Meletiou and Secretary, Department of Employment and Workplace Relations
[2006] AATA 899
•20 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 899
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2006/33
GENERAL ADMINISTRATIVE DIVISION ) Re VASSOULLA MELETIOU Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-Time Member) Date20 October 2006
PlaceHobart
Decision The decision under review is affirmed.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Social Security - disability support pension (DSP) - degree of impairment - work injury - residency - Australia - Cyprus - proportionate rate - date of commencement - Social Security Appeals Tribunal
Social Security Act 1991 and Amendments, Sections 7 (5), 94(c), 1211
Social Security (Administration) Act 1999, Sections 13, 16, 41, 42, 142, 181; Clause 3, Schedule 2 re Start Date - General Rule
Social Security (International Agreements) Act 1999, Sections 11, 12, 13, 15, 16, 17, 18, 24. Note also Schedule 11 of the Act; Agreement on Social Security between Australia and the Republic of Cyprus, Articles 6, 8, 9
Tait and SFCCS (2001) AATA 01/0700
SDSS v Pellone (1993) 17 AAR 511
Pitt & SDFCS [2002] AATA 957
Koperski & SDFCS [2003] AATA 192
Alonso & SDFCS [2003] AATA 915
Formosa v SDSS (1988) FCA 88
King & SDFCS [2006] AATA 74
Thompson & SDFCS [2004] AATA 1369
REASONS FOR DECISION
20 October 2006 Associate Professor B W Davis AM (Part-Time Member) Decision Under Review:
1. The decision under review is a decision made by a delegate of Centrelink on 1 November 2004 to grant Disability Support Pension (DSP) to the applicant Vassoulla Meletiou from 17 November 2003, under the international agreement with Cyprus, at the proportional rate of 40/300 ths of the basic rate of pension.
Issues:
2. Is the rate of DSP paid to Mrs Meletiou correctly calculated in accordance with provisions of the Social Security (Administration) Act 1999 (the SSAA) and the Social Security (International Agreements) Act 1999 (the SSIAA).
3. Was the amount correctly assessed as 40/300th of the full rate of DSP.
Legislation:
4. The relevant legislation is various sections of the following Acts:
Social Security Act 1991 and Amendments
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999, especially the Agreement on Social Security between Australia and the Republic of Cyprus.
Standard of Proof
5. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Background
6. The applicant, Vassoulla Meletiou was born in Cyprus on 10 December 1943 and married Mr George Meletiou on 25 September 1960. She and her husband arrived in Australia on 6 October 1979, but she suffered a back injury while living and working in Australia so the couple departed on 9 January 1980 to live permanently in Cyprus and have remained there ever since.
7. On 17 November 2003 Mr and Mrs Meletiou lodged Australian pension claim forms with the Cyprus Ministry of Labour and Social Insurance. Mr George Meletiou met the criteria for an Australian Aged Pension and his claim was accepted in February 2004. Mrs Vassoulla Meletiou’s claim was for a Disability Support Pension (DSP), but this was rejected on 1 October 2004 on grounds that she did not have the requisite 20 points of impairment. The applicant expressed her dissatisfaction with this outcome and she was invited to provide further evidence from her doctor. Centrelink received a fax from Mrs Meletiou on 26 October 2004, requesting the initial rejection be reviewed and enclosing a medical report from a Dr N C Spanos about her back injury and work limitations. Following review the decision was made on 29 October 2004 to grant the applicant DSP from the date of claim 17 November 2003.
8. The rate was determined to be 40/300th of the full rate of pension, based on 40 months of “working life” in Australia. A cheque for $1,215.45 arrears was forwarded to her on 5 November 2005, but as the cheque remained uncashed at 4 January 2006, it was cancelled and a replacement issued on 5 January 2006.
9. In the interim a letter from the applicant dated 22 November 2004 but received 8 December 2004 requested a review of the rate of pension payable. On 15 September 2005 Mrs Meletiou sent a fax noting she had not yet received a response to her request for ARO review. There is no explanation on the Centrelink file about reasons for the long delay.
10. On 21 September 2005 a Customer Service Officer, acting in place of the original decision-maker, affirmed the decision to pay Mrs Meletiou 40/300th of the full DSP rate and passed the file to an ARO who also affirmed it on 7 February 2006.
11. Mrs Meletiou then sought review by the Social Security Appeals Tribunal (SSAT) which also affirmed the rate of 40/300th of the maximum basic rate on 7 February 2006. The applicant then lodged an application for review by the Administrative Appeals Tribunal.
Analysis
12. The Tribunal is required to conduct a de novo review examining all available evidence, relevant statutory and policy provisions and any prior AAT or Federal Court decisions which might constitute precedent for the case.
13. The applicant resides in Cyprus, is not able to visit Australia and has agreed to a decision on the papers.
14. As earlier noted the principal issues to be considered are whether the rate of DSP paid to the applicant is appropriate and whether she is entitled to be paid such an amount from the date of departure from Australia. The SSAT decision and hence the AAT review focuses on the rate of payment, but the Tribunal notes that Centrelink itself has addressed the question of date of commencement. There is no dispute that Mrs Meletiou is entitled to receive DSP, given her medical situation.
15. The relevant legislation is that to be found in various sections of the following statutes:
Social Security Act 1991 and Amendments (“the SS Act”)
Social Security (Administration) Act 1999I
Social Security (International Agreements) Act 1999 (“the SSIA Act”)
Agreement on Social Security between Australia and the Republic of Cyprus (1 January 1993) sections 6, 8, 9 and 11.)
Portability of Australian Pensions overseas
16. The payment of an Australian pension outside Australia is governed by the rules of portability of such pensions. There are several portability provisions in both the SS Act and SSIA Act, section 211 of the SS Act clarifying that where the SSIA Act applies, then the portability rules of the SS Act do not apply i.e. any scheduled agreement in the SSIA Act overrides the portability rules of the SS Act. (For comment see Secretary, Department of Social Security and Pellone (1993) 17 AAR 511).
17. The joint operation of s11 of the SSIA Act and Article 6 of the Cyprus Agreement permits Mrs Meletiou to claim DSP while residing in Cyprus, but, it needs to be understood that the period of Australian residency for the purposes of qualification is distinctly different from that used in calculating a rate of payment.
18. Section 94(1)(e)(ii) of the SS Act states a person must have at least 10 years qualifying Australian residence, which is further defined in s7(5) of the Act. The applicant was only resident in Australia for 3 years, 3 months and 3 days, but she qualifies under the Agreement through her period of residence in Cyprus. Section 12 of the SSIA Act states that the rate of payment to a person residing outside Australia is determined in accordance with Part 3 of the SSIA Act “Calculation of International Agreement Portability Rates”.
The Pension Rate calculation process
19. Section 13(1) of the SSIA Act details how a person’s portability rate is worked out:
(a)the period of the applicant’s Australian working life residence (AWLR) is calculated (Division 2);
(b)a residence factor is identified (Division 3);
(c)A notional pension rate is calculated that would be the applicant’s social security payment rate if this section did not apply to the person, but taking into account section 14 of the Agreement;
(d)if the person’s notional pension rate is nil, the international agreement rate is also nil;
(e)if the notional rate is not nil, add the additional amounts that are applicable under section 14 to the person’s notional agreement pension rate. This new amount is the person’s total notional rate;
(f)multiply the person’s total notional rate by the person’s residence factor; the result is the person’s international agreement portability rate.
20. It has been necessary to spell this out in some detail, as many applicants have difficulty in understanding how their rate is determined. In Mrs Meletiou’s situation a detailed description of the actual figures is provided in the respondent’s Statement of Facts and Contentions. The Tribunal has considered and accepts the mode and detail of this assessment.
21. In brief outline summary the situation is as follows:
(a) Mrs Meletiou resided in Australia for 3 years and 3 months, hence her Australian working residence (AWLR) is 40 months, relative to the required 10 years qualification period, which under Division 3 of the SSIA Act is reduced to a minimum period of 300 months. Her overall residence factor is therefore 40/300ths.
(b) The notional rate of pension is then looked at. The notional rate is the full rate of payment less any reduction due to an income test, which in the applicant’s case is zero. There is no affecting income and her notional entitlement is therefore the full rate of pension which would otherwise be payable, which at 4 July 2006 was $417.20 per fortnight for a partnered person.
(c) There are a range of cases where both the AAT and Federal Court have examined the issue of portability of a payment to an agreement country, being proportional to the amount of AWRL. See for example, Pitt and Secretary, Department of Family and Community Services (2002) AATA 957, Kopernski and Secretary, Department of Family and Community Services (2003) AATA 192 and Alonso and Secretary, Department of Family and Community Services (2003) AATA 915. It is clear therefore that Mrs Melitiou’s AWRL is 40 months only.
22. The applicant claims she was forced to leave Australia because of her accident, otherwise she would have stayed here. She believes she is entitled to payment from the date of leaving Australia, but this is incorrect, she cannot be paid for a period when not resident in Australia; her claim starts from the date she applied for DSP which is many years after the date of departure.
23. Although not obliged to do so, the respondent has examined the backdating request in considerable detail. A few backdating provisions do exist under the Act but they are extremely limited in scope and do not apply to Mrs Meletiou’s case.
Decision
24. Having conducted a de novo review, the Tribunal is satisfied on the balance of probabilities the applicant is entitled to DSP payment at 40/300th of the full rate from 17 November 2003. The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing Hearing on the papers
Date of Decision 20 October 2006
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