Formosa and Secretary Department of Family and Community Services - [2002] AATA 303

DECISION AND REASONS FOR DECISION [2002] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL )

No N2001/627

GENERAL ADMINISTRATIVE DIVISION   )
           Re      MELITA FORMOSA
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date3 May 2002
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal dated 4 May 2001, which affirmed the decision of the Authorised Review Officer of the Secretary, Department of Family and Community Services of 4 December 2000 not to increase the aged persons savings bonus paid to Mrs Melita Formosa, the Applicant in these proceedings, (to more than $174), and not to take into account Mr Formosa's pension from Malta in the calculation of Mrs Formosa's aged persons savings bonus. The Authorised Review Officer of the Secretary, Department of Family and Community Services had in turn affirmed the decision of the delegate of the Secretary, Department of Family and Community Services of 27 October 2000.
  ..............................................
  Ms G Ettinger – Senior Member
CATCHWORDS
Aged Persons Savings Bonus - Applicant's entitlements - whether pension from Malta for married couple paid to Applicant's husband can be split and be considered "income" to the wife for purposes of Aged Persons Savings Bonus – decision of Respondent and SSAT affirmed
LEGISLATION
A New Tax System (Bonuses for Older Australians) Act 1999 ss 3(1)(a), 5, 6, 12(1), 16
Social Security Act 1991 ss 8(1), 8(2), 8(8), 10
CASE LAW
Re Davies v Secretary, Department of Social Security (1997) 2 (9) SSR 123
Dellis v Secretary Department of Social Security (1990) 21 ALD 252
Re Secretary, Department of Family and Community Services v Maddison (2001) 4 (12) SSR 143
Young v Secretary, Department of Social Security (1991) 62 SSR 859

REASONS FOR DECISION

3 May 2002 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Social Security Appeals Tribunal ("SSAT"), dated 4 May 2001 (T2), which affirmed the decision made by an Authorised Review Officer ("ARO") on 4 December 2000, (T16) not to increase the aged persons savings bonus paid to Mrs Melita Formosa, the Applicant in these proceedings, to more than $174. The decision of the ARO had in turn affirmed the decision of the delegate of the Secretary, Department of Family and Community Services ("the Respondent Department") made on 27 October 2000 (T12).
Mrs Formosa was represented at the hearing before the Tribunal by her husband Mr Eric Formosa. Mr Formosa and their daughter Mrs Claire Macelli gave oral evidence before the Tribunal. Mr Formosa told me that his wife was ill and could not attend in person, but she was content to give her evidence over the telephone. Mr J Kenny, who was the representative for the Respondent, did not object to that course of action, and I agreed to it.
ISSUE BEFORE THE TRIBUNAL
The issue for the Tribunal was to decide whether Mrs Formosa received any income which could be taken into account in calculation of her aged persons savings bonus pursuant to the A New Tax System (Bonuses for Older Australians) Act 1999 beyond that accepted by the Respondent Department.
LEGISLATIVE CONTEXT
The relevant legislation in this matter was the Social Security Act 1991, in particular sections 8(1), 8(2), 8(8), and 10 which have been inserted further on in these Reasons for Decision, as appropriate.
Further relevant legislation was A New Tax System (Bonuses for Older Australians) Act 1999, in particular sections 3(1)(a), 5, 6, 12(1) and 16 which have been discussed in these Reasons for Decision as appropriate.
BACKGROUND
There was no disagreement that Mrs Formosa had claimed the aged persons savings bonus introduced under an A New Tax System (Bonuses for Older Australians) Act 1999, and that her entitlement had been calculated as $2 at 30 June 2000 (T5). Mr Eric Formosa, her husband, received the maximum, a $1,000 bonus (T21). The disparity reflected Mr Formosa's assessed foreign pension income of $3,458.71 (T6), which was in excess of the $1,000 required to attain the maximum savings bonus.
Mrs Formosa sought a review of the decision in relation to the bonus, claiming that the invalidity pension received by her husband from Malta was at the married rate and that she was entitled to half that pension, and had indeed been sharing it equally since Mr Formosa commenced receiving it in 1992.
After a review of savings records, Mrs Formosa's total savings bonus was recalculated to be $174 (being 5.5% of the $3,177 shown at T21). This decision was appealed to the SSAT which affirmed the Secretary's decisions.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals TribunalAct 1975, ("the T-documents"), as Exhibit R1, and the Respondent's Statement of Facts and Contentions as Exhibit R2.
evidence of mr formosa
Mr Formosa gave evidence first at the Tribunal, followed by his daughter, Mrs Claire Macelli, and then his wife, who gave evidence by telephone link. Mr Formosa told me that he had been receiving an Australian pension since 1973, and a regular pension payment from Malta since 23 May 1992.
Mr Formosa said that the pension from Malta was paid to him at the married rate in Australian dollars for use by him and his wife, and that he gave her half the amount on each occasion after he withdrew it from the bank. He said that this would continue for the whole of his lifetime, and that if he died, Mrs Formosa would become eligible for a widow's pension. He also emphasised that if Mrs Formosa predeceased him, the pension he received would revert to the single rate. To emphasise this point, Mr Formosa referred me to various pieces of correspondence, and referred to the fact that he made an annual Statutory Declaration to that effect to the Department of Social Security in Malta. Mrs Formosa had also made a Statutory Declaration declaring that she shared the pension from Malta with her husband (T9/48), and a letter from the Department for Social Security of Malta dated 4 January 2001 was at T18/62.
In reply to cross-examination by Mr Kenny, Mr Formosa informed me that the pension from Malta was paid into his bank account and that he and Mrs Formosa did not operate a joint bank account. Mr Formosa said several times that the Constitution in Malta did not allow a pension to be paid separately to his wife, but that there was a moral and legal obligation for him to give her half because he was being paid at the married rate. He said that he shared the pension with her at all times.
When asked by Mr Kenny, Mr Formosa was unable to give any expert evidence regarding the Maltese Constitution.
However, I accepted from Mr Formosa's evidence that pensions such as his were in fact paid at the married rate to the husband directly, and not to his wife, noting that in the past similar procedures had prevailed in the case of married couples and joint pension payments in Australia.
evidence of the applicant – mrs melita formosa
Mrs Formosa, who listed some of her illnesses such as arthritis, diabetes, emphysema, leukaemia and back problems causing her difficulties with walking, gave evidence by telephone from her daughter's residence where she now stays. She corroborated Mr Formosa's evidence that they shared the pension, and told me that she sometimes went to the bank with him to get it. She said: "Eric keeps his share and I get half." She emphasised that receiving her share occurred on each occasion when the pension was paid, once every four weeks.
In reply to Mr Kenny, Mrs Formosa said that she had asked in Malta whether she could receive her share of the pension separately, but had been told that that was not possible. She said however that she was entitled to half of what Mr Formosa received, and if he did not give it to her, then she could take him to court.
evidence of mrs claire macelli – the applicant's daughter
Mrs Macelli gave oral evidence before the Tribunal. She emphasised that she wanted to confirm that she had been a witness to how her father shared his pension equally with her mother on each occasion that he received it.
SUBMISSIONS AND CONCLUSIONS
I had to take into account all the evidence, submissions, legislation and case law to make the correct and preferable decision regarding whether Mrs Formosa was entitled to further payment of aged persons savings bonus pursuant to A New Tax System (Bonuses for Older Australians) Act 1999. To do so, I had to consider whether Mrs Formosa had received any income which could be taken into account in calculation of that entitlement beyond that accepted by the Respondent.
I wish to first put on record that I found Mr and Mrs Formosa and their daughter Mrs Claire Macelli to be witnesses of truth.
I noted that Mrs Formosa was first assessed as being eligible for a $2 bonus payment in a letter of the Respondent to her of 20 October 2000 (T5). On the same day, a letter was sent to Mr Formosa informing him of his $1,000 eligibility (T6). After an appeal by Mrs Formosa dated 5 October 2000 (T10), and the provision of further information by Mrs Formosa, the Authorised Review Officer wrote to her on 4 December 2000, (T16), increasing her pension bonus to $174, and stating as follows:
"Payment of the savings bonus is worked out in accordance with moneys directly received as a persons annual retirement income.
Any income initially received by your husband in his own right from the Maltese Government and then given to you does not qualify as your retirement income."
Mrs Formosa appealed the decision of the Authorised Review Officer to the SSAT. I was mindful that the SSAT characterised the income Mrs Formosa receives from her husband's Maltese social security payment as "maintenance income", and therefore found that it was could not be taken into account in calculating her annual retirement income or her annual savings and investment income. The SSAT at paragraph 41, stated as follows:
"Accordingly, while the Tribunal accepts that Mrs Formosa receives income from her husband, as maintenance income it is excluded from the definition of ordinary income under the Social Security Act and under A New Tax System (Bonuses for Older Australians) Act 1999. The qualifications in section 5(3) of the bonuses law do not affect this conclusion. This means that these payments are not to be taken into account in calculating Mrs Formosa's annual retirement income or her annual savings and investment income."
I moved then to consider the Applicant's submissions made on her behalf by Mr Formosa. It was difficult to discern Mr and Mrs Formosa's submissions from their evidence as is often the case with unrepresented parties, but as there were no issues of credit, that was not a problem. Mr Formosa stated that the pension from Malta was paid to him at the married rate (T7), and I accepted that. He had been in touch with the Consul General for Malta in Sydney, and correspondence seeking to establish that half the amount paid to him belonged to Mrs Formosa, was before the Tribunal at T17 and T18.
I noted that the essence of the letter of the Consul General for Malta in Sydney to the Assistant Director, Department of Social Security in Malta (T17) was as follows:
"Mrs. Melita Formosa is being rejected for a thousand Dollar ($1000.00) bonus payment, which is paid by the Australian Government once only and which has to do with the Goods and Services Tax … because the Australian authorities are not convinced that Mrs . Formosa is receiving a Pension from Malta.
Can you write something to the effect that although the Pension cheque is issued in her husband's name, Mr. Eric Formosa, half of the amount on the cheque pertains to Mrs. Formosa. …"
In reply, at T18, was a copy of a letter from the F/Director (Social Security) of the Department for Social Security in Malta addressed as follows:
"To whom it may concern
This is to certify that Mr. Eric Formosa of 12/234 Princes Hwy., Blakehurst 2221 N.S.W., is in receipt of a Maltese Social Security Pension at a Married rate of Lm20.356 weekly. If Mr. Formosa was entitled to for (sic) a pension at a single rate his entitlement would have been at Lm13.570 per week."
The letter from the Maltese Department of Social Security as quoted above, certified that Mr Formosa receives the pension at the married rate, but did not establish to my satisfaction that Mrs Formosa has any entitlement to half the Maltese pension in her own right, or that she has any beneficial interest in it from the point of view of the Government of Malta.
It was also Mr Formosa's submission which I accepted, that he had to make an annual declaration with regard to his pension, and to inform the Maltese Government of any changes in his address, banking arrangements or marital status. The document at T4 also stated that he had to inform the Government as follows:
"When anything happens which could affect your pension benefits such as:

… or the husband is no longer maintaining his wife …"

Mr Formosa said that he had an obligation to give his wife half the money and that she could report him to the Maltese Government if he did not do so. Mr Kenny told me that he accepted Mr and Mrs Formosa's evidence that Mr Formosa gave half of his pension from Malta to his wife, and I too was satisfied with their evidence in that regard. However I did not consider it material to my decision making in this case.
Mr Formosa also mentioned the Constitution of Malta in support of his argument but was not able to elucidate further on that. I have noted it simply as part of his submission and do not have any further information on any aspect of Maltese law, so I have decided not to comment on Mr Formosa's submission in that regard.
Mr Kenny in his closing submissions, referred to the Respondent's Statement of Facts and Contentions (Exhibit R2), submitting in summary, that pursuant to sections 8(1) and 10(1) of the Social Security Act 1991, which follow as relevant, Mrs Formosa's share of the pension from Malta was received from her husband, and was therefore excluded from the calculation of "ordinary income" used to calculate her eligibility for the aged persons savings bonus. He emphasised that Mrs Formosa received the payment from her husband as "maintenance income", and that it was technically Mr Formosa's income. Mr Kenny submitted that the Respondent accepted that Mrs Formosa received the payment from her husband, but submitted that she had no legal right to the money and was dependent on her husband's generosity. She would not have a legal right to a pension from Malta unless Mr Formosa died, he submitted. Mr Kenny compared the situation with how social security had been administered in Australia in earlier times.
I have also noted the following points made in the Respondent's Statement of Facts and Contentions which were in evidence in full before me as Exhibit R2 and accept them:

To obtain a savings bonus of "up to $1,000" (section 3(1)(a) of A New Tax System (Bonuses for Older Australians) Act 1999), an individual aged 60 or older had to have savings and investment income in 1998/99 or 1999/2000 (section 12(1) of A New Tax System (Bonuses for Older Australians) Act 1999). Mrs Formosa's eligibility for a bonus is not in issue. As relevant section 3 of the Act follows:
"(1) This Act provides for a one-off tax free bonus payment to be made to individuals. The bonus payment generally consists of 2 components:
(a) an aged persons savings bonus of up to $1,000; and
(b) …
(2) The basic qualifications for the aged persons savings bonus are:
(a) an individual is aged 60 or more, and is an Australian resident, on 1 July 2000; and
(b) he or she has an income amount of less than $30,000, and a savings and investment income amount, for 1998-1999 or 1999-2000.
(3) …
(e) if the individual is 60 or more, his or her annual savings and investment income is more than $1,000.
(4) The bonus payment is reduced progressively for income amounts between $20,000 and $30,000.
(5) An individual has to claim the payment. A decision on whether an individual is qualified for a bonus payment will be made by the Secretary to the Department of Family and Community Services, the Repatriation Commission or the Commissioner of Taxation, depending on whose customer or client the individual is."
The amount of the aged persons savings bonus was the customer's "annual savings and investment income up to a maximum of $1,000 (section 16(2) of A New Tax System (Bonuses for Older Australians) Act 1999)";
"16 Amount of bonus payment
(1) ...
Aged persons savings bonus component
(2) The aged persons savings bonus component of a bonus payment is worked out in accordance with the following table:

Amount of aged persons savings bonus component
Item If the Family and Community Services customer's annual retirement income is: ...the amount of the aged persons savings bonus component is equal to:

$20,000 or less his or her annual savings and investment income, up to a maximum of $1,000
more than $20,000 but less than $30,000 (a) his or her annual savings and investment income, up to a maximum of $1,000; less (b) the phasing out fraction (see subsection (6)) of the amount worked out under paragraph (a) of this item

It was necessary to ascertain that part of the individual's annual retirement income, being "ordinary income on a yearly basis" which is attributable to savings and investments (sections 5(3), 5(4) and 6 of A New Tax System (Bonuses for Older Australians) Act 1999). I have noted that ordinary income is defined in the Social Security Act 1991, (that is money obtained periodically by way of gift or allowance, or earned, derived or received for the persons own use or benefit).

The calculation of the income was done as if the customer was not a member of a couple (section 5(3)(e) of A New Tax System (Bonuses for Older Australians) Act 1999); this meant husbands and wives or partners whose individual savings and investment incomes were different received different bonus amounts. Section 5 as relevant follows:
"5 Annual retirement income and annual savings and investment income - customers with previous calculation of ordinary income on a yearly basis
(1) This section applies to a Family and Community Services customer if, on one or more occasions in the period covered by the 2 qualifying years, the Secretary was required to work out the customer's ordinary income on a yearly basis for the purpose of determining the customer's entitlement to any payment under the Social Security Act 1991.
(2) If the Secretary was required to work out the amount on only one such occasion, the customer's annual retirement income and annual savings and investment income for the purposes of this Part are worked out in accordance with subsections (3) and (4).
(3) The customer's annual retirement income is the amount of the ordinary income on a yearly basis that would have been required to be worked out on the occasion if:
(a) any pension under PART - II or IV, or a payment by way of allowance under PART - VI, of the Veterans' Entitlements Act 1986 paid to the customer were disregarded; and
(b) any application of section 1171 of the Social Security Act 1991 were disregarded; and
(c) any payment under the Social Security Act 1991 , to the extent that it was not exempt from income tax under the Income Tax Assessment Act 1997 , were included in ordinary income; and
(d) any amount taken by DIVISION 1B of PART - 3 .10 of the Social Security Act 1991 to be ordinary income on a financial asset that is a deprived asset were disregarded; and
Note: Any actual return on the deprived asset is also disregarded: see subsection 1083(1) of the Social Security Act 1991.
(e) the customer were not a member of a couple.
(4) The customer's annual savings and investment income is worked out as follows:

Method statement Step 1. Work out under subsection (3) what would be the customer's annual retirement income if, in addition to making the assumptions in that subsection, it were assumed that the below threshold rate determined under subsection 1082(1) of the Social Security Act 1991 were the same as the above threshold rate determined under subsection 1082(2) of that Act. Step 2. Work out how much of the Step 1 amount is attributable to savings and investments. The result is the customer's annual savings and investment income .

(5) If the Secretary was required to work out the customer's ordinary income on a yearly basis on 2 or more occasions during the period covered by the 2 qualifying years, the customer's annual retirement income and annual savings and investment income for the purposes of this Part are worked out as follows:

Method statement Step 1. Apply subsections (3) and (4) to work out the 2 amounts for each of the occasions. Step 2. Work out for each occasion the amount of bonus payment to which the customer would be entitled on the basis of the 2 amounts. Step 3 .The customer's annual retirement income and annual savings and investment income are the 2 amounts for any occasion that results in the greatest bonus payment or, if the bonus payments for all of the occasions are the same, the 2 amounts for any occasion."

I noted that the SSAT held that the money Mrs Formosa received from her husband's Maltese pension was characterised as "maintenance income". I am mindful that the definition of "maintenance income" in section 10(1) of the Social Security Act 1991 is as relevant:
"maintenance agreement means a written agreement (whether made within or outside Australia) that provides for the maintenance of a person (whether or not it also makes provision in relation to other matters), and includes such an agreement that varies an earlier maintenance agreement.
maintenance income , in relation to a person, means:
(a) child maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the maintenance of a dependent child of the person and is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child; or
(b) partner maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the persons own maintenance and is received from the persons partner or former partner; or
(c) direct child maintenance—that is, the amount of a payment or the value of a benefit that is received by a dependent child of the person for the child's own maintenance and is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child;
but does not include disability expenses maintenance.
Note: see also subsection (3) and section 1116 (capitalised maintenance income).
non-cash housing maintenance,in relation to a person, means maintenance income of the person that is not cash maintenance and is received in relation to the provision of a residence that is, or is to be, the persons principal home.
Note: see also subsections (4) and (5) .
10(1A) For the purposes of subsection (1), an amount is a periodic amount if it is:
(a) the amount of one payment in a series of related payments, even if the payments are irregular in time and amount; or
(b) the amount of a payment making up for arrears in such a series."
In coming to a decision regarding whether the money Mrs Formosa receives from her husband's Maltese pension can be taken into account in calculating her entitlement to aged persons savings bonus, I had to take into account the legislation, noting that the "ordinary income" on a yearly basis referred to in section 5 of A New Tax System (Bonuses for Older Australians) Act 1999, is defined in section 8(1) of the Social Security Act 1991 as:
"ordinary income" means income that is not maintenance income or an exempt lump sum"
To calculate "ordinary income" for Mrs Formosa, I had first to consider what constitutes "income" for Mrs Formosa. I have noted that "income" pursuant to sections 8 and 10 of the Social Security Act 1991 is defined as follows:
"income, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the persons own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
Note 1: See also sections 1074 and 1075 (business income), sections 1076- 1084 (deemed income from financial assets), sections 1095 to 1099D (income from income streams), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income).
Note 2: where a person or a persons partner has disposed of income, the persons income may be taken to include the amount which has been disposed of—see sections 1106- 1112.
Note 3: income is equivalent to ordinary income plus maintenance income.
income amount means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not).
income from personal exertion means an income amount that is earned, derived or received by a person by way of payment for personal exertion by the person but does not include an income amount received as compensation for the persons inability to earn, derive or receive income through personal exertion.
ordinary income means income that is not maintenance income or an exempt lump sum.
Note 1: for maintenance income see subsection 10 (1).
Note 2: amounts received as a series of periodic compensation payments may result in reduction of the persons rate of social security pension or benefit under Part 3.14: if this happens the amounts are not counted as ordinary income (see section 1171).
Note 3: For provisions affecting the amount of a persons ordinary income see sections 1072 and 1073 (ordinary income concept), sections 1074 and 1075 (business income), sections 1076- 1084 (deemed income from financial assets) and sections 1095- 1099D (income from income streams).
Earned, derived or received
8(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a) an income amount earned, derived or received by any means; and
(b) an income amount earned, derived or received from any source (whether within or outside Australia)."
Having considered the above noted definitions, I was satisfied that the Maltese pension paid to Mr Formosa at the married rate is not, pursuant to the relevant legislation in Australia, income to Mrs Formosa. It is not income earned, derived or received by her for her own use and benefit (section 8(2) of the Social Security Act 1991. She does not have a legal entitlement to it. It is Mr Formosa's legal entitlement to receive it, and I accept that he shares it with her once he has withdrawn it from his account, and that he has a moral obligation to do so.
I have noted from Re Davies v Secretary, Department of Social Security (1997) 2 (9) SSR 123 and Dellis v Secretary Department of Social Security (1990) 21 ALD 252 that what constitutes "income" is an objective test and does not depend on the belief a person holds. Accordingly, the decision that the money Mrs Formosa receives from her husband is not income does not take into account the couple's intentions nor what they believe the payment to Mrs Formosa constitutes.
I considered whether the payment Mrs Formosa receives from her husband periodically (that is every time he is paid the pension from Malta), could be characterised as a gift from the Maltese Government, and rejected that proposition because there was no evidence before me that the Maltese Government was gifting anything to the Formosas.
I considered whether the money could be held to be an "ex gratia payment" or "maintenance income", noting that "maintenance income" is also excluded from the definition of "ordinary income". I could not find any evidence to convince me that the money Mrs Formosa receives from Mr Formosa is an "ex gratia payment" from the Maltese Government, because the Maltese Government is paying the total amount of the pension to Mr Formosa as a disability pension at the married rate, and not paying Mrs Formosa anything.
I noted that "maintenance income" is defined in section 10(1) of the Social Security Act 1991 to mean "child maintenance, partner maintenance" or "direct child maintenance". "Partner maintenance" is defined as:
"the amount of a payment or the value of a benefit that is received by the person for the persons own maintenance and is received from the persons partner or former partner."

This seemed to me to apply to Mrs Formosa's situation.

I noted that section 10(3) of the Social Security Act was also relevant. It follows:
"10 Maintenance income definitions
10(1) In this Act, unless the contrary intention appears:
capitalised maintenance income , in relation to a person, means maintenance income of the person:
(a) that is neither a periodic amount nor a benefit provided on a periodic basis; and
(b) the amount or value of which exceeds $1,500.
Note 1: see also section 1116 (apportionment of capitalised maintenance income).
Note 2: if maintenance income is caught by paragraphs (a) and (b) of the definition, the whole amount or value of the maintenance income is capitalised maintenance income, not just the part of the maintenance income that exceeds the $1,500 limit.
cash maintenance , in relation to a person, means maintenance income of the person that consists of the amount of a payment received by the person or by a dependent child of the person:
(a) that is a periodic amount; or
(b) that is an amount of $1,500 or less.
...
maintenance includes child support.
maintenance agreement means a written agreement (whether made within or outside Australia) that provides for the maintenance of a person (whether or not it also makes provision in relation to other matters), and includes such an agreement that varies an earlier maintenance agreement.
maintenance income , in relation to a person, means:
(a) ...
(b) partner maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the persons own maintenance and is received from the persons partner or former partner; or
(c)
...
10(3) ...
(b) ...
(c) a reference to a payment or benefit received from a person includes a reference to a payment or benefit received:
(i) directly or indirectly from the person; and
(ii) or of any assets of, under the control of, or held for the benefit of, the person; and
(iii) from the person under or as a result of a court order, a court registered or approved maintenance agreement or otherwise."
I noted that section 10(3)(c)(iii) of the Social Security Act 1991 does not limit "maintenance income" to payments pursuant to orders and agreements sanctioned by a court. I am mindful that there is in fact, in this case, no payment made pursuant to a court order or agreement.
I noted also Mr Kenny's reference to Re Secretary, Department of Family and Community Services v Maddison (2001) 4 (12) SSR 143, where Member Ms N Bell had held that for purposes of calculating aged persons savings bonus pursuant to section 5(3)(e) of A New Tax System (Bonuses for Older Australians) Act 1999, the legislation was clear in that Mrs Maddison was deemed not to be a member of a couple for the purposes of calculating her aged persons savings bonus. She was thus unable to have her aged persons bonus calculated taking into account half her husband's superannuation fund even though he was her husband of 45 years, and they jointly enjoyed the benefits of periodic withdrawals by him which were deposited into their joint savings account. I have noted by contrast to the Formosas, that in the case of the Maddisons there was a joint savings account, and even though it is not strictly relevant to my decision here, I am mindful that in Mrs and Mrs Formosa's case, the money was paid into Mr Formosa's account which he operated, then subsequently withdrew the money to give his wife.
I was mindful of the situation in Young v Secretary, Department of Social Security (1991) 62 SSR 859 where the Tribunal found that where a husband paid a percentage of his entitlements under superannuation to his wife pursuant to an agreement that he share with her what they had accumulated during their life together, the payment was characterised as "maintenance income", and could not be divided and taken into account separately. The situation in the case of the Formosas can be similarly characterised even though it is not superannuation in their case.
I am bound by section 5(3)(e) of A New Tax System (Bonuses for Older Australians) Act 1999, and find, agreeing with Member Bell in Maddison (supra), that the legislation is quite clear in section 5(3)(e) of A New Tax System (Bonuses for Older Australians) Act 1999. The result of that is that Mrs Formosa is deemed not to be a member of a couple for the purposes of calculating her aged persons savings bonus, and that her husband's pension cannot therefore be taken into account in calculating her entitlements.
Accordingly, I am bound to hold that the money Mrs Formosa receives from her husband as a result of him receiving the Maltese pension is "maintenance income" and excluded from the definition of "ordinary income" pursuant to the Social Security Act 1991 and A New Tax System (Bonuses for Older Australians) Act 1999. These periodical "maintenance payments" cannot therefore be taken into account in calculating Mrs Formosa's annual retirement income or her annual savings and investment income to calculate her entitlement to aged persons savings bonus. Accordingly her application must fail, and the decisions of the Respondent Department and the SSAT must be affirmed.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal dated 4 May 2001, which affirmed the decision of the Authorised Review Officer of the Secretary, Department of Family and Community Services of 4 December 2000 not to increase the aged persons savings bonus paid to Mrs Melita Formosa, the Applicant in these proceedings, (to more than $174), and not to take into account Mr Formosa's pension from Malta in the calculation of Mrs Formosa's aged persons savings bonus. The Authorised Review Officer of the Secretary, Department of Family and Community Services had in turn affirmed the decision of the delegate of the Secretary, Department of Family and Community Services of 27 October 2000.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         H. Sim           .....................................................................................
  Associate
Date of Hearing  17 January 2002
Date of Decision  3 May 2002
The Applicant  Represented by her husband, Mr E Formosa
Advocate for the Respondent Mr J Kenny