Herring and Secretary, Department of Family, Community Services and Indigenous Affairs

[2007] AATA 1303

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1456

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CICERO HERRING

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal SENIOR MEMBER ROBIN HUNT

Date of Decision                 2 May 2007

Date of Written Reasons  7 May 2007

Place  Sydney

Decision For the reasons given orally at the hearing of this matter the Tribunal affirms the decision of the Social Security Appeals Tribunal of 17 October 2006. 

…....................................

R Hunt

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart Mature Age Allowance – Australian Age pension – United States of America Age pension - Reduction of rate of age pension - Decision affirmed.

LEGISLATION

Social Security Act 1991

REASONS FOR DECISION

2 May 2007 Ms R Hunt, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Senior Member’s reasons were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the decision.

3.      The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt

Signed:         ........ Talaishia Collis .........
  Associate

Date/s of Hearing  2 May 2007
Date of Decision  2 May 2007     
Applicant   Cicero Herring         
Representative for the Respondent        Centrelink Legal Services

DRAFT JUDGMENT  [11.13am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/01456
By MS R. HUNT, SENIOR MEMBER
HERRING v SECRETARY, DEPARTMENT OF FAMILIES AND COMMUNITY SERVICES
SYDNEY, 2 MAY 2007

O/N 53512

MS HUNT:    Right.  well, I've tried to go through the various legislative provisions that have been raised before me this morning.  I'll try to deal with this orally, although it's a little bit complicated, so you'll have to excuse me if I lack some elegance.  Now, Mr Herring told me that he was born on 31 December 1938 which meant he turned 60 on 31 December 1998.  There was some debate about what allowance or payment Mr Herring had been receiving prior to the arrival of his United States' pension, which has become a contentious issue.

I understand now that he was receiving a form of Newstart allowance, called Newstart Mature Age Allowance and that is verified in the last page of the T documents which is at T19, 123, which shows on line five that he was receiving NMA which stands for Newstart Mature Age Allowance, and other adjustments were being made to Mr Herring's entitlements.  There's a sequence of events.  On 5 March 2001, Mr Herring was granted a monthly retirement pension from the Social Security Administration of the United States of America and the correspondence concerning that is at T4, pages 23 to 27, and page 26 in particular shows that the entitlement commenced from January 2001.  Mr Herring, at that time, was receiving the Newstart Mature Age Allowance and this event took place before the commencement of the agreement between Australia and USA signed on 27 September 2001, and commencing on 1 October 2002.

Nevertheless, the money from the States resulted in a reduction of his entitlement to Australian Newstart Mature Age Allowance.  Then on 15 December 2003, Mr Herring lodged an early claim for an Australian age pension and that is shown at T5.  The age pension was granted but it's been considerably reduced as Mr Herring was receiving the USA age pension.  By that time the agreement between Australia and the US was in effect, and Mr Herring was receiving what is called a “comparable foreign payment”. That is taken into account in calculating entitlements to Australian social security payments of various kinds, which I won't recite.

Section 23 defines a “comparable foreign payment” to mean a payment that is available from a foreign country and similar to a “social security pension”, which is also a defined term. “(S)ocial security pension” is defined in section 23 as well, I believe as an age pension and then a number of other pensions, (a) to (k). So that the definition of comparable foreign payment does cover this situation that Mr Herring is in. Mr Herring has argued that his pension income from the States should be treated as “excluded income” under section 8 of the Social Security Act. That's quite a long section, and Mr Herring has tried to explain the interpretation of that and he's dealt with several subsections, not all of which are raised today, I think. But I note that paragraph (a) of subsection (8) of section 8 refers to a “payment” under this Act.

Well, the payment from the States should not be excluded as a payment under this Act as it's clearly a different type of payment. It's not a payment under the Social Security Act, paragraph (8)(b) refers to it in “return on a person's investment”. We come down through various other types of payments which Mr Herring hasn't referred to and which I don't think - well, I'm sure are not relevant. We come down to paragraph (s) which we've recited a couple of times already. It says:

In the case of a person who is receiving a social security pension…

and a certain number of payments set out there -

…a payment received by the person in respect of the person's expenses associated with his or her participation in the training or work experience…

that means that those types of payments are excluded.  Mr Herring thinks it means social security pensions or benefits and the like, but in fact it means expenses associated with people who are participating in training or work experience.  So that doesn't exempt Mr Herring's income.

Then I can see from Mr Herrings submission that there was also discussion of section 8(8)(zc), which we didn't speak about today but it deals with so much of a payment received by the person as is in accordance with an agreement between the Commonwealth and a foreign country applied in reduction of the amount of social security payment that would otherwise be payable to the person under this Act and Mr Herring has said that the benefit he receives cannot be income under that paragraph as well. However, to include it in the definition of excluded income would mean applying the exclusion to the amount twice, once as the USA benefit and again as income.