HARVEY DU CROS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 549
•15 August 2012
[2012] AATA 549
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5606
Re
HARVEY DU CROS
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Date 15 August 2012 Place Perth The Tribunal affirms the decision under review.
...(sgd) K Hogan.....................................................
Ms K Hogan, Member
Catchwords
Aged Pension – Commencement date
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
15 August 2012
HISTORY
The applicant was born on 21 February 1940.
On 7 July 2008 he lodged a claim for aged pension at the Mandurah office of Centrelink.
On 10 July 2008 the applicant departed Australia for Innsbruck, Austria, where he continues to reside.
On 1 August 2008 a Centrelink officer rejected the applicant’s claim as he had not provided information regarding his income and assets.
On 20 August 2008 the applicant asked for the decision to be reviewed by an Authorised Review Officer ("ARO").
On 28 October 2010 the ARO reviewed and affirmed the decision to reject the applicant’s claim for aged pension as he had not provided information regarding his income and assets.
On 4 January 2011 Centrelink received a letter from the applicant dated 17 December 2010 regarding claiming aged pension.
On 18 January 2011 the applicant applied to the Social Security Appeals Tribunal ("SSAT") for a review of the ARO's decision of 28 October 2010 and on 11 April 2011 the application for review was withdrawn.
On 28 February 2011 Centrelink received a number of documents relevant to assessing the applicant’s entitlement to aged pension.
On 18 March 2011 the applicant completed an aged pension claim which was received by Centrelink on 29 March 2011.
On 1 August 2011 Centrelink granted the applicant aged pension with effect from 18 January 2011.
On 13 September 2011 the applicant requested a review by the SSAT.
On 9 November 2011 an ARO reviewed the decision and determined the aged pension should be granted from 4 January 2011.
On 15 November 2011 the SSAT affirmed the decision of 1 August 2008 to reject the applicant’s claim for aged pension and the decision of 9 November 2011 to grant the applicant aged pension from 4 January 2011 and not from an earlier date.
The applicant lodged an application for review to this Tribunal.
ISSUE
The issues to be considered by the Tribunal are:
(a)was the claim for aged pension lodged on 7 July 2008 properly rejected; and
(b)can the applicant be paid aged pension from a date earlier than 4 January 2011?
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant; and
(c) written submissions from the respondent.
The Tribunal heard oral submissions on behalf of the parties.
CONSIDERATION
The legislation relevant to this appeal is found within the Social Security Act 1991("the Act"), the Social Security (Administration) Act 1999 ("the Administration Act") and the Social Security (International Agreements) Act1999 ("the Agreements Act").
Pursuant to section 37 of the Administration Act the Secretary must grant a claim for a payment if the person is qualified to receive the payment and if the payment is payable to the person.
Section 43 of the Act provides that a person is generally qualified for that aged pension if they have reached aged pension age and have ten years qualifying Australian residence.
There is no dispute that the applicant was qualified for aged pension at all material times.
Section 55 of the Act provides that the rate of aged pension payable is calculated using Pension Rate Calculator A at the end of section 1064. Point 1064-A1 provides that the rate of pension is worked out as an annual rate which is then divided by 364 to provide a daily maximum rate. In broad terms, the rate calculator then provides that the maximum rate of pension is reduced by the results of either an income test or an asset test, depending on which of the tests results in the lower rate.
A Centrelink officer rejected the applicant's claim for aged pension on 1 August 2008 as not all financial information had been provided to enable a rate determination to be made and to be satisfied that aged pension was payable to the applicant.
Section 129 of the Administration Act provides that a person affected by a Centrelink decision may ask for a review of that decision.
If the request for review concerns a decision to grant payment, section 107 of the Administration Act applies. Relevantly, section 107 of the Administration Act provides as follows:
107.(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the date on which the determination is made or on such earlier or later day as is specified in the determination.
107.(2) If:
(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review.
The determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
If a person applies for review within 13 weeks of receiving notice of the decision, the favourable outcome (in this case, the grant of a payment) can start from the date of effect of that (original) decision.
In this case the Tribunal finds that the applicant asked for a review of the decision made on 1 August 2008 on 20 August 2008 which is within the 13 weeks time-line. Whilst it was not until 28 October 2010 that the ARO reviewed the matter and affirmed the decision, the delay would not have prevented granting the claim from the original date of application, had the ARO decided to so do.
The applicant initially applied to the SSAT for a review of the ARO's decision on 18 January 2011 (within the 13 week time frame) but withdrew his application on 11 April 2011. He applied again on 13 September 2011 and asked for a review of the decision to reject his 2008 claim.
There was significant discussion regarding the ambiguous wording of the Centrelink letter dated 28 January 2011 which requested information "regarding your situation when you first claimed in July 2008. As your claim is currently under review for backdating, we need to assess your income and assets as at the time of claiming. These are the same forms and documentation requested by letter to you on three separate occasions in 2008."
The applicant asserted that as a consequence of this letter he, not unreasonably, thought his claim was being reassessed as at the date of his original application and that therefore the appeal to the SSAT was no longer necessary. It was on this basis that he withdrew his appeal to the SSAT. Consistent with this is the wording of this letter of withdrawal dated 15 February 2011.
Whilst Mr Maishman, on behalf of the respondent acknowledged that the letter dated 28 January 20111 was poorly worded he asserted that the original letter (28 October 2010) notifying the applicant of the decision of the ARO and the subsequent letter of 7 March 2011 ( prior to the withdrawal of the SSAT appeal) are precise and that, in particular, the letter of 7 March 2011 specifically advises that " Should your claim that is currently with the Social Security Appeals Tribunal be unsuccessful, it would be in your best interests for you to lodge an official ( second) claim ..."
The respondent acknowledged that if the applicant's interpretation of the letter was correct (an interpretation it did not concede) a complaint to the Ombudsman or even a claim for compensation for defective administration may arise. The respondent stated that that the legislation does not provide a process by which this Tribunal could resolve any such complaint.
The applicants’ second application for a review of the ARO's decision was made more than 13 weeks after he was notified of the decision and therefore the restriction provided for in section 152(4) applies to him.
The applicant does not dispute that he did not provide the financial information needed to determine his rate of age pension until February 2010. This was because he had been involved in a property settlement dispute with his former wife and she did not make the information available until after the Court matter was settled. The applicant argued that his financial circumstances now are exactly the same as they were in 2008 and therefore he probably would have been granted the age pension then, had it not been for the unwillingness of his former wife to release the information.
It is not disputed that the information needed to determine the rate of aged pension was neither available at the time of the original decision (on 1 August 2008) nor at the time of the review officer’s decision of 28 October 2010.
On the basis of the facts in this case the Tribunal finds that the claim for aged pension lodged on 7 July 2008 was properly rejected.
The applicant stated that he contacted Centrelink again about a claim for age pension in October 2010 and in December 2010, as well as in January 2011. The Tribunal finds that the applicant lodged a second claim for aged pension from Austria on 29 March 2011.
Section 11 of the Act says that a person wishing to be paid a social security payment must lodge a claim for the payment. Subsection 23(1) of the Act provides that a social security payment includes an aged pension. Section 29 of the Act provides that as a general rule, a claim for a social security payment may only be made by a person who is an Australian resident and who is in Australia. As a general rule, a person not living in Australia is not permitted to make a claim for a social security payment.
The operation of the Act is modified in certain circumstances by the Agreements Act. Section 6 of the Agreements Act provides for the overriding of social security law by scheduled international social security agreements. Schedule 10 of the Agreements Act contains an Agreement between Australia and Austria on Social Security (the Austrian Agreement). Under the Austrian Agreement a person who is resident in Austria may lodge a claim for certain Australian social security payments, notwithstanding that they are neither an Australian resident or in Australia.
The Tribunal is satisfied that at the time the applicant lodged his second claim for an age pension he was a resident of Austria, and therefore able to lodge his claim for a social security payment.
The Tribunal is satisfied that the applicant made a claim for aged pension on 29 March 2011.
Pursuant to Clause 3 Part 2 of the Administration Act a person’s start day for payment is generally the date on which the claim is made, however, subsection 13(3A) of the Administration Act provides that the date a claim was made can be deemed to be an earlier date in certain circumstances.
If the applicant contacted Centrelink about claiming an aged pension in the 13 weeks prior to 29 March 2011 (that is from 28 December 2010) he may, in certain circumstances, be deemed to have made his claim on the date he contacted Centrelink. Centrelink have accepted that the applicant contacted them with regard to his claim for aged pension on 4 January 2011. This is the date on which the applicant’s letter dated 17 December 2010 was received at Centrelink’s Joondalup Office.
A Centrelink online document dated 14 January 2011 notes that the letter was received and forwarded to Centrelink’s International Services team. It was eventually responded to by letter dated 28 January 2011.
Consequently, the Tribunal finds that paragraphs 13(3A)(a) to (d) are satisfied in this case.
For subsection 13(3A) of the Act to apply, there must also be special circumstances such that “it was not reasonably practicable for the person to lodge the claim earlier” (at paragraph 13(3A)(e)). Centrelink have accepted such circumstances exist, as the applicant resides outside Australia and may therefore experience difficulties lodging his claim within the normal time frames.
The Tribunal finds that special circumstances exist in his case and paragraph 13(3A)(e) is satisfied. This means subsection 13(3A) can be applied in this case and 4 January 2011 can be taken to be the date the applicant made his claim for aged pension.
There is no evidence of any other date of contact between 28 December 2010 and 3 January 2011.
Clause 3 of Schedule 2 of the Act provides that if a person is qualified for the payment on the date they lodge their claim; their start date for payment is the date on which the claim is made.
The Tribunal determines the start date for the applicant’ aged pension is 4 January 2011
DECISION
The Tribunal affirms the Decision under review.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.
..(sgd) T Freeman.................
Associate
Dated 15 August 2012
Date of hearing 25 May 2012 Applicant In person Advocate for the Respondent Mr P Maishman
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