Fraccalvieri and Secretary, Department of Family and Community Se Rvices

[2003] AATA 503

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 503

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/105

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VINCENZO FRACCALVIERI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date30 May 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]   

Part-Time Member

CATCHWORDS

Social security – overseas age pension – Australian/Italian International Agreement – period of working life residence – decision under review affirmed.

Re Rose and Secretary, Department of Social Security (1989 17 ALD 615.

REASONS FOR DECISION

30 May 2003 Ms A F Cunningham (Part-time Member)          

1.      The applicant has sought the review of a decision made by a Centrelink officer and confirmed by an authorised review officer on 21 April 2001 granting him an age pension at a reduced rate.   The decision was subsequently affirmed by the Social Security Appeals Tribunal on 2 July 2002.

2. As the applicant resides in Italy and was unable to attend a Tribunal hearing, both parties consented to the Tribunal determining the appeal on the basis of the written material before it. This material comprises the T documents submitted pursuant to s37 of the Administrative Appeals Tribunal Act 1975, correspondence received from the applicant, translated into English and a statement of case for the respondent filed on 19 March 2003.

3.      The applicable legislation is the Social Security Act 1991 (“the Act”), in particular the sections relating to qualification for age pension and rate of payment.   The Tribunal was also referred to the provisions of the Social Security (International) Act 1989 and Schedule 2 Part A, which sets out the terms of the agreement between Australia and Italy.

4.      There was no dispute as to the following facts and the Tribunal accordingly finds:

(i)The applicant was born in Italy and resided in Australia from 28 October 1968 to 6 December 1980, a total period of 146 months.

(ii)Whilst he was still residing in Australia, the applicant became a widower on 9 August 1979.  He was granted supporting parent benefit which was paid upon his return to Italy until his youngest child turned 16.

(iii)In March 2001 just prior to the applicant’s 65^th birthday, he lodged a claim for age pension.   Age pension at a reduced rate was granted from 21 April 2001.  

(iv)The applicant sought a review of this decision and on 17 July 2001, the decision to pay age pension at a reduced rate was affirmed by the original decision-maker and subsequently affirmed by an authorised review officer on 25 January 2002.  

5.      It is the applicant’s contention that he is entitled to the full rate of Australian age pension on the basis that  (a) the period of contributions credited to him in Italy should be combined with his Australian working life residence which gives a total of 35 years which would thus entitle him to the full rate of pension, and further (b) that the provisions of the Social Security International Agreement between Australia and Italy do not apply to him for at the time when he was granted a supporting parent pension and thus qualified for “Australian assistance”  (prior to his departure from Australia) the International Agreement was not in force.   He argues that the provisions of the Agreement have no retrospective effect.

6. The applicant was in receipt of a supporting parent benefit only until his youngest child turned 16 years of age. His application for age pension was lodged in March 2001 and granted from 21 April 2001. The grant of the applicant’s age pension was subject to the law then applying, being the Act and the terms of the Social Security (International) Agreement Act 1989. The International Agreement between Australia and Italy is contained in Schedule 2 of the Act. The applicant’s grant of Australian age pension is clearly subject to these legislative provisions.

7.      The applicant referred the Tribunal to Article 7 of the International Agreement in support of his contention that he could combine his Australian working life residence with his period of credit contributions in Italy.

8.      The applicant contends that he had a period of 23 years credit contributions in Italy and when combined with his 12 years of Australian residency made a total of 35 years residency in Australia.

9.      Such an interpretation of the legislation is clearly incorrect and would provide a result placing the applicant in a better position than an Australian resident.

10.     The applicant has misinterpreted the provisions of Article 7 which refer to the minimum period required to qualify for the pension and that a period of credited contributions shall be deemed “only for the purposes of meeting any minimum qualifying period for that benefit set out in the legislation of Australia…”.

11.     Whilst the applicant did not meet the qualifying requirement of 25 years of Australian residence to be eligible for a full pension, the provisions of Article 8 of the International Agreement allow for the payment of pro rata benefits.   Article 8 states that the rate of that benefit shall be determined according to the legislation of Australia.    Article 8 provides that certain components of a social pension paid by Italy shall be disregarded in assessing the person’s income for the purposes of calculating their rate of Australian benefit.

12. The definition of “income” under s8 of the Act includes income amounts derived by the person for the person’s own benefit received from any source (whether within or outside Australia). The applicant’s superannuation pension paid by the German Democratic Republic was held by the Tribunal to be income derived by the applicant in the decision, Re Rose and Secretary, Department of Social Security (1989 17 ALD 615.

13.     It was submitted of behalf of the respondent that the applicant is currently in receipt of an INPS pension of 402,12 Euro each month and of this, 398,48 Euro is the contributory component, i.e. not an exempt component and the balance is the social supplement.   It was pointed out that only the contributory component is taken into account in determining the applicant's income.

14.     The Tribunal was referred to T11, page 65, a letter from the E Addison, Customer Service Officer, Centrelink dated 9 November 2001 addressed to the applicant which sets out how the applicant’s reduced pension was calculated.   It appears that only a very small portion of the applicant’s INPS pension has been taken into account in assessing the applicant’s income for the purposes of determining his rate of age pension.

15. The Tribunal is satisfied that the calculations have been done in accordance with the applicable pension rate calculator in the Act on the basis of the applicant’s Australian residence namely, 146 months.

16.     The Tribunal is satisfied that the rate of pension being paid to the applicant is in accordance with the applicable legislation as outlined above.   The Tribunal accordingly dismisses the appeal and affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: (K L Miller, Administrative Assistant)      

Date/s of Hearing  Matter decided on the papers.
Date of Decision  30 May 2003