Lukic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 944

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 944

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2667

GENERAL ADMINISTRATIVE DIVISION		)
Re		BUDIMIR LUKIC

Applicant

And Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Ms K Hogan, Member  

Date23 November 2010

PlacePerth

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.

..(sgd) K Hogan...............

Member

CATCHWORDS

Age Pension - decision of SSAT affirmed.  

LEGISLATION

SocialSecurity Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

23 November 2010   Ms K Hogan, Member

  Ms K Hogan, Member 

History

1.      Mr. Lukic has been in receipt of the age pension since 14 February 1999.

2.      In October 2009 Mr. Lukic disputed the rate of age pension paid to him in the period 9 July 2009 to 1 October 2009 (“the relevant period”).

3.      On 22 December 2009 a Centrelink officer determined that Mr. Lukic had been correctly paid age pension in the relevant period.

4.      Mr. Lukic requested a review of this decision by a Centrelink Authorised Review Officer (“ARO”).

5.      On 7 January 2010 the ARO reviewed and affirmed the decision.

6.      On 14 January 2010 Mr. Lukic appealed the ARO’s decision to the Social Security Appeals Tribunal (“SSAT”).

7.      On 28 May 2010 the SSAT affirmed the decision under review.

8.      Mr. Lukic applied by these proceedings to review that decision.

Issue

9.      The issue to be considered by the Tribunal is whether Mr. Lukic was paid age pension at the correct rate in the relevant period.

Evidence and Consideration of Issues

10.     The Tribunal was provided with a number of documents including the section 37 documents and written submissions from Mr. Lukic and Ms. Conlon.

11.     The Tribunal considered the oral evidence given by Mr. Lukic and Ms. Conlon.

12.     Mr. Lukic had stated in his application to the SSAT and in his application to the Administrative Appeals Tribunal that he was underpaid amounts of $4.69 on 9 July 2009(“the first amount”) and $6.07 on 1 October 2009. (“the second amount”).

13.     Despite the assistance of an interpreter it was very difficult for the Tribunal to discern the reasons Mr. Lukic thought that his age pension had been paid at the incorrect rate in the relevant period.

THE FIRST AMOUNT

14.     Ms. Conlan explained that in relation to the first amount, there was an increase in the pension due to CPI indexation and the increase occurred partway through Mr Lukic’s payment fortnight.  He was paid a few days at the old rate of pension and a few days at the new rate of pension, and, by the secretary’s calculations, he was paid the correct amount.

15.     Whilst Mr. Lukic did not clearly explain to the Tribunal why he considered he was underpaid on 9 July 2009 it appears, from his submission to the SSAT, that he claims not to have been paid on the correct day and/or that the pension increase should apply for the entire pay period.

16.     The Tribunal can see no evidence of his being paid on the wrong day.

17.     According to the Centrelink records Mr. Lukic was paid his pension on a Thursday, for the fortnight commencing on Wednesday two weeks and one day prior and ending on Tuesday two days prior, to each payment date.

THE SECOND AMOUNT

18.     Mr. Lukic referred to the transitional provisions relevant to the rate of payment of certain pensions from 20 September 2009.

19.     Mr. Lukic said the provisions were applicable to his rate of age pension.

20.     Mr. Lukic did not dispute the SSAT’s record of the value of his assets in the relevant period.  Mr. Lukic’s contention was that the error arose in the SSAT decision because the transitional provisions should apply to him.

21.     The Respondent argued that the provisions only relate to the rate of pension payments calculated under the income test and therefore these provisions did not apply to Mr. Lukic’s circumstances.

Legislation

22.     The qualifications for age pension are set out in section 43 of the Act.

23.     Section 55 of the Act states that the rate of a person’s age pension is calculated using the Pension Rate Calculator A in section 1064 of the Act (“the Rate Calculator”).

24.     The Rate Calculator requires the person’s maximum basic rate (“MBR”) of age pension be calculated using the “income test” or the “assets test” whichever gives the lower rate.

25.     Section 1064 – G1 of the Act provides if the value of a person’s assets exceeds the person’s asset value limit the person’s MBR of age pension is reduced.

26.     Section 11 of the Act defines “asset” as “property or money”.

27.     Section 1118 of the Act provides for certain assets to be disregarded when calculating the value of a person’s assets, such assets include among other things any right or interest of the person in his or her principal home.

28.     Clause 146 of Schedule 1A of the Act contains transitional provisions for pension rates calculated under section 1064 of the Act.

29.     If, on 19 September 2009, a person was receiving one of the specified payments (include age pension) and the person continues to receive the payment, then their rate continues to be calculated and paid under the pre 20 September 2009 Rate Calculator in accordance with the method set out in clause 147 of Schedule 1A to the Act, if the rate payable would be higher than the rate payable under the post 20 September 2009 Rate Calculator.

Findings

30.     The decision of the ARO dated 7 January 2009, which is contained at page 62 of the section 37 Documents, sets out in detail the method by which the rate of age pension was calculated in the period 9 July 2009 and 1 October 2009.

31.     As the record of Mr. Lukic’s income and assets, used in assessing the maximum rate of age pension, was not disputed by Mr. Lukic at the hearing before the Administrative Appeals Tribunal, the Tribunal finds those figures to be accurate.

32.     The Tribunal is satisfied that Mr. Lukic’s rate of age pension was calculated correctly under the assets test in the relevant period and that he was not eligible to be paid according to the transitional provisions.

33.     The Tribunal is satisfied that on the basis of the assets recorded in the decision of the ARO that the rate of pension calculated by Centrelink in the relevant period was correct.

34.     The Tribunal finds that Mr. Lukic was paid age pension at the correct rate in the relevant period.

Decision

35.     The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.

36.      

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K Hogan, Member

Signed: ..(sgd) T Freeman..................
  Associate

Date/s of Hearing  4 November 2010
Date of Decision  23 November 2010
Representative for the Applicant               Self represented
Representative for the Respondent          Ms M Conlon
  Centrelink legal Services Branch