Lok Young (Michael) Wong v Minister for Immigration and Multicultural Affairs

[2006] AATA 27

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/648

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DARREN JOHN BURGESS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date16 January 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............Signed...............................

Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension – rent assistance – lump sum payment in advance not authorised

Social Security Act 1991: ss 23, 94, 117 & 1064

Social Security (Administration) Act 1999: s43

REASONS FOR DECISION

16 January 2006 Deputy President P E Hack SC    

1.      The Applicant, Mr Darren Burgess, is the recipient of a disability support pension. The pension paid to him includes a component of rent assistance. Payments of disability support pension (and other pensions) are ordinarily made by fortnightly instalments. Mr Burgess wants to be paid now, by way of lump sum, the rental assistance component of his pension that he would receive if he were to live to the age of 101 years, which he calculated to be his life expectancy.

2.      He applied to Centrelink to be paid in this way. His request was refused. The refusal was affirmed on internal review and by the Social Security Appeals Tribunal. Mr Burgess now applies to this Tribunal for a review of the decision of the Social Security Appeals Tribunal.

3. The parties have consented to the Tribunal determining the matter by reference to the documents and other material lodged in the Tribunal and without holding a hearing. I am satisfied, in terms of section 34J of the Administrative Appeals Tribunal Act 1975, that the issues for determination can be adequately determined in this way.

4.      In my view the decision of the Social Security Appeals Tribunal was correct and should be affirmed.

5.      The argument that Mr. Burgess advances is that, if he can be paid in the way that he suggests, he will be able to undertake the construction of an appropriate dwelling.  The argument, whilst novel, cannot be accepted. Public money cannot be paid except in accordance with statutory authority.

6. Part 2.3 of Chapter 2 of the Social Security Act 1991 deals with the disability support pension. In particular, section 94 sets out criteria to be satisfied to qualify a person for disability support pension. Then, section 117 provides that the rate of that pension is to be worked out, relevantly for present purposes, using Pension Rate Calculator A at the end of section 1064. That calculator, by reference to a series of steps, produces a rate of pension. Step 3 directs attention to the “amount per year  (if any) for rent assistance in accordance with paragraph 1070A(b).”

7.      It is unnecessary for present purposes to examine either the statutory scheme for calculating the amount of rent assistance or the statutory entitlements to receive it but two matters need to be noted. The first is that one of the requirements to be satisfied to qualify for payment is that the person pays, or is liable to pay, rent. The other is that rent assistance is not a divisible component of disability support pension; rather, as the section 1064 Rate Calculator makes plain, where a recipient is entitled to receive it, rent assistance becomes part of a total disability support pension rate.  Rent assistance is not, of itself, a “social security benefit”, a “social security entitlement”, a “social security payment”, or a “social security pension” as those terms are defined in section 23 of the Social Security Act.

8. It is now necessary to notice the mechanism for payment of a disability support pension. A disability support pension is, by virtue of the definition section 23 of the Social Security Act a “social security pension”. As such, it comes within the definition of “social security periodic payment” in clause 1 of schedule 1 to the Social Security (Administration) Act 1999.

9.      That Act, by section 43(1), provides as follows,

“(1) A social security payment is to be paid:

(a) in arrears; and

(b) by instalments relating to such periods (not exceeding 14 days) as the    Secretary determines.”

10.     There are some provisions in the Social Security Act, found in Part 2.22, that allow for limited payment in advance but those provisions do not authorise the Secretary to do that which Mr. Burgess seeks.

11.     It follows that the Secretary is not authorised under the Act to make the payment in the manner that Mr Burgess seeks. To do so would be to pay money out of public funds without statutory authority.

12.     Accordingly the decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  R. Hayes, Associate

Hearing on the Papers              
Date of Decision   16 January 2006
Applicant  Mr. Burgess, acting on his own behalf
Respondent  Ms. S. Oliver, departmental advocate