Gauzzi and Secretary, Department of Family and Community Services
[2003] AATA 1333
•23 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/438
GENERAL ADMINISTRATIVE DIVISION ) Re MARIO GAUZZI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date23 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)...........................
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements - age pension – arrears – claim for pension made after applicant became eligible – need for claim – calculation of start day – decision affirmed
Social Security Act 1991, s 23
Social Security (Administration) Act 1999, ss 11, 13, 15 and 42, and Schedule 2
REASONS FOR DECISION
23 December 2003 Mr R G Kenny, Member Background
1. Marion Gauzzi (the applicant) turned 65 years of age on 20 December 2001 and, after discussions with Centrelink officers on 23 January 2003, he lodged, on 24 January 2003, a claim for the age pension which is payable in accordance with the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). On 3 March 2003, a delegate of Centrelink, on behalf of the Secretary, Department of Family and Community Services (the respondent) determined that age pension was payable to the applicant from 23 January 2003. On 19 March 2003, an authorised review officer affirmed that decision. On 1 May 2003, the Social Security Appeals Tribunal (SSAT) also affirmed the decision. On 23 May 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, the applicant was not represented but appeared with the assistance of an interpreter in the Italian language. The respondent was represented by Mr M Hutcheson from the Department’s Service Recovery Team.
3. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents (T1-T15)).
Issues and Legislation
4. The qualification criteria for payment of the age pension are set out in Part 2.2 of the Act and it is not disputed that the applicant meets those requirements or that he has done so since his 65th birthday in 2001. Part 2.2A of the Act makes provision for a pension bonus scheme and the following simplified outline of that Part of the Act reads:
“A person who qualifies for an age pension but defers claiming that pension may be able to get a single lump-sum pension bonus.
* A person who wants to get a pension bonus must register as a member of the pension bonus scheme.
* To get a pension bonus, a person must accrue between 1 and 5 bonus periods while deferring age pension.
* Generally, a bonus period runs for 1 year.
* To accrue a bonus period, the person must pass the work test for that period.
* To pass the work test for a year, either the person, or the person's partner, must gainfully work for at least 960 hours during that year.
* The amount of a person's pension bonus depends on the number of accrued bonus periods and the person's annual rate of age pension. A person may get a bigger bonus by accruing more bonus periods.”
5. The provisions in relation to the making of a claim for the age pension are set out in the Administration Act. Relevantly, it reads:
“11 Subject to Subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
…
13(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…
15(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
…
42 For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
…
Schedule 2
3 Start day—general rule
(1)If:
(a)a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.”
6. In accordance with sub-section 23(1) of the Act, the term “social security payment” includes the age pension.
Applicant’s Evidence and Contentions
7. The applicant said that he approached Centrelink in December 2001 before his birthday and completed a form for registration for the pension bonus scheme. At that stage, he had recently established a retail fruit outlet, which he still operates. He said that, at that time, he was under the impression that he would not have been eligible for the age pension. He said that his fruit business has not been viable although he conceded that he had returned a profit for the 2002/2003 financial year in the order of $12,000.. He said that he is attempting to sell the lease on the premises and the business.
8. The applicant considers that he should be paid the age pension from the date of his 65th birthday in December 2001. He referred to the contributions that he has made to the Australian community throughout his working life and he submitted that it was unfair that he was not able to receive the age pension from the earliest possible date.
Respondent’s Contentions
9. Mr Hutcheson submitted that the age pension could not be paid to the applicant without a claim being made in relation to it. He submitted that the claim by the applicant was not made until 24 January 2003 and that this would mark the usual start date of payment if a person was otherwise qualified. Mr Hutcheson also submitted that the date when the applicant indicated an intention to claim would also be recognised in accordance with section 13 of the Administration Act and that this allowed the start date to be taken to 23 January 2003. However, he submitted that the age pension could not be paid from any earlier time in the applicant’s case.
Consideration
10. The applicant had discussions with Centrelink officers in early December 2001 and these resulted in his registering for the pension bonus scheme. This was not the same as making a claim for the age pension and I am satisfied that this was not done by the applicant until 24 January 2003. I accept the applicant’s evidence that he had not been aware that he could have made his claim when he turned 65 years of age and understand his concern that he has lost an opportunity to be paid a pension from then until January 2003. However, the sections of the Administration Act, as set out above, make clear provision for calculation of the start day for the age pension.
11. Section 11 of the Administration Act provides that a claim for the pension must be made and clause 3(1) of Schedule 2 of the Administration Act provides that the start date is the day on which the claim is made. I am satisfied that the claim by the applicant was made on 24 January 2003. However, section 13 of the Administration Act enables, in this case, the previous day to be the start day because of the contact that the applicant had with Centrelink on that day.
12. I have noted the terms of section 15 of the Administration Act which has the effect of allowing a person to be treated as having made a claim for a pension where an incorrect claim has been made. However, in this case, the applicant, in December 2001, did not claim a pension but, rather, registered for the pension bonus scheme which, at that time, was a legitimate option open to him. I am satisfied that his situation is not embraced by the terms of section 15 of the Administration Act.
13. I am satisfied that the earliest date from which the age pension was payable to the applicant was 23 January 2003. It was on that basis that the decision under review was made.
Decision
14. The Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 12 December 2003
Date of Decision 23 December 2003The Applicant appeared in person
For the Respondent Mr Hutcheson, Departmental Advocate
0
0
0