Mainiero and Secretary, Department of Family and Community Servic Es

[2003] AATA 913

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 913

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/36

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LUCIA MAINIERO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date17 September 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - wife pension - eligibility - foreign residence - period of Australian residence - changes in legislation - cancellation - reinstatement - arrears - SSAT (Social Security Appeals Tribunal)

Legislation

Social Security Act 1947
Social Security and Veterans’ Legislation Amendment Act (No 56) 1990
Social Security Act 1991
Social Security (Administration) Act 1999

Authorities

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

Re Raptis and Secretary, Department of Social Security (1992) AATA 8362

Re Savic and Secretary, Department of Social Security (1993) AATA 9105

Re Secretary, Department of Social Security and Akritidis (1992) AATA 8034

Re Secretary, Department of Social Security and Hodzic (1992) AATA 8162

REASONS FOR DECISION

17 September 2003 Associate Professor B W Davis AM (Part-time Member)   

Decision under review

1.      The applicant, Lucia Mainiero, seeks review of a decision made by a delegate of Centrelink on 28 March 2001, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 11 September 2001, that her wife pension be cancelled from 1 July 1991 and reinstated from 9 March 1995, rather than from an earlier date.

Issues

(a)whether the decision to cancel the applicant’s wife pension from 1 July 1991 was correct; and

(b)whether the applicant is entitled to be paid arrears of wife pension for the period from 1 July 1991 to 8 March 1995.

Overseas Case

2.      As the applicant resides in Italy, this is an overseas case and with the agreement of the applicant to be decided on the papers.

Standard of Proof

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal (Social Security Act 1991).

Background

4.      The applicant, Lucia Mainiero, arrived in Australia on 18 December 1970 and was granted a wife pension on 24 November 1977.   She left Australia to return to Italy on 8 august 1980, giving a period of Australian residence of 9 years, 7 months and 22 days.

5.      The applicant was sent two letters by the Department of Social Security on 10 April 1991 and 26 April 1991, notifying her that wife pension would be cancelled from 1 July 1991, due to changes in Australian legislation.   She should apply to the nearest Italian Pension Authority for appropriate payment, given the Agreement on Social Security between Italy and Australia.   The last payment of Australian wife pension was made on 20 June 1991.

6.      On 14 April 1994, the applicant’s husband wrote to the Social Security Appeals Tribunal (SSAT), appealing against cancellation of his partner’s wife pension in 1991.

7.      On 27 February 1995, the Department of Social Security received a claim for wife pension from the applicant, under the International Agreement on Social Security between Australia and Italy.   The applicant was then granted Australian wife pension from 9 March 1995.

8.      On 6 February 2001, Centrelink received a letter from the applicant, seeking review of the cancellation in 1991 and requesting arrears be paid to her for the period between 1 July 1991 and 9 March 1995.   On 28 May 2001 the original decision-maker reviewed the matter and confirmed that no arrears were payable and the cancellation in 1991 was according to statute.   Both decisions were further affirmed by an Authorised Review Officer (ARO) on 14 May 2001 and further affirmed by the SSAT on 11 September 2001.

9.      The applicant then lodged an application for review with the Administrative Appeals Tribunal (AAT) on 9 April 2002.

Facts and Contentions

10.     The applicant has not lodged a formal statement of facts and contentions with the Tribunal, however the Tribunal has before it all correspondence in the case, including two detailed letters from the applicant dated 10 May 2003 and 4 August 2003 respectively, setting out grounds for review and appeal.

11.     The applicant, Lucia Mainiero, states that she and her husband only returned to Italy because they considered pension payments would go further there, which has not proven to be the case.   They had approached the Italian National Pension Service (INPS), but were treated arrogantly and ignored.   Upon receiving the 26 April 1991 letter from DSS Australia, they considered they qualified for continuation of wife pension, since they had resided in Australia for 10 years.   They expected further correspondence, but none came.   Eventually in 1994 they applied for reinstatement of Australian wife pension and were successful in 1995, but cannot understand why they have not been paid arrears.

12.     The applicant states that translation difficulties sometimes leads to misinterpretation and that some specific questions of theirs have never been fully addressed.    They accept that residing outside Australia places some onus on them to approach the Italian authorities, but since they have never contributed to the Italian pension system, get no satisfaction from officials there.

13.     In her second letter dated 4 August 2003 the applicant argued that letters to them should have been in the Italian language, to avoid ambiguity, and that reinstatement of pension was granted in 1995, when it had been requested in 1994.   Due to an administrative error the initial request for review dated 11 April 1994 was apparently overlooked.  The applicant considers she and her husband have been poorly treated and have contemplated taking their case to the European Court of Human Rights.

Analysis

14.     The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, taking into account relevant statutory provisions and any significant case authorities.

15.     There are two principal matters for the Tribunal to determine:

(a)whether a decision to cancel the applicant’s wife pension in July 1991 was correct; and

(b)whether the applicant is entitled to be paid arrears of wife pension for the period from 1 July 1991 to 8 March 1995.

In considering these issues the Tribunal is required to consider the legislation existing at the time specific decisions were made.

16.     From 1 July 1990 the Social Security Act 1947 was amended by s7 of the Social Security and Veterans’ Affairs Legislation Amendment Act 1990, No. 56, 1990. This inserted in the Social Security Act 1947 the following section:

“60C.  (1)  Where:

(a)       a person left, or leaves, Australia on or after 1 July 1990; and

(b)before leaving, the person was in receipt of a wife’s pension or a class B widow’s pension; and

(c)the person continues to be absent from Australia for more than 12 months; the person is not qualified to receive that pension after the first 12 months’ absence while the person remains absent from Australia.

(2) Subsection (1) does not apply in relation to a person while the person
remains in a specified foreign country if the person arrived in that country:

(a)      after an unbroken journey from Australia; or

(b)       after an unbroken

journey from another specified foreign country; or

(c) within the period of 12 months mentioned in that subsection, after an unbroken journey from a foreign country, other than a specified foreign country.

(3) Subsection (1) applies in relation to a person who was outside
Australia on 1 July 1990 as if the person had left Australia on that day.

(4) For the purposes of subsection (1), an absence of a person from
Australia ends if he or she returns to Australia, even if only temporarily.

(5) For the purposes of subsection (2), a person is not to be treated as
having broken his or her journey between 2 countries merely because the person
enters another country as a transit passenger during the course of the
journey.

(6) The Minister may, by notice in the Gazette, specify a foreign country
for the purposes of this section.

(7) A notice under subsection (6) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.

(8) In this section:

'specified foreign country' means a foreign country in respect of which a
notice under subsection (6) is in force.".

17.     From 1 July 1991, the Social Security Act 1947 was repealed and replaced by the Social Security Act 1991 (“the Act’).   Although worded differently, the substantive effect of the relevant section to this decision was the same:

Subject to section 1216B, if:

(a)a woman has been an Australian resident; and

(b)she has been outside Australia continuously for a period of 12 months; and

(c)on the day after the 12 month period ends, she is not in Australia or a specified foreign country;

she is disqualified for:

(d)wife pension; and

(e)widow B pension; and

(f)special needs wife pension; and

(g)special needs widow B pension;

as from that day.

Note 1: for the period of 12 months after the woman leaves Australia, her right to continue receiving the pension referred to in this section will not be affected by her leaving Australia as long as she has complied with the departure certificate requirements (see sections 1218 and 1219) and if necessary has been an Australian resident for 12 months immediately before leaving Australia (see section 1220).

Note 2: because this section commences on 1 July 1991, a woman who has been outside Australia since 1 July 1990 and is not in Australia or a specified foreign country on 1 July 1991 becomes disqualified for the pension referred to in this section from 1 July 1991 unless section 1216B applies to her.

Note 3: this section applies to a woman who transferred to, or was granted, a pension referred to in this section after leaving Australia.

Note 4: if a woman lodges a claim for the pension before leaving Australia and the pension is granted to her after she has left Australia, she is to be taken to have been receiving the pension as from the earliest day on which the pension is payable to her (see subsection 23(2)).

Note 5: this section may not apply if a scheduled international social security agreement makes provision inconsistent with this section.

Note 6: for "Australian resident" see subsection 7(2).

Note 7: for “specified foreign country” see subsections 23(1) and 38 (1).

Note 8: for the effects of a person returning to Australia see section 1217.”

18. Note 2 of section 1216 explains that if a women has been outside of Australia since 1 July 1990 and is not in Australia or a “specified foreign country” as at 1 July 1991, she does not qualify for a wife pension after 1 July 1991.

19. Lucia Mainiero departed Australia on 8 august 1980, thus the new legislative provisions of section 1216 meant she would lose her wife pension twelve months after 1 July 1990, unless some special provision applied.

20. In her situation it is necessary to consider what is meant by “specified foreign country” as defined by section 23(1) of the Act.

“specified foreign country”  means a country determined by the Minister to be a specified foreign country under subsection 38(1);

Section 38 of the Act states:

Specification of foreign country

38(1) The Minister may determine that a foreign country is to be a specified foreign country for the purposes of this Act by notice in the Gazette.

38(2) A notice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”

But at the date on which Lucia Mainiero’s wife pension was cancelled, no country had been determined to be a “specified foreign country” by the then Minister (see paragraph 13 of SDSS and Akritidis (1992)).     In this sense, Italy was not a special case.

21. Section 1216B of the Social Security Act 1991 provides an exemption to section 1216. It states:

" (1) A woman’s qualification for a:

(a)wife pension; or

(b)widow B pension; or

(c)special needs wife pension; or

(d)special needs widow B pension;

is not affected by her being outside Australia while an entitled person.

(2) In this section:

"allegation authority" means:

(a)the Greek Australian Workers' Welfare Association (NSW); or

(b)the Commission of Enquiry established by Letters Patent of 9 February 1984 and 16 August 1984 to investigate matters known as the Greek conspiracy;

"entitled person" means:

(a)a woman who was an Australian resident for at least 10 years; or

(b)a woman in receipt of a widow B pension because she was legally married and her husband has died; or

(c)a woman who was, or is the partner of a man who was, the subject of a recommendation by an allegation authority that resulted in payment of amount of compensation by the Commonwealth to her or her partner."

22. Basically this means that if the applicant had been an “entitled person” on 1 July 1991, s1216 of the Act would have operated and she would have been entitled to receive wife pension, even if outside Australia (s1216B(1) of the Act).

23.     However in this instance the applicant was not in receipt of a widow pension, not is there any suggestion her husband was a man affected by the so-called “Greek conspiracy” allegations.   Therefore the only means by which she could be an “entitled person” would be if she had resided in Australia for 10 years or more, as at 1 July 1991.

24. Her actual period of residence was 9 years, 7 months and 22 days, which is less than the required qualification period of 10 years specified in s1216B(2) of the Act. There is no evidence the applicant resided in Australia for any other periods.

25.     Given the above it is clear Lucia Mainiero does not have any special case and the decision to cancel the applicant’s wife pension from 1 July 1991 was correct.   She has acknowledged receiving at least one of the two letters sent to her by the Department of Social Security on 10 April 1991 and 26 April 1991, and therefore cannot have been unaware her wife pension would be cancelled from 1 July 1991.   Perhaps she misunderstood the situation, as there is no evidence she responded to the Department or completed the form sent to her to be filled out at the nearest Italian National Pension Service office at the time.

26.     The introduction to limit overseas portability of a wife pension was not accompanied by any saving provisions for individuals already in receipt of a wife pension.   The applicant therefore has no accrued rights under earlier legislation, because it was not stipulated under the amendments to the Social Security Act (SDSS and Hodzic (1992) AATA 8162).

27. Cases where the Tribunal has previously considered the issue of cancellation of wife pension from 1 July 1991, under s1216 of the Act, include Raptis and SDSS (1992) AATA 8362 and Savic and SDSS 1993) AATA 9105. In both cases the Tribunal held that because the applicants had resided outside Australia for more than twelve months and were not living in a “specified foreign country” and were not “entitled persons” under relevant sections of the Act, their appeals against cancellation of wife pension failed and the decisions of the Department were lawful.

28.     The second matter to be determined by this Tribunal is whether the applicant is entitled to be paid arrears of wife pension for the period from 1 July 1991 to 8 March 1995.

29.     As the SSAT noted, there is some ambiguity about documentation between April 1991 and April 1994.   There is nothing on file to indicate Mrs Mainiero responded to the Departmental letter or filed a claim form with the INPS in mid 1991.   The earliest letter on file from Mr Mainiero is his letter of 11 April 1994, requesting review by the SSAT.    There is no clear evidence as to why this was not acted upon, however when a formal claim for wife pension was submitted to the Department on 27 February 1995, under the International Agreement on Social Security between Australia and Italy, it was approved and pension granted from 9 March 1995.

30.     Legislation relevant to the decision to grant a wife pension can be found in various sections of the Social Security Act 1991, especially ss149, 150, 152, 153, 154, 161 and Article 15 of the Agreement between Australia and the Republic of Italy, providing for reciprocity in matters relating to social security, found in Schedule 3 of the Act.

31. Section 152(1) of the Act says that a person who wishes to be granted wife pension must make a proper (i.e. formal) claim for pension and s153 of the Act states that for such a claim to be valid, it must be in writing and in accordance with a form approved by the Secretary of the Department.

32. Section 154 of the Act requires that such a form must be lodged at an office of the department or with a person approved by the Secretary. Section 154(3) of the Act allows the Secretary to approve lodgment at a specified place out side Australia and Mrs Mainiero was advised in the letter dated 10 April 1991 from the Department, this could occur at an office of the INPS.

33. Formal lodgment of a claim did not occur, however, until 27 February 1995; hence this is the date from which the claim was recognised and payment of wife pension approved from 9 March 1995. (Sections 148, 149 and 150 of the Act cover these provisions in detail).

34.     No arrears of pension are payable to Mrs Mainiero, since her wife pension was lawfully cancelled from 1 July 1991 and not reinstated until properly claimed from 9 March 1995.

35.     In summary, having considered all evidence before it, the Tribunal finds that the decision of the original decision-maker, as subsequently affirms by the SSAT is valid and lawful, thus Lucia Mainiero’s appeal is unsuccessful and it fails.

Decision

36.     The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing     Overseas application, matter decided on the papers.

Date of Decision      17 September 2003