KHALID NAWAZ and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 572

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 572

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0845

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KHALID NAWAZ

Applicant

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

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member

Date3 August 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe

Senior Member

SOCIAL SECURITY - receipt of UK source pension – whether income - whether income stream.

Social Security Act 1991

Sallan and Secretary Department of Family and Community Services [1999] AATA 539.

Cremer and Secretary, Department of Family and Community Services [2001] AATA 509

Rose and Secretary, Department of Family and Community Services [1999] 17 ALD 615

Bersee and Secretary Department of Family and Community Services [2003] AATA 201

Schwatschko and Department of Families, Community Services and Indigenous Affairs [2008] AATA 1048

REASONS FOR DECISION

3 August 2009 B.H. Pascoe, Senior Member       

1.      This is an application to review a decision of the Social Security Appeals Tribunal of 19 January 2009 which affirmed a decision of the respondent dated 9 October 2008 to assess amounts received from United Kingdom (UK) pension as income for the purpose of calculating the entitlement to Australian Age Pension. 

2.      As there was no dispute in relation to the facts of this case, the applicant Mr K. Nawaz, and the respondent consented to the review being determined without a hearing.  The Tribunal, being satisfied that the issues for determination on the review of the decision can be adequately determined in the absence of the parties, has reviewed the decision by consideration of the documents and other material lodged with the Tribunal and without holding a hearing. 

3.      Mr Nawaz has been an Australian resident since 6 July 1991.  In the 21 years prior he was employed by Thames Water in the UK.  In 2004 on reaching age 60 he became entitled to the benefits from the Thames Water Superannuation Fund.  The entitlement consisted of a lump sum and an annual yearly indexed pension of UK £7045.  Subsequently, in May 2008, he became entitled to a UK age pension of UK £70.66 per week and an Australian Age Pension. 

4.      After some apparent confusion by Centrelink as to the correct treatment of the entitlement from Thames Water Superannuation Fund, it was determined in August 2008 that the gross amounts of that superannuation pension and the UK age pension should be treated as income for the purpose of arriving at the entitlement of Mr Nawaz to an Australian Age Pension.  Mr Nawaz sought review of this determination which was affirmed by an Authorised Review Officer on 9 October 2008. 

5.      The arguments of Mr Nawaz were primarily concerned with what he described as double deductions in relation to the Thames Water Superannuation Pension.  He maintains that his UK age pension is reduced by taking into account this pension and believes that it is inappropriate for the same pension to be treated as income so as to reduce his Australian Age Pension.  He argues further that a significant part of the superannuation pension has resulted from his own contributions to the fund over 21 years and is, effectively, the return of his own money. 

6.      Unfortunately for Mr Nawaz this same issue has been addressed by several decisions of this Tribunal and which have confirmed that gross income from overseas pensions is income for the purposes of the Social Security Act 1991 (the Act).  As such it is required to be taken into account as income in calculating the rate of pension entitlement.  These decisions include: -

·Sallan and Secretary, Department of Family and Community Services [1999] AATA 539

·Cremer and Secretary, Department of Family and Community Services [2001] AATA 509

·Rose and Secretary, Department of Family and Community Services (1999) 17 ALD 615

·Bersee and Secretary Department of Family and Community Services [2003] AATA 201

·Schwatschko and Department of Families, Community Services and Indigenous Affairs [2008] AATA 1048.

In Bersee, the Tribunal, after finding that the gross amount of an overseas pension must be treated as income, stated that:

Unfortunately for the applicant, the legislation as it stands appears to disadvantage those citizens who have made contributions towards their ultimate receipt of retirement pensions.  This position can only be rectified by a change in legislation. 

7.      It is clear that pensions received by Mr Nawaz from Thames Water Superannuation Fund and the UK Pensions Service are income within the normal meaning of the word and under s 8(1) of the Act.  While certain income streams are excluded, a foreign source pension is not included in the definition contained in s 9(1) of the Act.  The pensions in issue are no different to the pensions considered in the several decisions of this Tribunal noted above. 

8.      The fact that the UK government pension has been reduced as a consequence of the Thames Water pension cannot assist Mr Nawaz.  In the ultimate, the Australian Age Pension must be calculated after treating as income the combined amounts of the UK source pensions as income.

9.      It follows that the decision under review should be affirmed.

I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision herein of
B.H. Pascoe, Senior Member

Signed:         Dianne Eva
  Clerk

Dates of Hearing  14 July 2009
Date of Decision  3 August 2009
Self represented Applicant       Mr Khalid Nawaz

Solicitor for the Respondent     Mark Hester, Senior Legal Services Officer 

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