Mazzei and Department of Family and Community Services

[2001] AATA 136

DECISION AND REASONS FOR DECISION [2001] AATA 136

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/104

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MARIA MAZZEI     
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date23 February 2001

PlaceHobart

Decision      The decision under review is affirmed.             
  ..............................................
  Part-Time Member
CATCHWORDS
Social Security – overseas widow B pension claim – qualification provisions – date of lodgment – appeal dismissed. 
Social Security Act 1991 – ss.362A(1), 362(1)

REASONS FOR DECISION

23 February 2001    Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by a Centrelink officer on 11 November 1999 which rejected the applicant's claim for an Australian widow B pension.

2. The decision was subsequently affirmed by an authorised review officer on 13 January 2000 and by the Social Security Appeals Tribunal (SSAT) on 28 June 2000.

3. The applicant currently resides in Italy and both parties agreed to the Tribunal determining the appeal on the basis of the written material before it. This included the 'T' documents which were submitted pursuant to s.37 of Administrative Appeals Tribunal Act 1975 and correspondence received from the applicant.

4. The applicant's application for an Australian pension lodged in October 1999 was rejected pursuant to s.362A of the Social Security Act 1991 ("the Act") which requires that a claim for a widow B pension must be lodged before 20 March 1997.

5. In the applicant's letter of appeal to this Tribunal she has asked that for a re-examination of her case to see what can be done on her behalf.     The applicant states that her pension entitlement was terminated when her youngest child reached 16 years of age, that she is now a widow and without any income from either the Italian or Australian governments.

6. This Tribunal has carefully reviewed the information contained in the 'T' documents which also contains copies of the applicant's correspondence.    Whilst parts of the correspondence are not easy to follow, the Tribunal agrees with the analysis in the decision of the SSAT of 28 June 2000 and the record of the history of the appeal as set out in that decision.  

7. A copy of the applicant's claim for pension is contained at T8.   Part 1 of the application apparently completed by the applicant, is dated 12 October 1999.   Part 2 of the application states that the date of lodgment was 15 October 1999.   The last page of the application was witnessed by an Italian official on 13 October 1999.

8. Section 362(1) sets out the qualification provisions for a widow B pension. It is not suggested that the applicant was receiving a widow's pension as a class B widow under the 1947 Act immediately before 1 July 1987:

   "A woman is qualified for a widow B pension if:
   (a)       the woman:

   (i)was, immediately before 1 July 1987, receiving a widow's pension as a class B widow under the 1947 Act; or

   (ii)on 1 July 1987 had turned 45 years old and:

   (A)was receiving a supporting parent's benefit or a widow's pension as a class A widow on or after that day; or

   (B)was receiving a sole parent's pension after 1 March 1989; or

   (iii)      on 1 July 1987 had turned 50 years old; and
   (b)       the woman is not qualified for parenting payment; and
   (c)       the woman:

   (i)        was legally the woman is not qualified for a parenting payment; and

   (ii)      was a dependent female, that is:

   (A)      she was a member of a couple and her partner has died; and

   (B)she was a member of the couple for 3 years immediately before her partner died; and

   (C)      she was wholly or mainly financially maintained by him; or

   (iii)      is divorced from her husband; or

   (iv)was legally married and her husband has deserted her without just cause for a period of at least 6 months; or

   (v)is legally married to a man who is in gaol and has been in gaol continuously for at least 6 months; or

   (vi)      was:

   (A)      a party to a purported marriage that is void; and

   (B)the man who was the other party to the purported marriage has deserted her without just cause for a period of at least 6 months; and

   (C)in the Secretary's opinion, she believed that the purported marriage was valid when it took place; and

   (d)       the woman is not a member of another couple; and
   (e)       either:

   (i)the woman had been an Australian resident for a continuous period of at least 5 years immediately before the day she lodged the claim for the widow B pension; or

   (ii)the woman has, at any time, been an Australian resident for a continuous period of at least 10 years; or

   (iia)the woman has a qualifying residence exemption for a widow B pension; or

   (iii)      both the woman and her partner were Australian residents at the time:

   (A)if she was legally married and her husband has died—when he died; or

   (B)      if she was a dependent female—when her partner died; or
   (C)      if she is divorced—when she became divorced; or

   (D)if she was legally married and her husband has deserted her—when she was deserted; or

   (E)if she was a party to a purported marriage and the man who was the other party has deserted her—when she was deserted; or

   (F)if she was legally married and her husband has been in gaol for a period of at least 6 months—when that period began."

1. As the applicant was born on 22 September 1946 she was clearly less than 45 years of age on 1 July 1987. The applicant thus fails to meet the qualifications provisions of s.362(1).

2. It is also evident on the material before the Tribunal that the applicant's claim for pension was not lodged before 20 March 1997 as is required by the provisions of s.362(1) of the Act which states:

   "In spite of anything else in this Part, a widow B pension must not be granted to a woman unless:
   (a)      the woman's claim for the pension is lodged before 20 March 1997; and
   (b)       the woman is qualified for the pension before that day."

1. This Tribunal must consider the application for review in accordance with the provisions of the relevant legislation which are outlined above.

2. The applicant has not disputed the lodgment date of her claim for pension. The Tribunal finds that the claim was made in October 1999 which is over two years later than the legislative requirement that a claim for widow B pension be lodged on or prior to 20 March 1997.

3. The previous reviews conducted in this matter have comprehensively examined all of the relevant facts which have also been reviewed by this Tribunal.  Unfortunately there is no discretion to review the application otherwise than in accordance with the legislation.    Accordingly the Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  Overseas application matter decided on the papers.
Date of Decision  23 February 2001