Henry Fermond and Secretary, Department of Family and Community Services

[2006] AATA 349

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006]AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/138     

GENERAL ADMINISTRATIVE DIVISION		)
Re		Henry Fermond

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date 12 April 2006

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of a decision of the Social Security Appeals Tribunal dated 12 July 2005 to reduce the Applicant’s age pension.

..............................................

Member

CATCHWORDS

SOCIAL SECURITY – age pension – application for review of decision of Social Security Appeals Tribunal to reduce age pension - application for extension of time – whether reasonable prospects of success of application for review - whether reasonable explanation for delay – whether the applicant was aware of his rights – extension of time not granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 29(7)

Social Security Act 1991 – ss 11, 44, 1064 and 1118.

CASE LAW

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

12 April 2006 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. Mr Fermond (‘the Applicant’) seeks an extension of time under S29(7) of the Administrative Appeals Tribunal Act 1975 for the filing of his application for review to the Administrative Appeals Tribunal (‘the Tribunal’) of the decision of the Social Security Appeals Tribunal (‘the SSAT’) dated 12 July 2005 that his age pension be reduced to $205.25 per fortnight. .

2.      The Applicant put his submission to me on 24 March 2006.  Centrelink was represented by Luke Carter, an advocate from the Centrelink Legal Services Branch (‘the Respondent’).

BACKGROUND

3.      The Applicant receives age pension but on 11 August 2004 the Respondent reduced his payment rate because the value of his combined assets (excluding the property in which he resides at Bullaburra) was $241,396.  The Applicant’s main asset is a property at Faulconbridge which was valued at $240,000 by the Australian Valuation Office (‘AVO’).

4.      The Applicant contacted the Respondent regarding the decision to reduce his age pension but declined an on site inspection of the Faulconbridge property.  Later, he informed the Respondent the property would not be leased from 12 December 2004.  On 22 December 2004 the AVO confirmed the value of the property at $240,000.

5.      The Applicant requested a review of the decision by an authorised review officer (‘ARO’), who affirmed the decision.  The ARO advised the Applicant that, as a single homeowner, he can receive a full pension if his assets do not exceed $153,000.  Since the Applicant’s assets exceeded that amount his rate of age pension was reduced.  In addition, the ARO advised the Applicant of the ability to make a claim under the hardship provisions and urged him to speak to a complex assessment officer or a financial information services officer.

6.      The Applicant appealed to the SSAT which affirmed the decision under review.  That decision was sent to the Applicant on 15 July 2005.

7.      On 11 August 2005 the Applicant attended an interview at Centrelink where he spoke with an officer about his investment property.  No further contact or enquiries were made by him with the Respondent.

8.      On 15 February 2006, the Applicant lodged an application for an extension of time to appeal against the SSAT decision.

CONSIDERATION

9.      As I explained to the Applicant, there are a number of factors to be considered in an application of this kind and these are addressed below:

Merits of the applicant’s case and significant issue to be determined

10.     I must consider the Applicant’s prospects of success: per Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.

11.     The Applicant has basically only 2 assets: the house at Bullaburra in which he lives, and a property in Falconbridge.  The only evidence of the value of that later property is by the AVO: $240,000.  This amount significantly affects the rate at which the Applicant’s pension is payable.

12. Sections 11, 44, 1064 and 1118 of the Social Security Act 1991 provide as follows:

11  Assets test definitions

11(1)    In this Act, unless the contrary intention appears:

asset means property or money (including property or money outside Australia).

…

44Age pension not payable if pension rate nil

(1)Subject to subsection (2), an age pension is not payable to a  person if the person’s age pension rate would be nil.

(2)Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

(a)       the social security law; or

(b)Division 2 of Part VIIA of the Veterans’ Entitlements Act

…

1064  Rate of age, disability support, wife pensions and carer payment and of disability wage supplement (people who are not blind)

1064(1)          The rate of:

(a)       age pension; and

(b)       disability support pension or disability wage supplement of a   

person who has turned 21; and

(c)       wife pension; and

(d)       carer payment; and

(f)        mature age allowance under Part 2.12A; and

(g)       mature age partner allowance;

is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.

…

1118  Certain assets to be disregarded in calculating the value of a person’s assets

1118(1)In calculating the value of a person’s assets for the purposes of this   Act (other than sections 198H, 198HA, 198HB, 198J, 198JA, 198JB, 198K and 198L, subparagraph 501E(1)(d)(iv), Division 1B of Part 3.10 and sections 1125, 1126, 1133 and 1135A), disregard the following:

(a)if the person is not a member of a couple—the value of any right or interest of the person in the person’s principal home that is a right or interest that gives the person reasonable security of tenure in the home;

(b)if the person is a member of a couple—the value of any right or interest of the person in one residence that is the principal home of the person, of the person’s partner or of both of them that is a right or interest that gives the person or the person’s partner reasonable security of tenure in the home;

13.     The Applicant said that he now concedes that the Faulconbridge property is valued at $240,000.  I confirmed with him that this was now his position.  The reason he has declined further valuation or obtained his own is that, following the experiences of his youth in Russia, he has no wish to allow strangers into his house to conduct a valuation.

14.     The Applicant’s combined assets of $241,396 as determined on 11 August 2004 exceeded the then applicable assets value limit of $153,000.  The assets test appears to have been correctly applied to reduce the rate of his age pension.

15.     I find that the Applicant’s application for review has little, if any, prospect of success.

Length of delay and whether there is an acceptable reason for the delay

16.     As to delay, I asked the Applicant what he had done on receipt of the SSAT decision.  He said he thought it was ‘the end of myself’, and that he had been ‘pushed to the brink’.  He said he ‘didn’t care about anything’, and he thought the situation was ‘useless’. 

17.     I pointed out to him that the Respondent’s records note that he attended at the Katoomba office on 11 August 2005, that is, a couple of weeks after the decision of the SSAT, and during this period he was able to file the application for review.  He ‘vaguely remembers’ that he went to Centrelink.  He said he happened to be in Katoomba so went into Centrelink. 

18.     As to why he did not lodge the application for review he said that he has been schizophrenic for many years and takes medication.  I pointed out that this had not impeded his visiting Centrelink to discuss the SSAT decision and the valuation.  He said that the medication wears off in the afternoon.  He said he had ‘contemplated appealing but it went out of his mind’.

19.     I do not find his explanation for the delay to be sufficient for the Tribunal to exercise its discretion.

Awareness of rights

20.     The Applicant did not deny receipt of the SSAT decision and, by his subsequent attendance at Centrelink, was aware of its contents. 

Conclusion

21.     I accept that the Applicant is in an impecunious position, but he chooses not to have a tenant in the Faulconbridge property after a bad experience when he let the property in 2003.

22.     The Applicant said that his residence is in a decrepit state but he is very attached to the property.  The Respondent confirmed that the Applicant’s pension entitlement may alter if he were to move into the smaller, but possibly more valuable, house in Faulconbridge (so that it becomes his principal residence). 

23.     I also observe that the ARO had informed the Applicant of the opportunity to make a hardship claim but apparently this has not been pursued.

24.     Having regard to my findings in relation to the merits of his application for review, the reason for the delay and the Applicant’s awareness of his rights I have decided not to grant an extension of time.

DECISION

25.     The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of the Social Security Appeals Tribunal dated 12 July 2005 to reduce the Applicant’s age pension.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Sandrine Lepage

Associate

Date of hearing  24 March 2006
Date of Decision  12 April 2006
Representative for the Applicant    Henry Fermond, Self-Represented
Advocate for the Respondent        Luke Carter, Centrelink