LJUBICA VRANIC and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 130

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4273

GENERAL ADMINISTRATIVE DIVISION		)
Re		LJUBICA VRANIC

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date2 March 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd].....................

Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – notional continuous period – Applicant not in receipt of benefits for six months – whether entitled to higher rate – no legislative discretion – decision under review affirmed.

Social Security Act 1991 (Cth), ss 17, 38B, 1068-B1, 1217, 1218AA

REASONS FOR DECISION

2 March 2009 Dr M Denovan, Member    

INTRODUCTION

1.      Ms Vranic was granted Newstart allowance at the lower rate with effect from 21 April 2008.  Prior to departing Australia on 18 October 2007, Ms Vranic was being paid Newstart allowance at the higher rate.  Ms Vranic believes she should have recommenced receiving Newstart allowance at the higher rate from 21 April 2008.

BACKGROUND

2.      Ms Vranic was paid Newstart allowance continuously from 1 January 1998 to 17 October 2007.  She was paid at the higher rate from 12 October 2006 to 17 October 2007.

3.      On 18 October 2007 Ms Vranic departed Australia.  Ms Vranic received no social security payments from 18 October 2007 to 20 April 2008.

4.      On 19 April 2008 Ms Vranic returned to Australia.  On 21 April 2008 she notified Centrelink of her intention to claim Newstart allowance.

5.      On 28 April 2008 Ms Vranic was granted Newstart allowance at the lower rate, with effect from 21 April 2008.

6.      On 24 June 2008 Ms Vranic asked for a review of the decision to pay her Newstart allowance at the lower rate, and on 22 July 2008 an Authorised Review Officer reviewed and affirmed the decision.

7.      Ms Vranic applied to the Social Security Appeals Tribunal (“the SSAT”) for review of the decision of Centrelink.  The decision was affirmed by the SSAT on 9 September 2008.

8.       The application for review of the decision by the Administrative Appeals Tribunal (“the Tribunal”) was lodged on 12 September 2008.

ISSUE FOR DETERMINATION

9.      The relevant legislation is contained in the Social Security Act 1991 (“the Act”).

10.     The issue that I have to decide is whether Ms Vranic can be paid at the higher rate of Newstart allowance from 21 April 2008.

EVIDENCE AND CONTENTIONS OF THE APPLICANT

11.     Ms Vranic contends that, as she was in receipt of Newstart allowance prior to her departure from Australia on 18 October 2007, she has in fact been in receipt of the benefit for more than nine months continuously, and therefore should have been paid at the higher rate when she returned to Australia in April 2008.

CONSIDERATION OF THE ISSUE

12.     It is not in dispute that Ms Vranic left Australia on 18 October 2007 and that she did not receive social security benefits from that time until 21 April 2008, when she had returned to Australia.

13. The maximum rate of Newstart allowance is worked out according to Table B, contained in section 1068-B1 of the Act. Table B provides that a person in Ms Vranic’s position (that is, one that is not a member of a couple, has no dependant children, has turned 60, and has not been receiving one or a combination of social security benefits for a continuous period of at least 9 months) is paid the lower rate of Newstart allowance.

14.     Ms Vranic asked the Tribunal to ignore the legislative requirements because, in her eyes, the effect of the legislation is unfair.

15. In some circumstances, the Act regards a person as having continued receiving an income support payment even when a short break in the receipt of social security benefits has occurred. Section 38B of the Act provides that, in certain circumstances, a recipient can be deemed to have continued receiving income support payment if the period in which they were not receiving payment was no longer than 13 weeks. As Ms Vranic was not in receipt of social security payments for a period of approximately six months, this provision does not apply to her. The Tribunal has no legislative discretion in this matter.

16.     As Ms Vranic had not been continuously in receipt of Newstart allowance when she claimed on 21 April 2008, she was not entitled to the higher rate of Newstart allowance and will continue to be eligible only for the lower rate until at least 22 January 2009.

FINDINGS OF THE TRIBUNAL

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ...........................[Sgd]..............................................
  Matyas Kochardy, Research Associate

Date of Hearing  6 February 2009
Date of Decision  2 March 2009
The Applicant was self represented
For the Respondent                  Mr R McQuinlan, Departmental Advocate