Horton and Department of Family and Community Services
[2000] AATA 374
•17 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 374
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1999/209
GENERAL ADMINISTRATIVE DIVISION )
Re DONALD WALTER HORTON
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member)
Date17 May 2000
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Part-Time Member
CATCHWORDS
Social Security – overseas age pension – housing benefit paid under UK registration – whether classed as "income" for purposes of the Act although not received by applicant.
Social Security Act 1991 – s.8
Secretary, Department of Social Security v Davies (1997) 75 FCR 596
REASONS FOR DECISION
17 May 2000 Ms A F Cunningham (Part-time Member)
The applicant has sought the review of a decision made by a Centrelink officer on 19 May 1999 which determined that the applicant had been overpaid the sum of $4,940 in his Australian age pension. This decision was affirmed by an authorised review officer on 21 July 1999. On 18 August 1999 a further decision was made by a delegate of the respondent Department to reduce the overpayment sum from $4,940 to $3,028.80. The decisions under review were affirmed by the Social Security Appeals Tribunal (SSAT) on 28 October 1999.
The applicant has contended that the UK Housing Benefit received by him should not be classed as income in his hands. He argues that the benefit reflects the amount of rent that he has been assessed as being able to pay based on his financial means.
The issue to be decided by this Tribunal is whether the benefit received by the applicant by way of rent rebate is "income" for the purposes of the Social Security Act 1991 ("the Act") which would accordingly reduce the amount of pension benefit payable to the applicant.
The parties agreed that the Tribunal should determine the appeal in the parties absence as the applicant currently resides in the United Kingdom.
The material relied upon by the parties consisted of the T documents submitted pursuant to the provisions of s.37 of the Administrative Appeals Tribunal Act 1975 and correspondence received from the applicant, including his letter of appeal dated 8 December 1999.
A reading of the material on the file reveals that the applicant who was born in the United Kingdom and sent to Australia as a child migrant in 1934 at the age of 10 years, returned to live in the United Kingdom on 31 March 1993. The applicant had been granted an age pension on 18 September 1986 whilst residing in Australia and continued to receive the pension on returning to the United Kingdom. Shortly after his return, he was sent a letter by the respondent Department on or around 2 April 1993 concerning his age pension which informed him of his obligation to notify the Department of any changes to his income within 28 days.
The applicant contended that he wrote to the Department on 31 May 1993 advising that he was in receipt of a Housing Benefit from the Waverlyborough Council and the amount of rent that he was to pay. However an examination of the letter which was dated 20 April 1993, 25 May 1993, 31 May 1993 disclosed the following statement from the applicant:
"I now have a rented accommodation thanks to the Waverlyborough Council Housing Department, at the rate of £35.13 plus £1.93 water charge per week. I also have to pay Council tax plus power and gas charges."
No reference was made to the fact that the applicant was then in receipt of the UK Housing Benefit. The applicant went to state how he was dissatisfied with the decrease in the amount of Australian pension that he was receiving because of the variations in the exchange rate.
An examination of the T documents and various letters forwarded by the applicant to the respondent Department revealed the applicant's concerns with the varying exchange rates and the consequential reduction to the amount of Australian pension that he received from time to time. Responses forwarded by the respondent indicated that initially the applicant was in receipt of the maximum amount of age payable prior to any variation due to of the UK Housing Benefit received by him, and that the legislation did now allow for variations in the cost of living increases for overseas countries.
The rate of pension payable to the applicant was varied by the respondent upon receipt by it of information that the applicant was in receipt of a UK Housing Benefit. An examination of the T documents reveals that the respondent was first advised by the applicant of the receipt of his UK Housing Benefit in the statement made on 13 April 1999. Upon receipt of that information the applicant was advised of the variation to the rate of his Australian age pension.
The applicant maintains that at no time was he informed that the receipt of a UK Housing Benefit would be classed as income for the purposes of his Australian age pension. He argued that it is not regarded as such by the UK government and in his mind should not be classed as income as it is not monies received by him, but rather a benefit received by the Waverlyborough Council.
Under the provisions of s.8 of the Act, income is defined as:
"'income', in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person's own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4),(5),(7A) or (8)."
Under sub-section 8 the list of exemptions from the definition of "income" does not include payment of a UK Housing Benefit.
The Federal Court in the case of Secretary, Department of Social Security v Davies (1997) 75 FCR 596 held that the UK Housing Benefit was income for the purposes of calculating an Australian, although the payment was made direct to the landlord.
"In my opinion, the payments made under the United Kingdom legislation were either a payment or benefit, or perhaps both, made by way of 'allowance'. The ordinary meaning of the term 'allowance' would include a payment which the payee does not earn by personal exertion or income from property but which is received by way of statutory entitlement or charitable disposition."
The applicant has submitted that if the UK Housing Benefit which has not been received by him personally can be classed as "income" for the purposes of the Act, then so should other benefits such as the receipt of legal aid, reduced bus and tram fares etc be so regarded. This Tribunal however is bound by the decision of the Federal Court which has deemed that the UK Housing Benefit, however received is deemed "income" pursuant to the provisions of s.8 of the Act.
The Tribunal has read with come sympathy the applicant's account of the circumstances in which he was sent to Australia as a young child and his reasons for returning the United Kingdom to be reunited with a family that he had never known. However there are no provisions under the relevant legislation enabling the Tribunal to exercise a discretion to disregard or vary the amount of benefit that the applicant has received by way of UK Housing Benefit in determining the amount of income that the applicant has received in the calculation of the applicable rate of Australian age pension.
Accordingly, the Tribunal finds the respondent has correctly calculated the variation to the rate of Australian age pension as from 5 July 1993 from the information received from the Waverlyborough Council.
Further, the Tribunal accepts that the applicant failed to notify of changes to his income, despite the request sent to him under s.68 of the Act on 2 April 1993. Whilst the UK Housing Benefit is not listed on any documentation forwarded by the respondent Department as a form of income or benefit, nevertheless the obligation imposed is that the applicant notify the respondent of any variation to his "income", which has been interpreted by the Federal Court to include the UK Housing Benefit.
This Tribunal agrees with the applicant that it is most unfortunate that the respondent Department does not in its documentation specifically refer to the UK Housing Benefit which could avoid the overpayment of pensions and consequential actions and appeals to this Tribunal.
The Tribunal having found that the applicant was in receipt of a benefit which took his income above the threshold as from 13 July 1993, as a consequence of when an overpayment resulted, the applicant having failed to notify the respondent in accordance with his obligations under the Act. The amount so paid is a debt due by him to the Commonwealth.
The appeal is dismissed and the decision under review is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing Matter decided on the papers.
Date of Decision 17 May 2000
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