Larubina and Department of Family and Community Services - [2001] AATA 813

DECISIONS AND REASONS FOR DECISIONS [2001] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/764
  Nº V2001/765
GENERAL ADMINISTRATIVE DIVISION
  Re:         PASQUALE LARUBINA AND
  ELSA LARUBINA
  Applicants
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISIONS

Tribunal:       M.J. Carstairs, Member
Date:             20 August 2001
Place:            Melbourne

Decisions:For reasons given orally at the hearing, the decisions under review are affirmed.

(sgd) M.J. Carstairs
Member
SOCIAL SECURITY — age pension - arrears - start date for claim - date of effect of increase in rate - request for review
Social Security (Administration) Act 1999 ss11,13,110, and Clause 3 of Schedule 2

REASONS FOR DECISIONS

20 August 2001 M.J. Carstairs, Member

Pasquale Larubina and Elsa Larubina (the applicants) seek review of decisions of the Social Security Appeals Tribunal (the SSAT) dated 14 June 2001 affirming decisions of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) setting certain dates of effect for the applicants' age pensions.
At the hearing of this matter on 20 August 2001 Mr and Mrs Larubina represented themselves. An interpreter assisted Mrs Larubina in the Italian language. Both applicants gave oral evidence. The respondent was represented by its advocate Ms P. D'Cunha.
The Tribunal had before it the documentation lodged under s37 of the Administrative Appeals Tribunal Act 1975. Additionally, computer records from the files of the applicants were taken into evidence (Ex. 1).
Mr Larubina had expressed an intention to withdraw his application however his application was reinstated on the day of hearing. At the end of the hearing, oral reasons for decision were given by the Tribunal. Mr Larubina requested written reasons on 20 August 2001.
BACKGROUND
Mr Larubina was in receipt of WorkCover payments for a workplace injury until 5 March 2001 when he turned 65 years of age. His wife has received age pension since 1995.
On 15 March 2001 Mr Larubina contacted Centrelink and advised that compensation payments from WorkCover had ceased. On 19 March 2001 he lodged a claim for age pension (T8).
A decision was made on 5 April 2001 to pay age pension to Mr Larubina from 15 March 2001. The rate of Mrs Larubina's age pension was increased from 19 March 2001.
The applicants sought review of those decisions. On 5 May 2001 an authorised review officer affirmed the decision that Mr Larubina's age pension was correctly granted from 15 March 2001. The review officer varied the date from which the rate of Mrs Larubina's age pension should be increased to an earlier date, namely 15 March 2001, being the date at which a change of circumstances was advised to Centrelink.
The applicants sought further review of these matters with the SSAT, which affirmed the decisions made by Centrelink. They then sought review with the Tribunal on 25 June 2001.
EVIDENCE
Mr Larubina told the Tribunal that he received no notice of the cessation of payments from WorkCover until after the payments ceased. He was not aware that payments would cease when he reached at age 65. The matter came to Mrs Larubina's attention when she went to withdraw money from the bank account into which the compensation payments were paid and found a lesser amount in the account than anticipated.
The applicants said they told Centrelink on 15 March 2001 that the compensation payments had ceased. Centrelink provided Mr Larubina with an age pension claim form and he lodged it a few days later. He said that he accepted that he could only be paid from the time of his claim for age pension but considered that his wife should be paid from the time that the compensation ceased because she was already on age pension. He said that someone should have advised them, especially as he was nearing the age of 65 years. He had been to discuss things with Centrelink at other times. He considered that he should have been offered the advice to claim age pension.
A computer entry showed that Mr Larubina had been to see a Financial Information Services Officer (FIS Officer) at Centrelink on 19 January 2001. A computer entry on that date showed "Customer wishes to discuss financial details". The FIS Officer Mr Gregory Godfrey gave evidence by telephone that he had no recollection of the interview specifically, but had dealt with Mr Larubina on a number of occasions. He said that his role as a FIS Officer at Centrelink was to discuss options with customers but not to give advice or recommendations. Mr Larubina confirmed with Mr Godfrey in the course of his evidence that Mr Larubina had gone to see the FIS Officer to discuss better ways to invest Mr Larubina's superannuation and to discuss allocated pensions. Mr Larubina said that he had subsequently rearranged his financial affairs more favourably after these discussions with Mr Godfrey.
CONSIDERATION OF THE ISSUES
The legislation to be applied in setting the dates of effect for pension payment is to be found in the Social Security (Administration) Act 1999 (the Act). Under section 11 of that Act it is necessary for a person to make a claim in order to be paid pension, however an earlier contact can be deemed as a claim if the person lodges the claim within 14 days of the first contact (s13 of the Act). Clause 3 of Schedule 2 of the Act provides:
Start day—general rule
3. If:
(a)a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
After hearing from both Mr and Mrs Larubina, the Tribunal is satisfied, and indeed, it was not disputed between the parties that Mr and Mrs Larubina went to Centrelink as soon as they became aware that the payments of WorkCover had ceased. The Tribunal is satisfied that contact was made with Centrelink on 15 March 2001. Mr Larubina then completed and lodged a formal claim on 19 March 2001.
In Mr Larubina's case because s13 of the Act recognises the earlier contact, that is the date of effect for his claim for age pension. It is the earliest date that can be applied under the Act and there is no discretion available to set any other date.
In regard to Mrs Larubina's age pension different provisions apply to it because she was in receipt of a payment, not making a claim. Particular provisions in the Act provide for changes to rates of payment, depending upon whether the decision is one that is favourable to the recipient or unfavourable. A decision that increases the rate of payment (as occurred with Mrs Larubina's age pension) is a favourable determination and on the facts here, the increase resulted from the applicants giving information about a change of circumstances.
Section 110(1) of the Act provides:
110.(1) Subject to subsections (2) to (11) (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:
(a)on the day on which the person so informed the Department; or
(b)on the day on which the event or change occurred;
whichever is the later.
The Tribunal is satisfied that the information provided on 15 March 2001 that circumstances had changed because Mr Larubina was no longer receiving WorkCover payments allowed for a favourable determination to be made with respect to Mrs Larubina's age pension. Section 110 means that the date to be set is the date that the Larubinas advised Centrelink of that change, as the later of two possible dates must be applied. The later date in this case is the date that the change of circumstances was advised to Centrelink, namely 15 March 2001.
Mr Larubina submitted that because Mrs Larubina was already in receipt of age pension an earlier date might be set because of contact made with the Centrelink FIS officer in January 2001. In some circumstances contact with Centrelink can be taken as a request for review. However the evidence concerning the discussions at the meeting with the FIS Officer could not be characterised as a request for review of the rate of age pension being paid to Mrs Larubina, nor was it informal contact for a claim for age pension for Mr Larubina. Mr Larubina's own recollection was that the discussions in January with Mr Godfrey were about better arrangements for Mr Larubina's financial investments and his superannuation.
The Tribunal therefore is satisfied that the interview in January and the nature of the enquiries made at that time were for general financial information. No enquiries were made that could be taken as a request to review Mrs Larubina's rate of pension or to seek an age pension for Mr Larubina. This is consistent with Mr Larubina's evidence that he had no idea that WorkCover payments were to cease when he turned 65. The obligations on Centrelink are not unlimited in situations such as that described as occurring in the January interview with the FIS officer. There was no obligation for any greater exploration of the circumstances by Mr Godfrey.
For these reasons the Tribunal decides that the earliest date that can be set as the start date for Mr Larubina's age pension is 15 March 2001, and that date also applies for an increase in the rate of Mrs Larubina's age pension.
DECISIONS
The decisions under review are affirmed.
I certify that the twenty-two preceding paragraphs are a true copy of the reasons for the decisions herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing  20 August 2001
Date of Decision  20 August 2001
Solicitor for the Applicant            NIL — SELF-REPRESENTED
Solicitor for the Respondent        NIL — Ms P. D'Cunha, Advocate with Centrelink