Jones and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 623

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 623

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1582

GENERAL ADMINISTRATIVE DIVISION		)
Re		Helen Jones

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Mr D Connolly AM, Member

Date21 August 2009

PlaceSydney

Decision The decision under review is affirmed.

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

Mr D Connolly AM
  Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – Age Pension – no longer eligible for Special Benefit – whether cancellation of a Newstart Allowance upon turning Age pension age was the correct decision – decision under review affirmed.

Relevant Act

Social Security Act 1991 – sections 23(5C), 593(1)(g)(i) and 729(2)

REASONS FOR DECISION

21 August 2009 Mr D Connolly AM, Member          

1.      On 29 March 2009, the Social Security Tribunal affirmed a decision of Centrelink made on 24 October 2008 to cancel the Newstart Allowance previously paid to Ms Jones, the Applicant.

2. Ms Jones was born on 24 April 1945. She ceased being eligible for the Newstart Allowance on 24 October 2008 when she reached the age of 63 years and six months pursuant to the provisions contained in subsection 23(5C) and subparagraph 593(1)(g)(i)of the Social Security Act 1991.

3.      On the same date, Centrelink notified Ms Jones that her Newstart Allowance had been cancelled due to her qualifying for the Age Pension. On 12 November 2008, Ms Jones advised Centrelink that she did not wish to be transferred to the Age Pension and appealed the decision. On 4 December 2008, the Authorised Review Officer affirmed the decision and on 18 December 2008, Ms Jones appealed to the Social Security Appeals Tribunal (“the SSAT”).

4.      The SSAT affirmed the decision that Ms Jones was no longer eligible to receive Newstart Allowance and was also not eligible for Special Benefit.

5.      On 21 April 2009, Ms Jones appealed the above decisions to this Tribunal.

Legislation

6. The relevant legislation in this matter is the Social Security Act 1991 (“the Act”).

7. Subparagraph 593(1)(g)(ii) of the Act provides the qualifications for Newstart Allowance:

(1)  Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart       allowance in respect of a period if:

…

(g)  throughout the period the person:

(i)  subject to subsection (2B), is at least 21 years of age and has not   reached the pension age; and

(ii)  is an Australian resident or is exempt from the residence requirement   within the meaning of subsection 7(7) …

8. Section 23 of the Act provides at subsection (5C):

(5C)  A woman born within the period specified in column 2 of an item in the         following Table reaches pension age when she turns the age specified in column 3 of that item.

Table--Pension age for women
Column 1 Item no.	Column 2 Period within which woman was born (both dates inclusive)	Column 3 Pension age
1.	From 1 July 1935 to 31 December 1936	60 years and 6 months
2.	From 1 January 1937 to 30 June 1938	61 years
3.	From 1 July 1938 to 31 December 1939	61 years and 6 months
4.	From 1 January 1940 to 30 June 1941	62 years
5.	From 1 July 1941 to 31 December 1942	62 years and 6 months
6.	From 1 January 1943 to 30 June 1944	63 years
7.	From 1 July 1944 to 31 December 1945	63 years and 6 months
8.	From 1 January 1946 to 30 June 1947	64 years
9.	From 1 July 1947 to 31 December 1948	64 years and 6 months

9.      Section 729 provides at subsection (2):

(2)  The Secretary may, in his or her discretion, determine that a special benefit   should be granted to a person for a period if:

(a)  no social security pension is payable to the person during the period; and

(b)  no other social security benefit is payable to the person for the period …

Contentions of the Applicant

10.     Ms Jones contends that she wants to remain on Newstart Allowance so that she can access Job Network services. In particular, she would like to receive relevant training to be a veterinary nurse assistant. She also contends that she is not ready to receive the Age Pension and that she should be able to elect between receiving Newstart Allowance and the Age Pension.

Contentions of the Respondent

11. Conversely, the Respondent contends that pursuant to subparagraph 593(1)(g)(i) of the Act, the Applicant is no longer eligible for Newstart Allowance after 24 October 2008 due to her age. A recipient of Newstart Allowance must be under Age Pension age to qualify for the allowance. Subsection 23(5C) of the Act, as outlined above in these reasons, defines Ages Pension age for women. As Ms Jones was aged 63 years and six months as at 24 October 2008, she is no longer eligible for Newstart Allowance.

12. The Respondent also asserts that if Ms Jones does not desire to be an age pensioner, she would not qualify for an alternative payment such as a Special Benefit as a result of the provisions contained in subsection 729(2) which are set out above at paragraph 9 of these reasons.

13. Given that Ms Jones is currently eligible for Age Pension payments, Special Benefit payments will not be available to her as a means of financial support due to the operation of subsection 729(2) of the Act.

14.     The Respondent therefore requested that the original decision be affirmed by this Tribunal.

Applicant’s Evidence at the Hearing

15.     At the hearing, Ms Jones appeared self-represented and gave oral evidence. She contended that she is healthy and active for her age and has been looking for work. She told the Tribunal that she is interested in undertaking work during the Christmas period, around which time she believes there will be job vacancies.

16.     She was of the opinion that she is being forced into retirement and has not only lost Job Network support services (other than using the computer for job search), but also any chance of getting work in her chosen field. She said that access to the Job Network was essential for her to receive training. The job network at Marrickville “Employment Plus” had told her that they fund courses through the Newstart scheme. Ms Jones said that she had realised that she was almost on retirement age and not eligible. However, she wanted to do a veterinary nursing course even though her skilling was in aged care.

17.     When Ms Jones last visited Employment Plus, her name was no longer listed on the computer database. She hopes to commence a community services course at North Sydney TAFE early in 2010 but was unsure how she would fund payment for the course. She really wants to do something with her life and remain in the workforce as she is not ready for retirement.

18.     Ms Jones is currently receiving the Age Pension, but this has not been out of choice. She has been offered temporary casual work in packing, which she may take up. She understands that Job Network services are no longer funded by the Government and thus she is unlikely to get funding for her veterinary nursing course. Ms Jones requested that the Tribunal treat her case as an exception to the rule. 

Respondent’s Evidence at the Hearing

19.     Ms Butler appeared for the Respondent and alluded to the fact that the relevant legislative provisions in question were specific and did not allow for exceptions.

20. Under section 593 of the Act, Ms Jones could only qualify for Newstart Allowance up to her Age Pension age. Upon reaching the age of 63 years and six months, Ms Jones qualified for the Age Pension and there is no option under the Act but to cancel her Newstart Allowance payments. It was recognised that Ms Jones needed support to find a job, but age pensioners do not currently qualify for funding under the Newstart scheme although they are at liberty to seek employment. Even if she was under Newstart Allowance, there was no guarantee that she would find work in her chosen field. It was explained to Ms Jones that she could not qualify for a Special Benefit because she had qualified for the Age Pension.

Decision

21. The Tribunal is satisfied that there are no provisions under the Act which allow for the continuation of Newstart Allowance after a beneficiary becomes eligible for the Age Pension. Moreover, as the Applicant is receiving the Age Pension, she is no longer eligible to receive a Special Benefit.

22.     Consequently, the decision under review that Ms Jones is no longer eligible to receive neither Newstart Allowance nor a Special Benefit is affirmed.

I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member

Signed: .....................................[sgd]....................................................
  Associate

Date of Hearing  18 August 2009
Date of Decision  21 August 2009 
Appearance for the Applicant        Self-represented        
Appearance for the Respondent    Ms C Butler, Centrelink Legal Services