) of the 1947 Act.
The SSAT found no evidence that immediately before 1 July 1987, as was required by the legislation, Mrs Fokas was receiving a Widow B Pension. Further, on 1 July 1987, Mrs Fokas was not 45 years of age nor had she turned 50 years old. The SSAT found that Mrs Fokas did not satisfy subsections 362(1)(a)(i), (ii) or (iii) of the Act and also did not satisfy subsection 60(1)(b) of the 1947 Act. The SSAT stated that in 1995 or even earlier in 1992, if that was an earlier claim, and also at the time of claim on 13 November 2000, Mrs Fokas was not qualified for a Widow B Pension.
On 24 April 2001, Mrs Fokas lodged an application for review to the Tribunal with a 35 page Statutory Declaration (T1).
EVIDENCE AND SUBMISSIONS OF MRS FOKAS
(A) Stay Application
Mrs Fokas had initially requested a stay of the SSAT's decision. However at the first hearing, she informed the Tribunal that she no longer wished to pursue this matter. Subsequently, Mrs Fokas advised that she did wish to pursue her request for a stay.
Mrs Fokas submitted that the ARO in her letter of 25 January 2001, was incorrect in asserting that Widow B Pension no longer existed. Mrs Fokas noted that the ARO had decided on the basis of subsection 362A(1)(a) of the Act because Mrs Fokas had not lodged a claim for Widow B Pension before 20 March 1997. Mrs Fokas submitted that in 1997, she was not in the situation that she is in now and was not ready to receive a Widow B Pension.
A further reason for the stay, referred to by Mrs Fokas as "Reason B", is that a member of the SSAT had been "untruthful" in finding as a fact in its decision that Mrs Fokas was in receipt of Sole Parent Pension for "an unspecified period". Mrs Fokas noted that she was in fact in receipt of Sole Parent Pension from 1 March 1989 to 15 August 1992.
Mrs Fokas stated that a further reason for requesting a stay, "Reason C", is that the Respondent is incorrectly relying on subsection 366(2) of the Act, as this section was repealed by Act No. 192, 1999, "by section 3 Schedule 1 (43) to be substituted with a new section 364 [which commenced] on 20 March 2000." Mrs Fokas then referred the Tribunal to the Social Security (Administration) Act 1999, number 191, Part 4, Division 1, section 124. Mrs Fokas submitted that the Department was wrongly relying on subsection 366(2) of the 1991 Act as this section has been repealed. This was another reason for Mrs Fokas to request a stay.
Mrs Fokas stated that "Reason D" for requesting a stay is that the Respondent had provided a copy of a Jobsearch Allowance dated 13 August 1992 which, while signed by Mrs Fokas, was not filled in by her. Mrs Fokas stated that this indicated that she had not made a claim for Jobsearch Allowance on 13 August 1992.
Mrs Fokas stated that she was also requesting a stay because she did not know the outcome of the Tribunal's decision and she may have to pursue her matter further in the Federal Court and that could take a long time. Mrs Fokas saw that having a stay on the SSAT's decision would assist her in the pursuit of a Widow B Pension, which could take her to the Federal Court, to further enhance her prospects of ultimately being successful in receiving a Widow B Pension.
Mr Kenny, for the Respondent, submitted that the purpose of a stay is to preserve the effectiveness of a final hearing of the application for review. Stays should not be granted because previous decision-makers have made a "few inconsequential errors in the reasons for their decision". In deciding whether or not a stay should be granted, there had to be consideration of whether or not Mrs Fokas has a prima facie case in the matter. Mr Kenny acknowledged that Mrs Fokas was correct in pointing out the error that she had not been on Sole Parent Pension for an indeterminate period. Mr Kenny also pointed out that it is clear that Mrs Fokas became a Class A Widow when the 1989 amendments were made. This however was totally irrelevant, on Mr Kenny's submission, to whether or not Mrs Fokas' request for a stay should be granted. Mrs Fokas was also correct in pointing out that section 366 of the Act no longer existed and Mr Kenny noted that that section is now section 15 of the Social Security (Administration) Act 1999. Mr Kenny submitted that Mrs Fokas is concentrating on peripheral issues and those issues do not go to the heart of the matter. Prima facie, Mrs Fokas does not qualify for a Widow B Pension under sections 362 and section 362A of the Act.
Mr Kenny submitted that Mrs Fokas does not have a prima facie case and the effectiveness of the hearing would not be advanced by granting a stay. Further, Mr Kenny submitted that there is no underlying favourable decision to stay or put a hold on. In this regard, Mr Kenny contended that Mrs Fokas is asking that a stay be put on the decision to reject a Widow Class B Pension. If a stay was to be granted, what would then occur is Mrs Fokas' claim for Widow B Pension would become an undetermined claim. There is no underlying favourable decision at any stage that Mrs Fokas qualifies for a Widow B Pension and it simply would not be possible for the Tribunal exercising its powers, to give a stay direction to make that pension payable. It is not within the powers of the Tribunal, Mr Kenny concluded.
(B) Widow B PensionMrs Fokas told the Tribunal that she came to Australia from Greece in 1971. She very quickly obtained work as an apprentice hairdresser and in the second week in Australia, she commenced work as a cleaner in a Hospital at North Sydney. Some months later, Mrs Fokas moved to Crown Street in the inner city of Sydney and commenced work as a cleaner at the Crown Street Women's Hospital. Mrs Fokas injured her back using a heavy polishing machine. She was unable to attend work because of the injury. Mrs Fokas subsequently found work in a factory but could not complete a day there. Next, Mrs Fokas worked at a hairdresser until one week before giving birth to her first child, Erene, whose date of birth is 18 May 1973. Mrs Fokas had her son on 15 August 1976. Mrs Fokas stayed at home after her daughter's birth. She had discussed the option of her continuing to work with her husband and they agreed that Mrs Fokas should stay at home to care for their child. Mr Fokas was a labourer and Mrs Fokas told the Tribunal that she in fact could earn more money than him.
When the children were older, Mrs Fokas was looking for work but she also became very involved with local/community politics. Mrs Fokas told the Tribunal that she ran as a "local candidate". Mrs Fokas commented that her children did not help her very much and on one occasion she ended up in hospital with bad pain in her chest and feet.
Mrs Fokas stated that she was divorced in 1979, when she was 32 years of age. Mrs Fokas told the Tribunal that her husband had abandoned her and the children. Mrs Fokas further told the Tribunal that she hates the thought of being considered "disabled" and she also " strongly refuses Sickness Benefit". It was a very difficult time for her after her husband left. He was in Greece and she needed financial help. Mrs Fokas approached the Department and she filled in some forms. At that time, she strongly objected to the term "widow" and was not ready to be called that. She noted that even if the Widow's Pension had been offered to her at that time, she would not have accepted it. She is also very sensitive, she told the Tribunal, to being referred to as a "woman" as it makes her feel "old". The term "lady" is better, she informed the Tribunal.
Mrs Fokas told the Tribunal she did not keep up with the developments concerning Social Security benefits and pensions because she was too busy looking after the children. Her children were demanding as they got older and less helpful. Mrs Fokas further explained that she had not had the time to develop another relationship with a man because her children were too demanding. She had her own problems and "was in her own world". Mrs Fokas blamed her children for not allowing her to be more informed and she stated that if she had known at a younger age about the Widow B Pension, at least she would have knowledge of it. Mrs Fokas maintained her view however that it was a pension which was available for her when she was older and it more suited her circumstances. It is Mrs Fokas' position that she believes she should have been paid a Widow B Pension from the age of 55 years.
In November 2000, Mrs Fokas had spoken to her local doctor about how she was feeling and he gave her certain advice. Subsequently, Mrs Fokas telephoned the Department to ask if she could go on a pension. She had previously received telephone advice in August 2000 but acknowledged to the Tribunal that she is not very good on the phone because of her difficulties in concentration. Mrs Fokas stated that she asked the Department for a Widow B Pension form but the Department refused to give it to her. Mrs Fokas reluctantly filled out the form given to her which was for a Widow Allowance. Mrs Fokas stated that she had no other option but to complete the form.
Mrs Fokas told the Tribunal that she suffers from asthma but refuses to take any medication for that or any other condition. For example, two weeks before the Hearing Mrs Fokas had a very badly infected mouth. She had attended hospital, which had recommended antibiotics, but she refused this, choosing to treat herself by gargling salty water. Mrs Fokas vehemently stated that she would not consider applying for a Disability Support Pension, because it not fit her or her situation. Mrs Fokas stated that she is older and has "reasonable age problems", but is not sick or disabled. While Mrs Fokas has been ill at various stages, she hates being considered disabled, she told the Tribunal. As Mrs Fokas does not consider that she is ill, she would not accept Sickness Benefit. Currently, Mrs Fokas does not wish to continue to receive a Newstart Allowance. Mrs Fokas stated that it was harassment that women of her age should be required to lodge continuation forms. In her circumstances the word "employment" was harassment, she submitted. The reason that Mrs Fokas did not want to remain on Newstart Allowance is because there is a stigma attached to being unemployed, she stated to the Tribunal. Mrs Fokas stated that she did not want to have the stigma of being a "Bludger" and she now did not mind the title of "Widow" as that suited her and because she now felt old and tired (Transcript 6 August 2001, p45).
Mrs Fokas submitted that she is a former Widow B Pensioner. In this regard she stated that she did not have a dependent child and immediately before 1 July 1987, she was in receipt of a Widow's Pension.
Referring to the extract from the Act contained at T24, p103, which deals with subsection 362(1) of the Act, Mrs Fokas did not agree with Mr Kenny's submission that immediately before 1 July 1987, she was a Class A Widow. Mrs Fokas referred the Tribunal to the Social Security Legislation Amendment Act No. 133 of 1988 which commenced on 1 March 1989. Mrs Fokas stated that this legislation indicated that a person who was immediately before 1 March 1989 in receipt of a Widow's Pension as a Class A under Part B of the 1947 Act, shall be taken to have been granted a Sole Parent's Pension under Part V of the Social Security Act 1947 (Exhibit A13). Mrs Fokas then referred the Tribunal to T25, p108 which dealt with the history of Widow B Pension. Mrs Fokas submitted that she was a Class A Widow but then she was changed to a Sole Parent Pension. This was not for an unspecified period, as asserted by the SSAT, because the legislation indicated when this occurred in 1989.
Mrs Fokas submitted that the next step in proving her eligibility for Widow B Pension was to consider subsection 366(2) of the Act. This is because subsection 362A(2) refers to the lodging of an application under subsection 366(2) of the Act.
Mrs Fokas told the Tribunal that she had discovered that the law is written in such a way that it can have two explanations. Under section 366, she has to ascertain if she is entitled. Mrs Fokas maintains that at the time of her claim on 13 November 2000, she was qualified for Widow B pension but earlier, in 1992 or 1995, she was not ready to make a claim for Widow B Pension as she was still quite capable. Mrs Fokas maintains however that she is qualified for Widow B Pension pursuant to the provisions of subsection 362(1)(a)(ii) of the Act.
Mrs Fokas then proceeded to go through a detailed process of tracing her qualification for Widow B Pension. To find out if she was qualified under subsection 362A(1) of the Act, she then considered subsection 362(1) of the Act. Mrs Fokas stated that immediately before 1 July 1987, she was receiving a Class B Widow's Pension under the 1947 Act. The next step was to go to sections 59 and 60 of the 1947 Act. Mrs Fokas considered subsection 60(1)(b) of the 1947 Act, which she noted has been repealed by the Social Security and Veterans' Entitlement Amendment Act No. 88 of 1987. Mrs Fokas submitted that under the relevant legislation, a widow who did not have a dependent child, and Mrs Fokas maintained she did not have a dependent child, and immediately before 1 July 1987 was in receipt of a Widow's Pension, is a former Class B Pension. There lay her qualification, Mrs Fokas submitted, and she maintained that she met this criteria of being a former Class B Widow. While the Respondent submitted that Mrs Fokas was not a former Widow B Pensioner, Mrs Fokas strongly submitted that she was. Mrs Fokas submitted therefore that she had proved that she was not a sole parent for an unspecified period and that in fact she was a sole parent pensioner for the period from 1989 until her son turned 16 in August 1992. Mrs Fokas contended that she was a Class A Widow, who was then transferred to a Sole Parent Pension.
Mrs Fokas further submitted that the Respondent was basing its case on the repealed legislation of subsection 366(2) of the Act and the Respondent should not use repealed law. Mrs Fokas submitted that when the law is repealed, the new law could be used to override a person's rights and referred the Tribunal to section 124 of the Social (Administration) Act 1999. Mrs Fokas further submitted that the ARO was wrong in her letter (T23) to say that Widow B Pensions no longer existed because this simply is not true.
Mrs Fokas referred the Tribunal to section 33 of the Administrative Appeals Tribunal Act 1975 which states that the rules of evidence do not apply at the Tribunal. The Tribunal can inform itself on any matter. Mrs Fokas submitted that she had given evidence and provided logical arguments supporting the fact that she is qualified for a Widow B Pension. The fact that the Tribunal is not bound by the rules of evidence, does not mean that the Tribunal can ignore these rules or her evidence, Mrs Fokas submitted
In an attempt to assist Mrs Fokas, the Respondent investigated whether or not Mrs Fokas' earlier claims for Jobsearch Allowance, Sickness Allowance and Austudy might have been possibly more appropriately considered as applications for a Class B Widow Pension. Mrs Fokas objected to this course of investigation, reiterating that she was not ready for a Class B Widow Pension in earlier times and asserting that her initial and only claim for Widow B Pension was that made on 13 November 2000, when she was ready and suited to that type of pension.
In Mrs Fokas' final submission, she noted that subsection 366(2) of the Act had been repealed by Act No. 192 of 1999, "by section 3, Schedule 1(43) to be substituted by a new section 364" as referred to in T18. Mrs Fokas reiterated that it was ludicrous for the Respondent to refer to her possible qualification for Widow B Pension under section 362A and subsection 366(2) because of the type of claim she made after her son turned 16 in 1992 and before her initial and only claim for Widow B Pension made on 13 November 2001.
Mrs Fokas submitted that she had not made any other claims for Widow B Pension apart from that made on 13 November 2000. She had also never made a claim for Widow Allowance, despite being given that claim form by the Department. Mrs Fokas stated that she had always wanted to claim a Widow B Pension but had been prevented by the Department which had given her the wrong form.
Mrs Fokas further contended that she never claimed a Jobsearch Allowance on 13 August 1992. This claim form was not completed and written by her, although she did sign the claim form. Mrs Fokas stated that she could not have come to the Department the day after she was last paid her Sole Parent Pension to fill in the Application for a Jobsearch Allowance. It is also ludicrous, Mrs Fokas submitted, that in any event, a Jobsearch Allowance Claim could be considered a claim for Widow B Pension. Mrs Fokas strongly submitted that in 1992 she was not attempting to obtain a Widow B Pension because she was not in the situation then that she is in now. Therefore, the Application of subsection 362A(2) and 366(2)of the Act has to be tested at the time she made the initial claim which was on 13 November 2000. Mrs Fokas reiterated that the Social Security (Administration) Act 1999, No. 191 of 1999, Part 4 as described in Exhibit A15, commenced on 20 March 2000 and that this was before the SSAT decision. The Respondent is therefore not able to use repealed law, Mrs Fokas submitted.
Mrs Fokas concluded that after going through all the relevant legislation, she is qualified for Widow B Pension as at 13 November 2000 and that she qualifies in one of three alternate ways under subsection 362(1)(a).
Mrs Fokas wished to reiterate previous submissions and specifically, referring to subsection 362(1) of the Act, Mrs Fokas contended that she is required by the current legislation to refer to the 1947 Act in relation to qualification for Widow B Pension. Subsections 59(1) and 60(1) of the 1947 Act (which was amended by the Social Security and Veterans' Entitlements Amendment Act No 88, 1997, which came into force on 5 June 1987) required that immediately before 1 July 1987, Mrs Fokas would have to have been in receipt of a Widow's Pension and to have been a former Class B Widow. Mrs Fokas submitted that the words "Widow's Pension" are wide and cover her situation. Mrs Fokas contended that she was in receipt of a Widow's Pension as noted in the Departmental letter to her of 28 June 1982, which stated that she was in receipt of a Widow's Pension and that her rate was to be reduced (Exhibit A14). Mrs Fokas submitted that she is a widow, that is, not having a husband, and she does not have dependent children and that immediately before 1 July 1987, she was in receipt of a Widow's Pension. Mrs Fokas submitted that the Act does not specify what type of Widow's Pension and accordingly, she was in receipt of a Widow's Pension.
Mrs Fokas then submitted that she was a former Class B Widow because she did not have the care and control of any children. She was a former Class B Widow from the time her son was no longer in her custody when he turned 16 in August 1992. At that time, Mrs Fokas ceased receiving a Sole Parent Pension and according to her understanding of the Act, she was a widow and a former Class B Widow. The argument is therefore that Mrs Fokas was a Class B Widow from the time her son turned 16 until a claim was made for Jobsearch Allowance. When Mrs Fokas was granted Jobsearch Allowance, on Mrs Fokas' submission, she became a former Class B Widow. Therefore, in Mrs Fokas' submission, she complied with the requirements of subsection 362(1)(a)(i) of the Act. Mrs Fokas submitted that until she received Jobsearch Allowance, she was a Class B Widow. When she was granted Jobsearch Allowance, she became a former Class B Widow and fully complied with the requirements of the Act for qualification for a Widow B Pension from the time of her claim of 13 November 2000.
Mrs Fokas reiterated that she did not make a claim for Widow B Pension until 13 November 2000 because it was not until that point that she was ready. She had also been stressed by health problems. Mrs Fokas believed that God was on her side in her not making her claim until 2000, because the law was amended to her advantage. Mrs Fokas submitted therefore, that "the Law" is on her side, whatever the Respondent might say.
In summary, Mrs Fokas referred the Tribunal to the Social Security Legislation Amendment Act, No 84 of 1996 which indicated amendments to faze out the Widow B Pension by excluding claims on or after 20 March 1997. Having referred the Tribunal to this, Mrs Fokas then submitted that she qualifies for a Widow B Pension because she is;
"A widow who does not have a dependent child and who;
Immediately before 1 July 1987 was in receipt of a Widow's Pension and having been in receipt of a Widow's Pension and after ceased to receive any Pension by reason of the fact that she no longer had the custody, care and control of any children, she became a Class B Widow and by searching for a job she became a former Class B Widow…" (Exhibit A16)Mrs Fokas concluded that she had provided the Tribunal with evidence supporting her contentions. The areas of dispute between herself and the Respondent had been identified. She noted that a rationale for the rules of evidence is that decisions should be reached on the best evidence available. The evidence she provided was logical and relevant to the issues before the Tribunal. The fact that the Tribunal was not bound by the rules of evidence did not mean that it could ignore evidence. (Exhibit A16).
Respondent's SubmissionsThe Tribunal heard submissions by Ms Gotee and Mr Kenny for the Respondent. At hearing, the Respondent submitted that when Mrs Fokas made her claim for Widow's Pension, the reason that she was not given a Widow B Pension Claim is because there are no new Widow B claims being granted. Mr Kenny acknowledged that the ARO's statement that Class Widow B Pensions do not exist any more is not quite accurate. It would have been more correct for the ARO to write that there were no more Widow B Pensions granted after 20 March 1997.
The Respondent contended that Mrs Fokas does not qualify for a Widow B Pension or Widow Allowance under the current law at the time she made her claim on 13 November 2000. Under the provisions of subsection 362A(1)(a) of the Act, Mrs Fokas did not lodge her claim for Widow B Pension before 20 March 1997. Also, Mrs Fokas relies on subsection 362A(2) of the Act which refers to subsection 366(2) of the Act, and as Mrs Fokas noted this section has been repealed. Section 366 needs to be considered and the provisions of subsection 366(2) requires that on the day a person makes a claim, she must be qualified for Widow B Pension. The Respondent submitted that on 13 November 2000, Mrs Fokas was not qualified for a Class B Widow Pension. She still had to satisfy subsection 362(1) of the Act.
Ms Gotee submitted that considering the relevant legislation, Mrs Fokas was not, immediately before 1 July 1987 receiving a Widow's Pension as a Class B Widow. Therefore she did not satisfy subsection 362(1)(a)(i) of the Act. Further, Mrs Fokas did not satisfy subsection 362(1)(a)(ii) because she had not turned 45 on 1 July 1987 since she was in fact 40 years of age.
Mr Kenny submitted that while Mrs Fokas had berated the Respondent for using repealed legislation, so had she. In this regard, Mr Kenny noted that Mrs Fokas' starting point was section 59 and section 60 of the 1947 Act from the consolidation of the 1947 Social Security Act. Mr Kenny submitted that in the 1980s until 1989, with amendments, Widow A pensions had persisted. At that time, Mrs Fokas had the custody care and control of the children. Mrs Fokas is herself trying to apply repealed 1987 law to her situation in 1992, when she is claiming to be a former Class B Widow. Mr Kenny contended that Mrs Fokas has never been a Class B Widow and never been a former Class B Widow in terms of the Social Security legislation. He further contended that a person would never become a Class B Widow until they had been a widow who had been in receipt of a Class B Widow Pension and who then ceased to have qualification for that pension. By the time Mrs Fokas ceased having the care and control of her children, the Social Security legislation was no longer in the form in which she had been quoting. Mr Kenny submitted that by the time Mrs Fokas ceased to have a qualifying child in August 1992, the form of words that she has been quoting had been amended and this was the form as noted in Exhibit R4. Therefore, Mr Kenny submitted that the provision under which Mrs Fokas could be first tested as a possible Class B Widow was not the 1987 legislation that she had been quoting. Further, Mr Kenny noted that Mrs Fokas would never have qualified under the 1987 version in any case because she was not at any stage after 1 July 1987, a former Class B Widow. Mr Kenny concluded on this point that the law changed on 1 July 1987. The current law does not send one back to that time as asserted by Mrs Fokas. Mr Kenny submitted that when the law changed on 1 July 1987, Mrs Fokas was still a Class A Widow because she had custody, care and control of one child in fact, until 1992. In passing, Mr Kenny noted that there were a number of legislative changes in 1987. Not only were sections 59 and 60 of the 1947 Act amended, but almost immediately afterwards, the Act was renumbered and the relevant qualification criteria for Widow's Pension became section 44. The situation changed again in the amending Act, No. 33 of 1998, which from March 1989 turned all Class A widows into Sole Parent Pensioners.
Mr Kenny submitted that under the law, Mrs Fokas would only ever be a Class A Widow or a Sole Parent Pensioner. What is of fundamental importance, Mr Kenny contended, is that a claim made in the year 2000 had to be determined in accordance with the law which stands at that time of the claim, not the law 23 years earlier. The only relevance of the old law is to determine whether immediately before 1 July 1987, Mrs Fokas was receiving a Widow's Pension as a Class B Widow under the 1947 Act. It is clear, Mr Kenny submitted, when one does this exercise, that Mrs Fokas was a Class A Widow because she had the custody, care and control of the children.
Turning to section 366, Mr Kenny noted that the SSAT looked at Mrs Fokas' 1995 claim for Jobsearch Allowance to ascertain if this could be considered to be a Widow B Application. Exhibit A10 indicates continuity of payment from December 1995 to the present. It is therefore relevant, Mr Kenny submitted, to consider what Mrs Fokas' qualification for Widow B Pension was in 1995 or earlier when she claimed Jobsearch Allowance. The Tribunal allowed an adjournment for the Respondent to explore this matter. Although Mrs Fokas stated that in 1995 she did not feel like she needed or wanted a Widow B Pension, the Tribunal thought this issue should be explored.
The Respondent tested the application of subsections 362A(2) and 366(2) of the Act to each of Mrs Fokas' claims between cessation of her Sole Parent Pension in August 1992 and her eventual claim on 13 November 2000. Mr Kenny noted that by the time Mrs Fokas made her claim, section 366 had been repealed and replaced by section15 of the Social Security (Administration) Act 1999.
On 15 August 1992, Mrs Fokas' youngest child turned 16. At that point, Mrs Fokas ceased to qualify for a Sole Parent Pension. Mrs Fokas claimed Jobsearch Allowance on 13 August 1992. Had Mrs Fokas attempted to claim Widow B Pension at that point, she would have had to have applied the legislation as set out in Exhibit R4, p1. Mr Kenny submitted that at that time in 1992, to qualify for Widow B Pension, subsection 362(1)(a) as it stood at the time, mandatorily required that for a claimant to qualify for a Widow B Pension, this could be done in one of three alternate ways. Mr Kenny submitted that Mrs Fokas failed to satisfy any of these requirements. In this regard, it was submitted that Mrs Fokas could not qualify under subsection 362(1)(a)(i) because, immediately before 1 July 1987, she was not receiving a Widow's Pension as a Class B Widow under the 1947 Act. Rather, Mrs Fokas was receiving a Class A Widow's Pension. Further, Mr Kenny submitted that Mrs Fokas could not qualify under subsection 362(1)(a)(ii) because she had not, on 1 July 1987, turned 45 years old. Rather, she was only 40 years old having been born on 12 December 1946. Thirdly, Mrs Fokas could not qualify under subsection 362(1)(a)(iii) because she had not, on 1 July 1987, turned 50 years old. Rather she was only 40 years old. Accordingly, Mr Kenny submitted that the initial claim for Jobsearch Allowance in 1992 would not enable her to establish an entitlement in November 2000 to a grant of Widow B Pension from a provisional commencement date in August 1992, because she cannot satisfy the mandatory requirement in subsection 362(2)(b) that she qualified for a Widow B Pension on the day she made her initial claim.
In relation to Mrs Fokas Sickness Allowance claim made on 7 December 1993, subsection 362(1)(a) still required that she was immediately before 1 July 1987 receiving a Widows' Pension as a Class B Widow Pension under the 1947 Act, or that on 1 July 1987, she had turned 45 years old and was either receiving a Supporting Parent's Benefit or a Class A Widow Pension after 1 March 1989; or on 1 July 1987, had turned 50 years old. Given the qualification requirements, the initial 1993 claim for Sickness Allowance would not enable Mrs Fokas to establish an entitlement in November 2000 to a grant of Widow B Pension from an earlier provisional commencement date, because Mrs Fokas could not satisfy the mandatory requirement of subsection 362(2)(b) that she qualified for a Widow B Pension on the day she made her initial claim.
Mrs Fokas made a further Jobsearch Allowance claim on 9 February 1994. Subsection 362(1)(a) of the Act was in the same form as when the Sickness Allowance claim was made. Mrs Fokas was not able to establish qualification for a Widow B Pension from the earlier 1994 Jobsearch claim. Mr Kenny further submitted that after a period of about five months during which Mrs Fokas received Austudy, she then made a further Jobsearch Allowance claim on 29 December 1995. Mrs Fokas still had to satisfy subsection 362(1)(a) as it then stood. Mr Kenny submitted that the claims for Austudy and Jobsearch Allowance would not enable her to establish in November 2000 an entitlement to a grant of a Widow B Pension from provisional commencement dates in June /July or December 1995 because she cannot satisfy the mandatory requirements in subsection 362(2)(b) of the Act. Mr Kenny concluded therefore that in relation to these earlier claims for Social Security benefits, subsection 362(1)(a) is, and always has been, an insuperable barrier to Mrs Fokas' aspirations to be granted a Window B Pension. Mr Kenny submitted that the legislation has not materially changed throughout the period of her claims. Mrs Fokas does not satisfy the legislative requirements as essentially at the relevant times, she has been five years too young. Accordingly, at no time when she had made claims for Jobsearch Allowance, Sickness Allowance or Widow B Pension did she ever satisfy the legislative requirements. Further, subsection 15(2)(b) of the Social Security (Administration) Act 1999 provided another obstacle to Mrs Fokas claim for a Widow B Pension.
Turning specifically to Mrs Fokas' 13 November 2000 claim, Mr Kenny submitted that she must satisfy the law at that time under section 362 of the Act. Specifically, under subsection 362(1)(a) of the Act, Mrs Fokas would have to immediately before 1 July 1987 be receiving a Class B Widow Pension. Mr Kenny agreed that Mrs Fokas was receiving a Widow's Pension but it was as a Class A Widow because she had dependent children at that stage. Under the second possibility contained in subsection 362(1)(a)(ii), Mrs Fokas would have had, on 1 July 1987, to have turned 45 years of age. She was in fact at that time only 40. Under subsection 362(1)(a)(iii), Mrs Fokas would have had, as at 1 July 1987, to have turned 50 years old but she was only 40 years old.
A further problem in relation to Mrs Fokas' qualification for Widow B Pension is that there was no claim made before 20 March 1997 as is required under subsection 362A(1)(a) of the Act. Mr Kenny submitted that if the 20 March 1997 deadline were Mrs Fokas' only problem, then it would have made some sense to look at earlier claims to see if any of them were inappropriate. However, by the time she made her claim in November 2000, the incorrect claim provision contained within subsection 366 had become section 15 under the Social Security (Administration) Act 1999. Considering subsection15(1), a person must essentially have made two claims, Mr Kenny submitted. There must have been a claim for a social security payment that was considered the incorrect claim and then subsequently, a correct claim.
Mr Kenny concluded that Mrs Fokas has always not been of sufficient age on 1 July 1987, nor on that date was she a Class B Widow Pensioner. Mrs Fokas could never qualify because the qualification provisions have been essentially the same all along.
In terms of Mrs Fokas' assertion that she was a former Class B Widow and had received that pension between August 1992 and 11 September 1992, Mr Kenny submitted that the Department had acted to ensure Mrs Fokas' continuity of payment after her son turned 16 years old. In this regard, he noted that there was a pension payment day on 13 August 1992 and the Department did not want Mrs Fokas to miss out on her payment. The only way it was possible to ensure she had continuity was to date the Jobsearch Allowance claim from the 14 August 1992. That way, there was a continuation of the same fortnightly cycle of payments. It is Mr Kenny's submission that the regional Departmental Office had done something to assist the continuity of payment even if the claim was made later. It was clear, Mr Kenny submitted, that Mrs Fokas was not in receipt of a Widow B Pension and was therefore not at a later date, a former Widow B Pensioner as Mrs Fokas had asserted.
Mr Kenny strongly stated that contrary to Mrs Fokas' fears, at no time had the Department thought of Mrs Fokas as a "Bludger". Rather, Mr Kenny submitted that it was clear that Mrs Fokas was a "mature, middle aged lady".
FINDINGS
(A) Stay ApplicationIn relation to Mrs Fokas' application for a stay under subsection 41(2) of the Administrative Appeals Tribunal Act 1975, the decision Mrs Fokas wishes to stay is that of the SSAT, which affirmed the original decision not to grant a Widow B Pension or a Widow's Allowance.
Mrs Fokas requested a stay for a number of reasons including because she saw this as a means of preserving her right to appeal to the Federal Court in the event of the Tribunal's not agreeing with her submissions that she is qualified for a Widow B Pension.
Subsection 41(2) of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to stay a decision if it is considered to be in the interests of securing the effectiveness of the hearing. The difficulty is that the decision Mrs Fokas asked to be stayed is a decision that she is not qualified for a Widow B Pension. It is not a matter of there being an underlying favourable decision that she is eligible for a Widow B Pension. Mrs Fokas also did not satisfy sections 362 or 362A of the Act because she had not turned 45 on 1 July 1987 since she was in fact 40 years of age.
In all the circumstances, the Tribunal agrees with the Respondent's submissions on this matter and concludes that there is no merit in Mrs Fokas' request for a stay being granted. Therefore, the Tribunal determines, pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 that Mrs Fokas' request for a stay is not granted
(B) Widow B Pension and Widow AllowanceThe Tribunal has reached a decision in these matters, taking into account the oral and documentary evidence and the legislation.
Mrs Fokas submitted that on 13 November 2000, she wished to make a claim for a Class B Widow Pension but was prevented from doing so because Centrelink gave her the wrong claim form.
Mrs Fokas submits that she is qualified for a Widow B Pension, having at hearing and in documents provided to the Tribunal, traced her qualification for this pension. Mrs Fokas stated at hearing and as confirmed in her documents, that she does not want a Widow Allowance and accepts that she is not qualified.
For completeness, the Tribunal notes that subsection 408BA(2) deals with qualification for a Widow Allowance. Considering the qualifications, the Tribunal notes that Mrs Fokas was not separated or divorced from her husband since turning 40. She in fact received a decree nisi on 6 August 1979 and at that stage she was 32 years old. Therefore, considering section 408BA of the Act, Mrs Fokas is not qualified for a Widow Allowance under the qualification criteria.
Turning to the issue of Class B Widow Pension, Mrs Fokas asserts that she is qualified. Her submission is that the legislation is written in such a way that anyone can give any interpretation. Mrs Fokas' contention is that she is a migrant and did not initially know or understand what was going on. In addition, Mrs Fokas did not feel ready to have a Class B Widow Pension until the claim she made on 13 November 2000. At that time, she no longer wished to be lodging Newstart Allowance Continuation forms every three months. She did not like the stigma of being unemployed and strongly disagreed with the Respondent's suggestion that she might apply for a Disability Support Pension or Sickness Allowance.
Mrs Fokas submitted that as at 13 November 2000, she is qualified for a Widow B Pension because she is a widow who does not have a dependent child and on her submission, immediately before 1 July 1987, was in receipt of a Widow's Pension as supported by Exhibit A14. Mrs Fokas submitted that it did not matter that she was in receipt of a Widow A Pension as the legislation refers only to receiving a Widow's Pension. Mrs Fokas was also on a Supporting Parent Pension from 1 March 1989 until 15 August 1992. When she ceased to receive the Supporting Parent Pension, she no longer had the care and control of any children. At that point, Mrs Fokas' assertion is that she became a Class B Widow. When Mrs Fokas then received Jobsearch Allowance in September 1992, she asserts that she became a former Class B Widow. Mrs Fokas traces her qualification for Widow B Pension through subsection 362(1) of the Act and sections 59 and 60 of the 1947 Act.
As at 13 November 2000, the legislation governing the qualification for Widow B Pension is section 362. Subsection 362(1)(a) of the Act allows qualification for a Widow's B Pension in a number of ways, including if the woman was immediately before 1 July 1987 receiving a Widow's Pension as a Class B Widow under the 1947 Act or on 1 July 1987, was 45 years old. Immediately before 1 July 1987, the Tribunal finds that Mrs Fokas was not receiving a Widow's Pension as a Class B Widow under the 1947 Act. There is nothing Mrs Fokas can do to eliminate the fact that before 1987 she was not receiving a Class B Widows Pension. At that time, Mrs Fokas still had the care, control and custody of at least one of her children until in fact, 1992. Further, on 1 July 1987, Mrs Fokas had not turned 45 years old. Therefore, as at 13 November 2000, the date of Mrs Fokas' claim, she does not meet subsection 362(1)(a)(i) or (ii) of the Act. Mrs Fokas also does not meet subsection 362(1)(a)(iii) of the Act as on 1 July 1987, she had not turned 50 years old.
In relation to subsection 362A(1) of the Act, this requires that no Widow B Pension must be granted unless the woman had lodged her claim for pension before 20 March 1997 and further, that the woman is qualified for the Widow B Pension before 20 March 1997. In this regard, Mrs Fokas did not lodge her claim for Widow B Pension before 20 March 1997. An attempt to assist Mrs Fokas in her quest for Widow B Pension was made by the Respondent in investigating whether or not previous claims from 1992 through to 1995 for Jobsearch Allowance, Austudy and Sickness Allowance might be considered as claims for Widow B Pension as allowed under subsections 362A(2) and 366(2) of the Act. Unfortunately, tracing the possibility of qualification through this process was not successful. The possibility of qualification which might have arisen out of these earlier applications therefore did not assist Mrs Fokas. The legislation at the time, as set out in Exhibit R4, and also noting the repeal of section 366 and application of section 15 of the Social Security (Administration) Act 1999, did not assist Mrs Fokas. Mrs Fokas was not happy with the Tribunal's approach in attempting to explore her possible qualification for Widow B Pension at an earlier time, although the Tribunal felt bound to test every possible option in terms of reaching a determination about Mrs Fokas' qualification for Widow B Pension.
The Tribunal is satisfied all options have been explored in relation to any possible qualification that Mrs Fokas might have for a Widow B Pension. The legislation is complex and as Mrs Fokas has noted, there have been changes to legislation over time. The legislative amendments in this case do not exclude Mrs Fokas from the requirement that she meets the legislative provisions in existence at the time of her claim namely, sections 362A and 362 of the Act.
Accordingly, for all the reasons set out above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that as at 13 November 2000 and at other times when Mrs Fokas made claims for Jobsearch Allowance, Sickness Allowance and Austudy, she did not and does not satisfy the legislative requirements for qualification for a Widow B Pension. Mrs Fokas also does not qualify for Widow Allowance. In such circumstances the decision under review is affirmed.
.I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 25 June 2001 and 6 August 2001
Date of Decision 12 December 2001
Representative for the Applicant Self-RepresentedRepresentatives for the Respondent Ms D Gotee and Mr J Kenny, Departmental Advocates
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