Habib and Secretary, Department of Family and Community Services

[2004] AATA 371

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 371

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1379

GENERAL ADMINISTRATIVE  DIVISION

Re:MARIA CECILIA HABIB

Applicant

And:SECRETARY, DEPARTMENT OF

FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             4 March 2004

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY ‑ partner allowance ‑ start date ‑ whether from date of marriage 

Social Security Act 1991 s7(2), 771HA(1)

Social Security (Administration) Act 1999 s11(1), 12(1), 13(2), (3), (3A)

REASONS FOR DECISION

4 March 2004  G.D. Friedman, Member

1.      This is an application by Maria Cecilia Habib (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 December 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 20 October 2003 to grant partner allowance to the applicant from 21 September 2000 and not from an earlier date.

2.      At the hearing on 4 March 2004 the applicant represented herself, assisted by an interpreter in the Spanish language, and Ms E. King, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T10).

BACKGROUND

4.      The applicant was born on 10 June 1950.  She was living in Chile and married her husband on 7 November 1997 in Santiago.  She arrived in Australia on 10 August 1998 as the holder of a provisional spouse visa.  On 13 August 1998 she contacted Centrelink and on 24 August 1998 she lodged a claim for special benefit, which was granted with effect from 13 August 1998.  The applicant was granted a permanent spouse visa on 19 January 2000.  She claimed and was granted partner allowance from 21 September 2000.

5.      On 19 September 2003 the applicant sought review of the decision to grant partner allowance from 21 September 2000, claiming that the start date for the allowance should have been the date of the marriage.  On 20 October 2003 an authorised review officer affirmed the decision.    

6.      On 28 October 2003 the applicant sought review by the SSAT.  Following the decision by the SSAT to affirm the decision, the applicant lodged an application with the Tribunal on 18 December 2003 for review of the decision.

7.      The issue before the Tribunal is whether the start date for the payment of partner allowance should be the date of marriage or some other date.

EVIDENCE

8.      In oral evidence the applicant said that because she was married on 7 November 1997 she should be entitled to partner allowance from that date.  She stated that, when she was granted a permanent residency visa on 19 January 2000, she was not told that she should inform Centrelink of her change in status. 

9.      Mr G. Habib, the applicant’s husband, gave oral evidence acknowledging that the law prevented payment of partner allowance from an earlier date, but stated that the law was wrong and unfair.  He said that when he married the applicant in Chile the Australian Embassy should have informed him of the eligibility requirements for social security benefits.  

CONSIDERATION OF THE ISSUES

10.     Ms King submitted that to be entitled to a social security payment a person must qualify for the payment and the payment must be payable to the person.

11. Section 771HA(1) of the Social Security Act 1991 (the Act) provides that, to qualify for partner allowance, a person must be an Australian resident. Section 7(2) of the Act defines Australian resident as a person who:

(a)       resides in Australia; and

(b)       is one of the following:

(i)        an Australian citizen;

(ii)       the holder of a permanent visa;

(iii)       a special category visa holder who is a protected SCV holder.

Ms King said that the applicant satisfied the Australian resident criterion of s 7(2) of the Act when she became the holder of a permanent visa on 19 January 2000.

12. Section 12(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides for the transfer from one income support payment to another, provided that the person is eligible for that payment. Ms King submitted that partner allowance was not payable to the applicant until 21 September 2000 when she provided documents in respect of her permanent residence status to Centrelink.

13.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

14. As the applicant was granted permanent residence on 19 January 2000 she satisfied s 7(2)(b)(ii) for partner allowance from that date. However, she did not provide Centrelink with evidence of her permanent resident status until September 2000.

15. Section 11(1) of the Administration Act provides that a person must make a claim for a social security payment to be eligible for that payment. The Tribunal finds that the applicant lodged a claim for partner allowance on 21 September 2000. The Tribunal finds that the applicant was receiving an income support payment (special benefit) and Centrelink contacted her in September 2000, but Centrelink was not in a position to make a decision to transfer her to partner allowance until she provided information on her permanent resident status.

16. Sub‑sections 13(2), (3) and (3A) of the Administration Act allow backdating of claims in certain circumstances, including illness. However, there is no evidence that these provisions apply to the applicant.

17.     Under s 729(2) and s 742 of the Act special benefit became payable to the applicant on 13 August 1998, being the date on which the applicant first contacted Centrelink before lodging her claim.  

18.     There is no provision in the legislation to grant a payment to the applicant by reason of her spouse satisfying the criteria for Australian residence.  

19.     For these reasons the Tribunal finds that the earliest date on which the applicant could be paid partner allowance is 21 September 2000.

DECISION

20.     For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  4 March 2004

Date of decision:  4 March 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms E. King, Centrelink