[2015] AATA 152
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2014/0076
Re
James Curtis-Smith
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr T Nicoletti, Senior Member
Date 17 March 2015 Place Sydney The decision under review is affirmed.
.......................[sgd].................................................
Dr T Nicoletti, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – age pension – whether the applicant was required to be an Australian resident when he made a claim for age pension - whether applicant was an Australian resident – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 23, 43
Social Security (Administration) Act 1999 (Cth) ss 3, 29, Sch 1
REASONS FOR DECISION
Dr T Nicoletti, Senior Member
17 March 2015
Mr Curtis-Smith has applied to the Tribunal for review of the Social Security Appeals Tribunal’s (SSAT) decision to affirm the decision of an Authorised Review Officer (ARO) at Centrelink to reject his claim for age pension.
At the time Mr Curtis-Smith made his claim for age pension on 7 February 2013 he was of age pension age. He was in Australia when he lodged this claim.
Following the lodgement of his claim Centrelink requested that Mr Curtis-Smith provide further information and to complete additional forms. On two occasions, Mr Curtis-Smith was informed that his claim for age pension had been rejected because he had not provided all the requested information.
On 29 May 2013, Mr Curtis-Smith’s claim for age pension was rejected on the basis that he was not in Australia at the time he lodged the claim. There is a reference in the documents to Mr Curtis-Smith having lodged another claim form on 3 May 2013, when he was located in the Philippines, and it appears that this may have been treated as a new claim, as opposed to being submitted to provide information that was missing when the first claim form was lodged.
On 17 August 2013, the ARO affirmed the decision to reject Mr Curtis-Smith’s claim for age pension. The ARO decided to treat the second claim form as a request for a review, as opposed to a new claim. The ARO affirmed the decision to reject Mr Curtis-Smith’s claim for age pension because without the outstanding Private Trust and Company form it was not possible to determine whether he was entitled to age pension and that it was payable.
On 9 December 2013, the SSAT affirmed the ARO’s decision and decided that Mr Curtis-Smith’s application was correctly rejected because he was not an Australian resident.
ISSUES
The issues the Tribunal must decide are:
(a)whether the applicant was required to satisfy s 29 of the Social Security (Administration) Act 1999 (the Administration Act); and
(b)if so, whether the Applicant was an Australian resident when he made his claim for age pension.
The Respondent concedes that Mr Curtis-Smith satisfies the criteria in s 43(1) of the Social Security Act 1991 (the Social Security Act) to qualify for the age pension, although this is irrelevant if he was not an Australian resident when he…
Continue reading James Curtis-Smith and Secretary, Department of Social Servi...
Sign in free to access the full text
- AGLC
- James Curtis-Smith and Secretary, Department of Social Services [2015] AATA 152
- Case
- [2015] AATA 152
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether Mr Curtis-Smith needed to satisfy the residency requirements outlined in section 29 of the Administration Act to make a valid claim for an age pension. The Tribunal had to determine if the term "general rule" in section 29 meant that the residency requirement was not universally applicable or if it was necessary for Mr Curtis-Smith to prove his residency status at the time of his claim. The Tribunal also needed to examine whether the applicant was indeed an Australian resident at the time he made the claim for an age pension.
The Tribunal examined the relevant sections of the Administration Act and concluded that the term "general rule" in section 29 did not negate the requirement for a claimant to be an Australian resident. It was determined that the applicant needed to prove his residency status to make a valid claim for an age pension. The Tribunal found that Mr Curtis-Smith had not been an Australian resident since late 2001, nor was he a resident at the time he made his claim, or during the relevant 13-week period thereafter. Consequently, the Tribunal affirmed the decision under review, maintaining that Mr Curtis-Smith did not meet the residency requirement necessary to claim an age pension.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Respondent concedes that Mr Curtis-Smith satisfies the criteria in s 43(1) of the Social Security Act 1991 (the Social Security Act) to qualify for the age pension, although this is irrelevant if he was not an Australian resident when he made his claim. Accordingly, it is not necessary for this Tribunal to consider whether Mr Curtis-Smith meets the requirement to have a “10 years qualifying Australian residence”.WHETHER THE APPLICANT WAS REQUIRED TO SATISFY SECTION 29 OF THE ADMINISTRATION ACT Division 1 of Part 3 of the Administration Act concerns the provision of benefits and includes provisions that prescribe how claims for social security benefits are to be made and time limits for claims. Subdivision H is concerned with residence requirements for claimants and commences with the following “general rule” in section 29:29 General rule(1)Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:(a) is an Australian resident; and(b) is in Australia.(2)Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made. Sections 30, 30A, 31, 31A and 32 of the Administration Act are not applicable to the circumstances of this case. The applicant contends that the reference to section 29 as a “general rule” means that the rule is not one of universal application and, on that basis, Mr Curtis-Smith did not “have to prove the requirement that he is an Australian resident”. In the alternative, the applicant submitted that if the Tribunal determined that the applicant bore the onus of proving that he was an Australian resident, it must be guided by the provisions in sub-section 7(3) of the Social Security Act. I note that section 3 of the Administration Act provides, relevantly:…(2) Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act.… The Dictionary in Schedule 1 of the Administration Act indicates that a reference to the “1991 Act” means the Social Security Act. In section 23 of the Social Security Act, a “social security payment” is defined to include a “social security pension” and an “age pension” is defined as being a “social security pension”. Thus, reverting to the terms of section 29, I am satisfied that a person who submits a claim for an age pension must be an Australian resident (cf section 29(1)(a) of the Administration Act) and be in Australia (cf section 29(1)(b) of the Administration Act) during the relevant period, being the time from the date the claim was made until 13 weeks after the claim was made. I am satisfied that Mr Curtis-Smith was in Australia at the time his claim for an age pension was submitted to the Department. In that regard, section 29(1)(b) of the Administration Act is satisfied. In determining whether Mr Curtis-Smith was an Australian resident at the time the claim was made, I must have regard to section 7 of the Social Security Act.WHETHER THE APPLICANT WAS AN AUSTRALIAN RESIDENT WHEN HE MADE HIS CLAIM FOR AGE PENSION