LUDKA BROTHERSTON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 427

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0101

GENERAL  ADMINISTRATION  DIVISION		)
Re		LUDKA BROTHERSTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr Egon Fice, Senior Member

Date9 June 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Senior Member

Social Security – low income healthcare card – qualification – ascertained income – allowable income - discretion

REASONS FOR DECISION

9 June 2010 Mr Egon Fice, Senior Member      

1. In accordance with s 34J of the Administrative Appeals Tribunal Act 1975, the parties agreed that the Tribunal should determine this matter in their absence by considering the documents and other material lodged at the Tribunal and without holding a hearing.

2.      On 25 September 2009 Mrs Brotherston lodged an application for a Healthcare card with Centrelink, on the grounds that she was a low income earner.  That application form clearly states, in its preamble, that eligibility for the low income Healthcare card is based on an applicant’s income over the eight weeks immediately before the date the claim is lodged.  To be eligible, an applicant’s income must be below the limit which applies at that time. 

3.      Mrs Brotherston provided Centrelink with copies of pay advices from her employer, Robert Half Australia Pty Ltd, for the pay periods 2 August 2009 to 20 September 2009.  The gross income received by Mrs Brotherston during that period was $6,057.79. 

4.      In a letter dated 29 September 2009, a Centrelink officer explained to Mrs Brotherston that her income was above the allowable limit to qualify for the Healthcare card and Centrelink therefore rejected her application.   Mrs Brotherston’s claim was reviewed by an Authorised Review Officer (ARO) who, on 23 October 2009, affirmed the decision to refuse Mrs Brotherston a Healthcare card.  The ARO’s decision was reviewed by the Social Security Appeals Tribunal (SSAT), which decided on 26 November 2009 to affirm the ARO’s decision.  Mrs Brotherston now seeks a review of the SSAT decision by this Tribunal.

5.      Mrs Brotherston did not dispute Centrelink’s calculation of her income in the eight-week period immediately prior to her application. Nor did she dispute that her income exceeded the limits set out in the Social Security Act 1991 (the Act).  The only ground upon which she seeks review is that she finds herself in a precarious financial position where she is not able to earn sufficient funds to be able to afford medication and doctor’s visits after meeting her living expenses.  She said this in her letter attached to her application:

I beg of you to reconsider my request on humanitarian basis and approach it from individual’s point of view and not simply to protect the system, which I believe is made for people and yet I am one of them who does not seem to have voice.

THE LEGAL POSITION

6.      To qualify for a Healthcare card on the grounds of low income an applicant must satisfy the provisions set out in s 1061ZO of the Act.  Insofar as it is relevant to Mrs Brotherston’s case, the section provides that:

1061ZO Qualification

(1)A person is qualified for a health care card on a day if this section applies to the person on that day.

(2)This section applies to a person on a day if, on that day:

(a)…

(b)in the case of a person other than a child—the person is:

(i)an Australian resident or a special category visa holder residing in Australia; and

(ii)in Australia; and

(c)the person is neither an FTB child, nor a regular care child, aged over 16 years; and

(d)the person satisfies the health care card income test.

7.      There is no issue about Mrs Brotherston being an Australian resident and she presently resides in Australia.  The only issue is whether she is able to satisfy the Healthcare card income test. 

8.      The Healthcare card income test calculator is set out at s 1071A-1 of the Act.  It is this section which explains how to work out whether the person claiming a Healthcare card satisfies the income test on the day on which the person claims the card.  In effect, there are four steps, which I have paraphrased below.

Step 1Calculate the person’s ascertained income for a period of eight weeks ending on the day on which the person lodged the claim.

Step 2Work out the amount of the person’s allowable income for the period. 

Step 3If the person’s ascertained income for the period is less than the allowable income for the period, the person satisfies the Healthcare card income test. 

Step 4If the person’s ascertained income for the period equals or exceeds the allowable income for the period, the person does not qualify for the Healthcare card income test.

9.      The expression ascertained income is defined in s 1071A-4 of the Act.  In relation to a given period, it is defined as the income of a person who is not a member of a couple, in that period.  Income is also defined and it means, insofar as it is relevant to Mrs Brotherston’s case, ordinary income.

10.     The expression allowable income is also defined in s 1071A-4.  It means, in relation to any period of eight weeks:

(a)…

(b)in relation to a person who had no dependants on the last day of the period—the amount worked out by multiplying by 8, or such other number as is prescribed, an amount equal to 60%, or such other percentage as is prescribed, of the aggregate of the amount worked out under subparagraph (a)(i) and the amount referred to in subparagraph (a)(ii) if paragraph (a) had applied to the person.  …

11.     Mrs Brotherston indicated on her application form that she did not have any dependants. 

12.     Paragraph (a)(i) and (ii) of s 1071A-4 provide:

(i)the amount of the weekly rate of income that would, on the last day of the period, be sufficient to prevent both members of a one-income couple from receiving newstart allowance; and

(ii)       $20, or such other amount as is prescribed; …

13.     According to Centrelink, and this is not disputed, the allowable income for the period ending on 16 September 2009, being the weekly rate of income which would prevent both members of a one income couple from receiving Newstart Allowance, was $450 per week or $3,600 in eight weeks.  Therefore, by applying the formula set out in s 1071A-4(b) of the Act, Mrs Brotherston’s allowable income for the period is 60 per cent of $3,600 plus $20.  That equates to $2,172.

14.     Quite plainly, Mrs Brotherston’s ordinary income for the period substantially exceeds that which is allowable under s 1071A-1 of the Act.  That of course means that Mrs Brotherston is not qualified for the Healthcare card under the Act.  There is no provision in Chapter 2A - Pt 2A.1 - Div 3 ‑ subdivision B of the Act for this Tribunal to exercise any discretion to take into account a person’s individual circumstances.  Unfortunately for Mrs Brotherston, this Tribunal can only act in accordance with the law.  It is powerless to provide the relief which Mrs Brotherston seeks. 

CONCLUSION

15.     The decision made by the SSAT on 26 November 2009 rejecting Mrs Brotherston’s claim for a low income Healthcare card was clearly correct.  I affirm that decision.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member Fice

(sgd) Mya Anumarlapudi
  Clerk

Date of Hearing On papers      16 April 2010
Date of Decision  9 June 2010
Solicitor for the Applicant           Self represented
Solicitor for the Respondent      Mr Tuan Tran