FREDERICK KLEIMEYER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 645

[2012] AATA 645

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2196
Re	FREDERICK KLEIMEYER
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	25 September 2012
Place	Brisbane

The Tribunal affirms the decision under review.

.................[Sgd].......................................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Applicant qualified for age pension on his 65^th birthday in 1990 – Contact with Centrelink in April 2004 – No claim for age pension before 20 April 2004 – Age pension granted with effect from date of contact by applicant – Age pension not payable before April 2004 – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 23

Social Security (Administration) Act 1999 (Cth) ss 11, 13, 109

REASONS FOR DECISION

Mr R G Kenny, Senior Member

25 September 2012

BACKGROUND

1. Frederick Kleimeyer turned 65 years of age in 1990. After making telephone contact with Centrelink on 5 and 6 April 2004, he lodged a claim for age pension on 20 April 2004. On 12 July 2004, his claim was granted with effect from 6 April 2004 and he was so notified. Mr Kleimeyer sought review of that decision on 5 December 2011. The original decision was affirmed on 7 March 2012 by an authorised review officer and, in turn, by the Social Security Appeals Tribunal on 2 May 2012. With the consent of each party and in accordance with the terms of s 34J of the Administrative Appeals Tribunal Act 1975 (Cth), the matter came before the Tribunal without a formal hearing.

   EVIDENCE AND SUBMISSIONS

2. In written submissions, Mr Kleimeyer contended that he should have been paid the age pension from the date of his 65^th birthday and that Centrelink was at fault for not providing him with advice that he was able to make a claim for it at that time. He wrote that he relied on his own financial resources on turning 65 but submitted that, as his financial position deteriorated, principles of natural justice required that he be paid the age pension from the date of his 65^th birthday.

3. For the respondent, it was submitted that, in order for the age pension to be paid, a claim for it must be made to Centrelink and that the commencement date for payment is the claim date or an earlier date in limited circumstances. It was submitted that, on these bases, the earliest date for payment of the age pension to Mr Kleimeyer was 6 April 2004. However, for the purposes of Mr Kleimeyer's case, it was also submitted that, if review of a Centrelink decision is sought more than 13 weeks from the date of the original decision, a favourable decision may take effect from the date of the request for review. It was noted that the original decision was made on 12 July 2004 and that Mr Kleimeyer sought review of that decision on 5 December 2011. Because of the lapse of time, it was submitted that the earliest date for payment as a result of a favourable review would be 5 December 2011. It was noted that, by then, Mr Kleimeyer had already been in receipt of age pension for several years.

   CONSIDERATION

4. Under s 11 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), a claim must be made for a social security payment. This includes the age pension.[1] Under s 13 of the Administration Act, where contact with Centrelink is made and a claim is then made within 14 days, the age pension may be paid from the date of contact. This is what happened in Mr Kleimeyer's case so that his age pension was granted from 6 April 2004 on which date notice of the decision was also given to him. I have noted Mr Kleimeyer's submissions about being denied natural justice and being paid age pension from the date of his 65^th birthday. However, the age pension may be granted only in accordance with social security legislation and, unfortunately for Mr Kleimeyer, there is no provision for his age pension to be paid from any date earlier than 6 April 2004.

   [1] As defined in s 23 of the Social Security Act 1991 (Cth).

5. There is provision under s 109(2) of the Administration Act for backdating, in certain situations, the start date of a favourable determination. However, the relevance of that provision is that, where review of a decision is requested more than 13 weeks after the notice of the original decision was given, any favourable determination may take effect only from the date when the request was made. Mr Kleimeyer sought review of the original decision on 5 December 2011. That was more than the 13 week after the time‑frame nominated in s 109(2) of the Administration Act. The earliest date of any favourable determination would be 5 December 2011 which is of no assistance to Mr Kleimeyer as he was already in receipt of the age pension at that time.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

...................[Sgd].....................................................

Associate

Dated  25 September 2012

Hearing on the Papers 18 September 2012