Koperski and Secretary to the Department of Family and Community Services

[2003] AATA 192

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 192

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1670

GENERAL ADMINISTRATIVE DIVISION

Re:         LEONARD RAJMUND KOPERSKI

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             27 February 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY - age pension - portability - reduction in rate of pension - savings provisions - requirement to be absent from Australia immediately before 20 September 2000

Social Security Act 1991 ss1213(1), 1213(2), 1220A, 1220B(1), 1220B(3), 1221-B1 to B4,

1221-C2, schedule 1A

Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters)

Act 2000

REASONS FOR DECISION

27 February 2003  G.D. Friedman, Member

1.      This is an application by Leonard Rajmund Koperski (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 November 2001.  The SSAT affirmed a decision of Centrelink dated 16 August 2001 to reduce the applicant’s rate of age pension to 201/300ths of the maximum rate with effect from 1 September 2001.

2.      The applicant resides in Poland and was not present at the hearing of this matter on 14 February 2003.  Ms M. Piskozub, an authorised nominee, presented the applicant’s case and Ms R. Bradley, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T57).   

BACKGROUND

4.      The applicant was born on 6 November 1926 and arrived in Australia on 21 February 1975.  He was granted age pension on 21 November 1991 and has been in receipt of age pension since that date.  On 16 March 1999 the applicant departed Australia to live in Poland.  On 15 January 1999 Centrelink advised the applicant that the pension would be paid indefinitely and the basic rate would not be subject to change.

5.      On 11 August 2000 Centrelink received a letter dated 1 August 2000 from the applicant advising of his intention to visit Australia on 6 September 2000 for a period of six months.    On 16 August 2000 Centrelink contacted the applicant by telephone and advised him that changes in the legislation relating to the portability of pensions after 20 September 2000 would have the effect that if he travelled to Australia before 20 September 2000 and returned to Poland after six months his age pension would be reduced by about one-half.  On 15 September 2000 the applicant advised Centrelink that he had arrived in Australia on 6 September 2000.

6.      On 6 February 2001 the applicant advised Centrelink that he would be returning to Poland on 1 March 2001.  On the same date Centrelink advised him that his age pension was portable without any rate reduction, on the basis that he was subject to pre-20 September 2000 portability rules and Centrelink believed that he was overseas on 20 September 2000.

7.      On 20 February 2001 Centrelink decided that the applicant was subject to the new portability rules because he had been in Australia on 20 September 2000, and advised him that his pension would be proportional after 26 weeks’ absence from Australia.  As he had an Australian working life residence of 201 months, the applicant’s pension became proportional at the rate of 201/300ths on 1 September 2001.  The applicant sought review of the decision and the decision was affirmed.

8.      On 6 August 2001 the authorised review officer affirmed the decision, and on 16 August 2001 Centrelink decided to reduce the applicant’s age pension with effect from 1 September 2001.  On 25 September 2001 the applicant sought review by the SSAT.  Following the decision by the SSAT, the applicant lodged an application with the Tribunal on 27 December 2001.

EVIDENCE

9.      Ms Piskozub stated that the applicant is a retired priest in the Dominican Order.  In March 1999 he was posted to Poland by the ecclesiastical authorities.  She said that he was invited to attend the wedding of a former parishioner in Melbourne, to be held on 27 September 2000.  As she was aware that changes were proposed to legislation concerning portability of pensions, she attended the Sunshine office of Centrelink on 22 May 2000 to make enquiries.  She said that she was assured that the applicant would not be affected by the changes as long as he left Australia within 26 weeks of his arrival.  She told the Tribunal that for this reason she arranged for the applicant to arrive on 6 September 2000, as a fellow clergyman was travelling to Australia on that date.  She said that she and the applicant visited Centrelink on 8 September 2000 and 6 February 2001, and Centrelink officers made no reference to the implications of the applicant’s arrival before 20 September 2000.

10.     Ms Piskozub said that the applicant was not informed, until receipt of a letter dated 20 February 2001, that the advice received earlier was incorrect.  She acknowledged that on 16 August 2000 Centrelink contacted the applicant by telephone in response to his letter dated 1 August 2000, but stated that no interpreter was provided, and the applicant did not understand the information given to him.  She said that the applicant was clear in his own mind that he was complying with the advice given to him by Centrelink.  He would have delayed his visit if he had known of the consequences of arriving in Australia a fortnight before, 20 September 2000.  She said that he should not be disadvantaged by errors made by Centrelink, and that he has suffered stress and other health problems.

CONSIDERATION OF THE ISSUES

11. Part 4.2 of the Social Security Act 1991 (the Act) sets out the portability provisions relating to pensions payable to a person residing overseas. There was no dispute between the parties that when the applicant left Australia in March 1999 he was an Australian resident on 8 May 1985 (the cut-off date specified in the Act) and was to reside in Poland, with whom Australia did not have a reciprocal agreement. Therefore, his age pension was payable while he was overseas without a reduction in the rate of payment (s1213(1), 1213(2), 1220B(1) and 1220B(3) of the Act).

12.     The Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (the Amendment Act) amended the portability provisions from 20 September 2000 and provided that a person’s maximum portability period for the payment of age pension was unlimited (s1214(1)). However, the person’s rate of payment may be affected after 26 weeks’ absence from Australia (s1220B), depending on the period of the person’s working life residence in Australia (s1221-C2 of the Act).

13. Ms Bradley submitted that the applicant resided in Australia from 21 February 1975 and turned 65 years on 6 November 1991, giving him a working life residence of 201 months (s1221-B1 to 1221-B4 of the Act) and a residence factor of 0.67 (201/300ths). She said that the applicant returned to Australia on 6 September 2000 and departed for Poland on 1 March 2001. On 30 August 2001 he had been absent from Australia continuously for a period of 26 weeks, so his age pension was reduced to 201/300ths of the maximum rate from 1 September 2001.

14. Clause 128 of Schedule 1A of the Act (as inserted by the Amendment Act) contains savings provisions of portability rules relating to rates of pension, and provides:

128.        Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B and 1221 of this Act made by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, if:

(a)a person was absent from Australia immediately before 20 September 2000; and

(b)at a time (the post-start time) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000;

those provisions continue to apply to the person at the post-start time as if those amendments had not been made.

15.     Ms Bradley agreed that, as the applicant had returned to Australia on 6 September 2000 and departed on 1 March 2001, he was in Australia for less than  26 weeks.  However, she submitted that as he arrived in Australia on 6 September 2000 he was not absent from Australia immediately before 20 September 2000, so the savings provisions do not apply to him. 

16.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

17.     The Tribunal acknowledges that the applicant may have misunderstood the advice given to him by Centrelink on 16 August 2000, and would have delayed his arrival in Australia until after 20 September 2000 if he had had a complete understanding of the consequences of arriving before that date.  The Tribunal also accepts that this matter has contributed to a degree of stress and anxiety for the applicant.  However, the Tribunal accepts the submission from Ms Bradley that the savings provisions of the amended legislation do not apply to the applicant because he was not absent from Australia immediately before 20 September 2000.  Therefore the correct rate of age pension is 201/300ths of the maximum rate with effect from 1 September 2001.

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  14 February 2003

Date of decision:  27 February 2003
Advocate for applicant:                Ms M. Piskozub
Advocate for respondent:            Ms R. Bradley, Centrelink