Ivanova and Secretary, Department of Social Services (Social services second review)

[2019] AATA 5423

Ivanova and Secretary, Department of Social Services (Social services second review) [2019] AATA 5423 (26 November 2019)

Division:GENERAL DIVISION

File Number:          2019/4606

Re:Jivka Ivanova

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date of decision:               26 November 2019

Date of written reasons:         17 December 2019

Place:Melbourne

The Tribunal affirms the decision under review.

..................[sgd].................................

Senior Member

Catchwords

SOCIAL SECURITY – age pension – portability – Australian Working Life Residence – absence greater than 26 weeks – decision affirmed

Legislation

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

17 December 2019

1. The Applicant, Ms Jivka Ivanova, has requested written reasons for the oral decision I gave on 26 November 2019.

2. The reasons for decision follow my perusal of the Transcript of the hearing and are substantially the same as those which appear there.

3. The Applicant sought review of the decision dated 27 June 2019 made by the           Social Services & Child Support Division (‘Tier 1’) of this Tribunal. Tier 1 affirmed the decision of the Centrelink authorised review officer dated 15 March 2019, in relation to the calculation of the Applicant’s portable rate of Age Pension.

4. The Applicant had been receiving the Age Pension under the provisions of the           Social Security Act 1991 (‘Act’) since September 2006, and from October 2006 has lived overseas in Bulgaria returning to Australia from time to time.

5. The Applicant’s Age Pension was portable, however the Act provided that in the case of an absence of 26 weeks from Australia, the rate of the Age Pension was to be based on a person’s Australian Working Life Residence (‘AWLR’). Prior to 1 July 2014, a person received the full rate of Age Pension if they had 300 months or 25 years of AWLR.

6. The Applicant had an AWLR of 292 months meaning she received almost the full rate of Age Pension.

7. On 1 July 2014, an alteration was made to these arrangements by an amendment made to the Act.

8. From 1 July 2014, if a person in receipt of the Age Pension were to return to Australia and stay for less than 26 weeks then there was no change. However, if the person stayed more than 26 weeks then the person had to accrue 420 months or 35 years of AWLR to receive the full amount of Age Pension.

9. On 8 January 2018, the Applicant returned to Australia and departed on 29 July 2018.  The Applicant was therefore in Australia for greater than the allowed 26 weeks by about 21 days.

10. This means the Applicant fell under the new provision because her travel was after          1 July 2014. As a result, the Applicant qualified for less Age Pension than she had been receiving and her Age Pension was reduced accordingly.

11. The Applicant argued that the alteration in the law was unfair to her and that she was given no notice of the change as she should have been by, or on behalf of, the Respondent.

12. There was no merit whatsoever in that argument. The amendment to the Act applied to all and was properly passed legislation. It did not single out the Applicant for adverse treatment. Moreover, I consider that it was not the Respondent’s role to tell the Applicant of the change. I am unable to make a finding that the Applicant would have stayed in Australia for less than what she did had she known of the new provision.

13. In that regard I listened carefully to her affirmed evidence given over the telephone and considered the submissions made in person on her behalf by Ms Kilickaya (her daughter) and by Mr Vitcheff.

14. The fact is, as I found it, the law had changed, and, further the new law applied to the Applicant.

15. I found there were no exceptions created by the new law and it was not a law which should not apply to the Applicant.

16. The Applicant objected to the new law applying to her but I could see no ground in any of the evidence for any such objection in law.

17. Accordingly the decision under review was affirmed. I say nothing further about any compensation scheme operated or managed by the Respondent. Clearly, the Applicant has simply fallen within a provision which she did not know about but that is no reason to say that the provision does not apply.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision of Dr Damien Cremean, Senior Member.

.....................[sgd]..............................

Associate

Dated: 17 December 2019

Date of hearing:	26 November 2019
Advocates for the Applicant:	Ms Flora Kilickaya and Mr Ian Vitcheff
Solicitors for the Respondent:	Mr Brian Sparkes Department of Human Services