Lane and Secretary, Department of Family and Community Services

[2004] AATA 291

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/600

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HEINZ LANE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date 19 March 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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Senior Member

CATCHWORDS

SOCIAL SECURITY – Social security payments – applicant in receipt of German pension for injuries sustained in war – whether German pension exempt from definition of “income” in s8 Social Security Act 1991 (Cth) - whether German pension exempt from calculation of income under Article 8(4) Social Security Arrangement between Australia and Germany  and section 9(b) Administrative Arrangement for the Implementation of the Agreement on Social Security between Australia and Germany

Social Security Act 1991 (Cth)

Social Security Arrangement between Australia and Germany

Administrative Arrangement for the Implementation of the Agreement on Social Security between Australia and Germany

REASONS FOR DECISION

19 March 2004 Senior Member B J McCabe         

1.      This is an appeal of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 01 July 2003, which affirmed the respondent’s decision on 13 March 2003 to include the applicant’s German pension payments as “income” when calculating the Australian age pension.

2.      The Tribunal heard the matter in Coolangatta on 30 January 2004.  The applicant represented himself. He was assisted by a German translator, and by his daughter. The respondent was represented by Ms Helen Wallis-Dunn, a departmental advocate.

3. The Tribunal had before it documents lodged pursuant to s37 Administrative Appeals Tribunal Act 1975.  The only other document exhibited was from the Authority for Social Welfare and Family Affairs in Germany, which acknowledged the applicant was in receipt of a pension from the Federal Republic of Germany.

The Facts

4.      The applicant was born in Germany in 1922.  He was conscripted into the German army during the Second World War.  He was wounded in action on several occasions.  He has been in receipt of a pension from the German government since 2 April 1987.  The pension is paid by way of compensation for his injuries.  The applicant says ex-soldiers are not otherwise entitled to a pension.

5.      The applicant’s German pension has been taken into account in the assessment of the rate of his Australian age pension since at least 11 July 1996.

6.      On 16 October 2002 the applicant contacted Centrelink and advised he believed his German pension should not affect his Australian age pension.  On 2 April 2003 the original decision-maker reviewed the decision to regard the German pension as income, and affirmed the decision.  On 4 April 2003 the applicant requested a review of the decision, and on 11 April 2004 an Authorised Review Officer reviewed and affirmed the decision.  The applicant appealed to the SSAT on 10 June 2003.  The SSAT affirmed the decision on 20 June 2003.  The applicant has now applied to this Tribunal for review of the SSAT decision.

The Law

7.      There are two relevant areas of law to consider: the law under the Social Security Act 1991 (Cth) (“the Act”), and the Social Security Arrangement between Australia and Germany  (“the international Arrangement”).

The Social Security Act 1991 (Cth)

8. Section 8(1) of the Act defines income as

a.) an income amount earned, derived or received by the person for the person's own use or benefit; or

(b) a periodical payment by way of gift or allowance; or

(c) a periodical benefit by way of gift or allowance.

Subsections (4), (5) and (8) of section 8 contain exemptions to this broad definition.

9. Section 8(2) of the Act provides

A reference in this Act to an income amount earned, derived or received is a reference to:

(a)  an income amount earned, derived or received by any means; and

(b) an income amount earned, derived or received from any source (whether within or outside Australia).

10. Section 8(8) lists a number of items that are not considered income for the purposes of the Act. The most relevant exception is contained in paragraph (n), which excludes:

an amount paid:

(i)        by the Federal Republic of Germany under the laws of that Republic; or

(ii)       by a State of the Federal Republic of Germany under the laws of that State;

by way of compensation for a victim of National Socialist persecution;

The International Arrangement

11.     I now turn to the International Arrangement.  Article 8(4) of the Arrangement states:

Where an Australian benefit is payable, whether by virtue of this Agreement or otherwise, to a person who ordinarily resides in the Federal Republic of Germany, Australia shall disregard, when assessing the income of that person, any German social assistance and payments of a similar character provided in case of need…

12.     The Administrative Arrangement for the Implementation of the Agreement on Social Security between Australia and Germany, which was created pursuant to Article 16(6) of the Agreement, clarifies Article 8(4).  Section 9 provides:

The following qualify as German social assistance…provided in the case of need in accordance with Article 8, paragraph 4 of the Agreement:…

b.) Welfare benefits for war victims in accordance with the Federal War Victims Relief Act (BVG)

Findings of the Tribunal

13. The definition of ‘income’ under s8(1) of the Act is very broad. The German pension payments must be included in the absence of an exemption.

14. The applicant submitted his pension may be exempted because it is paid by way of compensation for persecution by the National Socialist regime, and therefore falls within the scope of s 8(8)(n). The applicant submitted his service in the German army was not voluntary, because he was conscripted. He says that conscription amounted to persecution.

15. While being conscripted into the German Army during World War II was almost certainly a dreadful experience, without more it does not amount to persecution. In any event, the information provided by the applicant makes it clear the applicant receives a pension not by way of compensation for persecution, but for injuries sustained during wartime. Therefore the pension is not exempt under s8(8)(n) of the Act.

16.     I now turn to the International Arrangement.  Article 8(4) instructs the relevant Australian authority to disregard any German social assistance payments when assessing the income of an individual “who ordinarily resides in the Federal Republic of Germany”, if they are “provided in case of need”.

17.     I accept that under section 9(b) of the Administrative Arrangement for the Implementation of the Agreement on Social Security between Australia and Germany, the applicant’s pension is paid “in case of need”.

18.     The second criterion requires the applicant to establish that he “ordinarily reside[s] in the Federal Republic of Germany”.  The applicant said he left Germany in 1953. He has since returned to Germany for visits on several occasions, but he has spent no more than a total of one – maybe two – years there.  He suggested this would be enough to satisfy the requirement that he “ordinarily resides” there.

19.     The term “ordinarily resides” is not defined in the international Arrangement.  I therefore look to the plain meaning of the words.  The meaning of “resides” is self-evident. A person who resides in a place lives there. “Ordinarily” is defined in the Oxford English Dictionary as meaning “in the ordinary or usual course of events; in most cases; usually, commonly.”

20.     The applicant does not “ordinarily reside” in the Federal Republic of Germany.  He ordinarily resides in Australia. This country is his home now, and has been for some time. Therefore the German pension cannot be disregarded when assessing the applicant’s income.

21. It became apparent during the course of submissions that the applicant feels aggrieved because he perceives he is being treated differently (and therefore unfairly) when compared to an Australian ex-servicemen who was in receipt of a disability pension. Ms Wallis-Dunn acknowledged that under the legislative scheme covering veterans, an Australian ex-serviceman’s disability pension would not necessarily affect his or her entitlement to the equivalent of the aged pension available to veterans. Mr Lane does not suggest he should receive an Australian ex-serviceman’s pension, but he believes he should be treated the same way when Centrelink assessed his entitlement under the Social Security Act 1991.

22.     Unfortunately for Mr Lane, the veterans’ and social security legislation does not treat the two cases in the same way. The applicant cannot be put in the same position as an Australian ex-serviceman for the simple reason that he was not an Australian ex-serviceman. He fought for another country in a different army, however reluctantly.

conclusion

23. The applicant’s pension is not exempt from the definition of “income” under s8 of the Act. Nor is it exempted by the International Arrangement. The pension must therefore be taken into account in the calculation of his entitlements. The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 30 January 2004
Date of Decision: 19 March 2004
The Applicant represented himself.           
The Respondent was represented by Ms Wallis-Dunn, a Departmental advocate.