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

[2016] AATA 19

Kobayashi and Secretary, Department of Social Services (Social services second review) [2016] AATA 19 (21 January 2016)

Division

General Division

File Number(s)

2015/1858 and 2015/0776

Re

Shigeo Kobayashi

Kiyoko Kobayashi

APPLICANTS

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	21 January 2016
Place	Hobart

The decisions under review are affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security - overseas age pension - no valid claim made prior to International Social Security agreement coming into effect - decision under review affirmed

LEGISLATION

Social Security Act 1991 (the SS Act) s.43

Social Security (Administration) Act 1999 (the Administration Act) ss. 8, 11, 16, 29
Social Security (International Agreements) Act 1999, (the International Agreement)

CASES

Dorweiler and Sec, Department or Families, Housing, Community Services and Indigenous Affairs (2009) AATA324

Young and SDSS (2015) AATA528

Biddlecombe and Sec Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA451

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. On 19 January 2015 the Social Security Appeals Tribunal (SSAT) affirmed a decision made by the Department of Human Services - Centrelink (the Department) to pay age pension to Mr Kobayashi from the date of his claim and no earlier. On 25 March 2015 the SSAT similarly affirmed a decision made by the Department to pay age pension to Mrs Kobayashi from the date of her claim and no earlier. The Applicants are husband and wife and seek the review of the decisions of the SSAT.

2. The Applicants both reside in Japan and the hearing was conducted by way of telephone link. Mr and Mrs Kobayashi were represented by Mr Umeki, a practising lawyer and social security attorney in Japan. The Secretary was represented by Brian Sparkes. The T documents were tendered pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.

ISSUES

1. The issue for the Tribunal to determine is whether the Applicants can be paid Australian age pension at a time prior to the date of their claims in the absence of earlier valid claims.

BACKGROUND FACTS

The following facts as outlined in the Secretary’s Statement of Facts and Contentions were accepted by Mr Umeki on behalf of the Applicants.

(a)Mr Kobayashi was born in Japan and resided in Australia for about 13 years. He was living in Japan when he turned age pension age on 8 March 2015 and had been since at least 1998. Mrs Kobayashi turned age pension age in 2012 when she was also living in Japan with Mr Kobayashi.

(b)The International Social Security Agreement between Australia and Japan under the Social Security (International Agreements) Act1999, schedule 23 (the International Agreement) came into force on 01/01/2009.

(c)Both Applicants lodged claims for age pension under the terms of the International Agreement on 15/02/2014. The claims were granted and age pension was paid from the date of the claims. No other claims for age pension had previously been made by either of the Applicants.

CONTENTIONS

1. Mr Umeki identified the following three issues on behalf of the Applicants being as follows:

   (i)That Mr Kobayashi has not received age pension for the period since he turned 65 years of age and the coming into force of the International Agreement that is between March 2005 and January 2009.

   (ii)That Mr Kobayashi has not received age pension between the coming into force of the International Agreement and the date of his application for age pension that is between January 2009 and February 2014.

   (iii)That Mrs Kobayashi has not received age pension from the month she turned 64 years and six months of age and the date of her application for age pension that is between July 2012 and February 2014.

2. Mr Umeki contended that the Applicants’ case deserves special consideration because it is different from the normal run of cases. The four appeal points raised by Mr Umeki were:

   Firstly, that Mr Kobayashi had lived and worked in Australia since 1978 and should have been eligible for age pension when he turned 65 years of age as is the case in the UK, USA and a number of other countries.

   Secondly, that Mr Kobayashi should be afforded the same benefits as he would have received in Japan in particular, the retrospective payment of age pension for a period of five years.

   Thirdly, that there was insufficient notification of the coming into effect of the International Agreement between Japan and Australia and that every eligible person should have been informed of the provisions. Had Mr and Mrs Kobayashi known of the coming into effect of the International Agreement, they could have applied for age pension in January 2009.

   Fourthly, Mr Umeki cited paragraph 2 of Article 29 which refers to periods of Australian residency.

3. Mr Sparkes contended on the behalf of the Secretary that neither Applicant can be paid age pension prior to the date of their claims despite the coming into force of the International Agreement. He accepted that it was unfortunate that the Applicants had not lodged claims for age pension upon the coming into effect of the International Agreement because they were eligible to be paid as at that date. Mr Sparkes refuted Mr Umeki’s contention that the Applicants’ case is different from other cases for it is not uncommon for overseas residents to be unaware of an International Agreement and fail to claim the benefit although they may be qualified.

LEGISLATION

1. The relevant law is contained in the Social Security Act 1991 (the SS Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security(International Agreements) Act 1999 (the International Agreements Act).

2. Section 43 of the SS Act sets out the qualification criteria for age pension which includes a requirement that the person has reached age pension age and has at least ten years qualifying Australian residency. Section 11 of the Administration Act provides that a person must make a claim for a social security payment and section 16 sets out the provisions on how to make a claim which includes lodging a written claim for a payment. Section 29 of the Administration Act requires that a claim for a social security payment can only be made by a person who is an Australian resident and is in Australia. None of the other exclusion provisions apply in the Applicants’ circumstances.

3. The International Agreement which commenced on 1 January 2009 allows a person to claim an Australian age pension while residing in Japan.

CONSIDERATION

1. There is no dispute that Mr Kobayashi reached age pension age on 8 March 2005 or that he has at least ten year’s Australian residency. It is also agreed that Mrs Kobayashi met the qualification requirements for age pension in 2012. However, at the time Mr Kobayashi reached age pension age there was no International Agreement between Japan and Australia.  Mr Kobayashi was not entitled to make a claim for age pension until the coming into effect of the International Agreement on 1 January 2009, as he was not an Australian resident or residing in Australia at the time.

2. It was submitted by Mr Umeki that if Mr Kobayashi had been aware of the International Agreement between Australia and Japan in 2009 he would have lodged a claim for age pension which would have been granted. However there is no provision that permits payment of age pension in such circumstances where a written claim for payment has not been made.

3. The Tribunal in Dorweiler  and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2009) AATA324 confirmed that a social security payment may be granted retrospectively if the criteria established by section 42 of the Social Security (Administration) Act 1999 are met viz:

   (iv)A claim for a social security payment has been made; and

   (ii) The Applicant was qualified for payment on the date the claim was made.

4. The Tribunal understands that Mr Kobayashi is aggrieved at not receiving age pension following the coming into effect of the International Agreement because he was qualified to be paid, Mr Umeki was however unable to identify a provision in the Social Security legislation that permits the Tribunal to exercise any discretion and direct payment of age pension prior to the date of claim. Nor is there any provision for directing the payment of age pension for Mrs Kobayashi from the date she turned 64 years and six months of age, her qualifying age, and the date of her application for age pension in February 2014.

5. Of relevance is the Tribunal’s statement in Young and SDSS (2015) AATA 528 where it said:

   “However, I am unable to discern anything in that section which contradicts or overrides the more specific provisions of the Administration Act which require a person to make a written claim for payment and which provide for the limited circumstances in which a person may be paid from a date earlier than the date of claim. Nor am I aware of any other provision of the Act or the Administration Act which places a positive obligation on Centrelink to correctly advise members of the community as to their specific social security entitlements, or which provides for any consequences to follow from a failure to do so. In particular, I am unaware of any provision in the Social Security law which allows for an entitlement to be paid from the date on which a person could or should have been advised of their potential eligibility to such a payment.”

6. In this regard, I respectfully agree with the observations of Member Wulf in re – Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA 451, where he said at (21):

   “It is apparent that the provisions in s8 of the Administration Act only require Centrelink to provide general advice and information to the public about the availability of income support and social security payments. Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment and moreover, is not required to advise a client that they must fill in any additional forms.”

7. The Tribunal does not accept that there are any particularly unusual features in this case for it is not uncommon for qualifying age pensioners residing overseas to be unaware of the coming into effect of various International Agreements. The Tribunal must apply the law in force at the time of the Applicants’ claims in February 2014 and there is no provision for the Applicants’ claims to be backdated. It is simply irrelevant that the Applicants were unaware of the coming into effect of the International Agreement between Australia and Japan at the relevant time.

8. For all of the above reasons the Tribunal affirms the decisions under review that the Applicants were not entitled to be paid age pension prior to the date of their claims.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated   

Date of hearing	11 December 2015
Solicitor for the Applicants	Mr Umeki
Solicitor for the Respondent	Mr Brian Sparkes, Litigation and Review Branch