Maria Lovell and Repatriation Commission
[2014] AATA 958
•22 December 2014
[2014] AATA 958
Division VETERANS’ APPEALS DIVISION File Number(s)
2014/2970
Re
Maria Lovell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President Date 22 December 2014 Place Sydney The decision under review is affirmed.
...................[sgd].....................................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
VETERANS’AFFAIRS – partner service pension – whether applicant was receiving a social security pension immediately before the veteran’s death – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 23
Veterans’ Entitlements Act 1986 ss 5Q, 38
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
22 December 2014
This is an application for the review of a decision by a delegate of the Respondent that the Applicant, a widow of a veteran, is not eligible to receive a partner service pension as she was not of age pension age. She was born in 1953 and at the time she applied for the partner service pension on 14 October 2013 to qualify for age pension a woman must have attained 65 years of age.
The delegate did not consider whether the Applicant might be eligible for partner service pension pursuant to section 38(1)(c) of the Act. Under s 38(1)(c) a person is eligible for partner service pension if the person is a widow of a veteran and whose partner, immediately before death, was receiving an age service pension or an invalidity service pension and the person was receiving a partner service pension or a social security pension immediately before the veteran’s death.
In the present case in order to be eligible for a partner service pension under s 38(1)(c) of the Act I must be satisfied that the Applicant was receiving a partner service pension or a social security pension immediately before the veteran’s death.
The expressions social security benefit and social security pension as used in the Act are defined by s 5Q of the Act to have the same meaning as in the Social Security Act 1991.
In section 23 of the Social Security Act 1991 “social security pension” is defined to mean an age pension, or a carer payment. There is also a definition of a “social security benefit” which means a newstart allowance.
The Applicant was in receipt of carer payment until the payment was cancelled on 3 November 2010. There is no reference in the Applicant’s bank statements to carer payment being paid after 8 November 2010.
On 19 November 2010 the Applicant was paid newstart allowance of $508.20 and on 2 December 2010 and 16 December 2010 there were further deposits of the same amount of newstart allowance.
The question for determination in this case is whether the Applicant was receiving a “social security pension immediately before the veteran’s death”.
CONSIDERATION
It is evident from the definitions contained in section 23 of the Social Security Act 1991 that a clear distinction is drawn between a “social security pension” and a “social security benefit” unless a contrary intention appears. There is no indication of any contrary indication in the present case.
The carer payments are a “social security pension” but these ceased in November 2010 and at the time of the veteran’s death on 2 December 2010 the Applicant was in receipt of newstart allowance which comes within the definition of “social security benefit” and not within the definition of “social security pension”.
In these circumstances at the time of the veteran’s death the Applicant was in receipt of a social security benefit and not a social security pension. The definitions of the two expressions are prescriptive and not inclusive in the sense that the expressions “mean” and do not refer to the definitions as “including” certain types of payment.
In these circumstances the payments being made to the Applicant at the time of veteran’s death were in the nature of a social security benefit, namely newstart allowance, not a social security pension.
However, within a two or three week period before the veteran’s death the Applicant had been receiving a carer payment. The question which arises is whether it can be said that this was received “immediately” before the veteran’s death. Although the term “immediately” is an ordinary English expression and in ordinary usage denotes a circumstance that has no intervening medium or agency or being the nearest in point of time. It indicates the absence of any person, thing or distance intervening in time, space, order or succession and conveys the absence of any delay.
In the present case as at 2 December 2010 the Applicant received newstart allowance and was not receiving a social security pension but rather a social security benefit and the legislation specifically draws a distinction between the two expressions. Because of the intervening newstart payments after the carer payments ceased the carer payments could not be said to have been paid immediately before the death of the veteran.
It is clear that the Act’s provisions are intended to have a liberal and beneficial interpretation in favour of a prospective beneficiary. However, in the present case the language is quite clear and specific and as a consequence I do not consider that the Applicant satisfies the requirements of section 38(1)(c)(ii) of the Act and therefore her claim must be rejected.
The decision of the delegate under review is affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President ............[sgd]....................................................
Associate
Dated 22 December 2014
Date of hearing On the papers Applicant Self-represented Advocate for the Respondent Mr C Ponnuthurai, Department of Veterans’ Affairs
0
0
2