JOAN STIVALA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 621

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 621

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6054

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOAN STIVALA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date8 July 2009

PlaceCanberra

Decision The reviewable decision made on 5 November 2008 is affirmed.

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

J.W. Constance, Senior Member

CATCHWORDS

SOCIAL SECURITY – 2008 one-off payment to older Australians – applicant were not receiving income support payment in respect of instalment period that included 13 May 2008 – applicant not eligible for one-off payment – decision under review affirmed

Social Security Act 1991 (Cth) – Sections 23, 93ZC

REASONS FOR DECISION

8 July 2009 J.W. Constance, Senior Member

INTRODUCTION

1.      On 13 May 2008, as part of the 2008-09 Budget, the Federal Government announced a one-off payment of $500 for older Australians.

2.      Mr Stivala was first granted the age pension effective from 16 April 2005.  Mrs Stivala was granted the pension from 20 September 2007.  Believing they qualified for the $500 payment they were dismayed to receive advice from the Secretary that in fact neither of them was entitled to the payment.

3.      Mr and Mrs Stivala sought a review of the decisions refusing payment.  On 8 July 2009, after hearing the applications, I affirmed the decisions under review and gave my reasons for so doing orally.  Mr and Mrs Stivala have requested that I provide written reasons for my decision and I now do so. Mr Stivala’s application number with the Tribunal is 2008/5679.

LEGISLATION

4.      Subsections 93ZC(1) and 93ZC(2) of the Social Security Act 1991 (Cth) provide:

Qualified if this section applies

(1)A person is qualified for a 2008 one‑off payment to older Australians if subsection (2), (3) or (4) applies to the person.

(2)       This subsection applies to a person if:

(a)       the person has reached pension age on or before 13 May 2008; and

(b)the person was receiving an income support payment, other than service pension or income support supplement, in respect of an instalment period that includes 13 May 2008; and

(c)the person was receiving that payment because of a claim the person made on or before 13 May 2008; and

(d)       on 13 May 2008, the person:

(i)        was in Australia; or

(ii)was temporarily absent from Australia and had been so for a continuous period not exceeding 13 weeks.

5.      Subsections 23(2) and 23(4) provide:

(2)For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.

(4)For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.

FACTS

6.      In these matters the facts were not in dispute.

7.      For several months (and in Mr Stivala’s case for three years) prior to 24 April 2009, Mr and Mrs Stivala had received fortnightly payments of the age pension.  By letters of 24 April 2008[1] they were advised that their pensions had been suspended from that date as their combined income was above the threshold for payment.  By letters of 26 May 2008[2] they were advised that their pensions had been cancelled.  Neither Mr Stivala nor Mrs Stivala received a payment of pension for any part of the period between 24 April 2008 and 26 May 2008.

[1] T8 and T9.

[2] T14 and T15.

8.      Mr and Mrs Stivala’s combined income for the fortnight 1-14 May 2008 was above the combined fortnightly threshold of $2,530 and neither of them was entitled to receive age pension for that fortnight or for the following fortnight.  Neither was entitled to any other income support payment during either fortnight.

REASONING

9.      The only subsection under which Mr and Mrs Stivala claimed to be entitled to the payment was subsection 93ZC(2).  It was not in dispute that they both met the requirements of subparagraphs (a) and (d) of the subsection.

10.     On the facts before me it is clear that neither Mr Stivala nor Mrs Stivala received the age pension or any other income support payment in respect of an instalment period that included 13 May 2008.  Even taking into account the provisions of subsections 23(2) and 23(4), the latest 14 day payment period after the pensions were suspended would have expired no later than 8 May 2009.

11.     It should be noted that Mr Stivala appeared at the hearing on his own behalf and on behalf of Mrs Stivala.  He requested the Tribunal make a decision even though he conceded that neither he nor Mrs Stivala qualified for the payment.

DECISION

12.     The reviewable decision made 5 November 2008 is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:         ......................[sgd]..........................................................
  T. Aviram, Associate

Date of Hearing  8 July 2009
Date of Decision  8 July 2009
Date of Written Reasons          21 August 2009
Applicant represented by          Mr M. Stivala                   
Counsel for the Respondent     Ms. J. Furner, Centrelink Legal Services