Larner and Secretary, Department of Family and Community Services
[2001] AATA 329
•2 April 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/378
GENERAL ADMINISTRATIVE DIVISION )
Re MAVIS MARIE LARNER
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date2 April 2001
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
W J F PURCELL
Senior Member
CATCHWORDS
SOCIAL SECURITY – Whether applicant qualified to receive bereavement payment – applicant in receipt of age pension - whether applicant's partner was a long term social security recipient or was in receipt of a social security or service pension.
Social Security Act 1991 ss23, 82
ORAL REASONS FOR DECISION
2 April 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 24 August 2000, which affirmed the decision of an Authorised Review Officer of 3 July 2000, not to pay the applicant bereavement payment.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant appeared on her own behalf at the hearing with the assistance of her son, Mr Larner. Ms Odgers represented the respondent (the Department.)
The applicant, who was born on 1 January 1930, applied for age pension at the age of 70 on 15 March 2000. Her husband, was 8 years younger than the applicant, being born on 31 January 1938 and aged 62. The applicant was granted Age Pension on 16 March 2000. Her husband was granted Partner Allowance on the same day. The applicant's husband died on 8 April 2000, less than 3 weeks after the grant of the pension and allowance.
The applicant lodged a claim for Bereavement Payment on the advice of a Departmental officer. On 26 May 2000 her claim was rejected on the basis that her late husband was not a long-term social security allowance recipient; and she did not satisfy the criteria for payment of bereavement payment. On 5 June 2000 the applicant sought review of the decision and an Authorised Review Officer affirmed the decision on 3 July 2000. She applied for further review to the SSAT which affirmed the decision on 24 August 2000. She has applied to this Tribunal for review of the decision of the SSAT.
The legislation applicable in this matter are sections 23 and 82 of the Social Security Act 1991 (the Act). Section 82 sets out the criteria that must be satisfied in order for a bereavement payment to be made, and as far as is relevant for the purpose of this review, provides:
"82 Qualification for payments under this Subdivision
82(1) If:
(a) a person is receiving an age pension; and
(b) the person is a member of a couple; and
(c) the person's partner dies; and
(d) immediately before the partner died, the partner:(i) was receiving a social security pension; or
(ii) was receiving a service pension; or
(iii) was a long-term social security recipient; and
(e)on the person's payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:
(i)the amount that would otherwise be payable to the person under section 85 (person's continued rate) on that payday; and
(ii)the amount that would otherwise be payable to the person under section 83 (continued payment of partner's pension or benefit) on the partner's payday immediately before the first available bereavement adjustment payday;
the person is qualified for payments under this Subdivision to cover the bereavement period.
…
82(5)For the purposes of this section, a person is a long term social security recipient if:
(a) the person is receiving a social security benefit; and
(b) in respect of the previous 12 months, the person:(i) was receiving a social security pension; or
(ii) was receiving a social security benefit; or
(iia) was receiving a youth training allowance; or(iii) was receiving a service pension.
82(6) A person is taken to satisfy the requirements of paragraph (5) (b) if:
(a)the person was receiving one or a combination of the payments referred to in that paragraph for a continuous period of 12 months; or
(b)the person was receiving one or a combination of the payments referred to in that paragraph for 46 weeks of the previous 52."
Section 23(1) of the Act defines Social Security Benefits as:-
"social security benefit means:
(aa) widow allowance; or
(aab) youth allowance; or
(aac) austudy payment; or
(a) newstart allowance; or
(c) sickness allowance; or
(d) special benefit; or
(e) partner allowance; or
(ea) a mature age allowance under Part 2.12B; or
(f) benefit PP (partnered); or
(g) parenting allowance (other than non-benefit allowance)."
The Department accepts that the applicant meets the requirements of s82(1)(a) of the Act, as she is in receipt of an Age Pension, and she meets the requirements of s82(1)(b) and (c) of the Act as she is a member of a couple and her partner has died. The Department contends, however, that the applicant does not meet the requirements of s82(1)(d) of the Act as the applicant's partner was not in receipt of a Social Security Pension; was not receiving Service Pension, and was not classified as a long term Social Security recipient. Whilst the applicant's husband was receiving a partner allowance at the date of his death, which is defined as a Social Security Benefit pursuant to section 23(1)(e) of the Act, he had only received the benefit for a few weeks before his death, thus did not have "Social Security recipient status" for a period of 52 weeks immediately preceding his death. Accordingly, the Department contends the applicant does not satisfy the requirements of section 82 of the Act.
The applicant, in the course of her written applications for review of the decision, both internally and to the SSAT, has at all times questioned the fairness and logic of the decision. In particular, she cannot see the logic of denying bereavement payment to an Age Pensioner simply because her husband was a recipient of a Social Security allowance, rather than being a recipient of a Social Security pension or a "long term Social Security recipient". It is clear that the financial difficulties associated with the death of her husband did not differ, regardless of how his Partner Allowance was classified in the legislation, and she cannot understand why the legislation would discriminate between the two different categories of payments.
The SSAT in the course of its Reasons for Decision stated:-
"DISCUSSION OF THE EVIDENCE
It was apparent to the Tribunal that Mrs Larner had only made an application for bereavement payment on the advice of Centrelink that this payment existed. It was also apparent that the information generally available to the public about the payment is not specific enough to alert someone in Mrs Larner's situation that she would not be entitled to the payment. The use of the phrase "pensioner couple" may be intended to indicate that the payment is only available if both members of the couple were receiving a pension. However, the information is ambiguous.
The Tribunal was concerned that Mrs Larner had been sent out incorrect forms and had been treated somewhat hastily by Centrelink staff when she was in a particularly vulnerable state, being recently bereaved. The Tribunal noted however, that one particular Centrelink officer had been of great assistance and support to Mrs Larner and she had very much appreciated this.
The Tribunal shared Mrs Larner's puzzlement as to why the legislation would be drafted so as to make a payment available to a bereaved pensioner if their partner had received a pension and to make it unavailable to a bereaved pensioner whose partner had been on an allowance or benefit less than a year. The Tribunal readily accepted that the difficulties and costs for a person in either situation could be equivalent. This particular legislative requirement would not necessarily distinguish between those with and those without the financial means to manage the first months of bereavement." (T2/7-8)The applicant's late husband was aged 62 at the time of his death. He was not in receipt of a pension, but of Partner Allowance, as the partner of an Age Pensioner. He had been in receipt of the allowance for less than 3 weeks. In accordance with s82(1) of the Act, the applicant as a person receiving Age Pension whose partner has died, is qualified for payment under the subdivision to cover the bereavement period if the partner was receiving a Social Security pension or a Service pension, or was a long term Social Security recipient. He was a Social Security recipient because in accordance with s23(1) of the Act he was in receipt of Partner Allowance. He had not been in receipt, however, of such benefit for the previous 12 months.
I appreciate the applicant's concerns that the legislation has worked harshly in her circumstances; but I am obliged to apply the legislation, and in my view, in the circumstances of her case, the applicant does not satisfy section 82 of the Act.
For these reasons the Tribunal affirms the decision under review.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member).
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 2 April 2001
Date of Decision 2 April 2001
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms Odgers
Solicitor for the Respondent Centrelink
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