Meyer and Secretary, Department of Family and Community Services

[2005] AATA 1087

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/178

GENERAL ADMINISTRATIVE DIVISION		)
Re		HARALD MEYER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date2 November 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – claim lodged when applicant living in Germany – applicant Australian citizen – not resident in Australia at time of lodging claim – proper claim form – relevance of International Agreement – arrears payments claimed but not permissible under law as it stands – decision affirmed

Social Security Act 1991 ss 48, 49, 50, 51
Social Security (Administration) Act 1999 s 29

Social Security (International Agreements) Act 1999 Schedule 14

REASONS FOR DECISION

2 November 2005   Senior Member L Hastwell   

1.      Harald Meyer was born in Germany on 4 May 1932.  He came to Australia in April 1959 and became an Australian citizen.  He resided in Australia until he returned to Germany for medical treatment in 1989.  He remained there until he returned to Australia in 2004.

2.      Mr Meyer turned 65 years of age on 4 May 1997 while living in Germany.  On 20 January 2003, he formally lodged a claim with the respondent (the Department) for Age Pension whilst still residing in Germany.  He had had some contacts with the Department during his time in Germany in which he made inquiries as to what Social Security entitlements he may have in Australia.  He was granted an Age Pension effective from 20 January 2003.

3.      The applicant says that the pension should be paid to him from the date that he turned 65 years of age, namely 4 May 1997.  He asks for an arrears payment for the period 4 May 1997 until 20 January 2003.

4.      An Authorized Review Officer affirmed the Department’s original decision on 9 December 2003.  That decision was to grant pension from 20 January 2003, and not from an earlier date.  The Social Security Appeals Tribunal affirmed the decision on 8 April 2004.  The applicant seeks a review of that decision to this Tribunal.

legislation

5.      The relevant legislation is contained in the Social Security Act 1991 (the Act).  For the purposes of this matter, the law as it was prior to March 2000 must be considered.  In 1997, at the time when the applicant turned 65 years of age, the law provided as follows:

“Need for a claim

48(1) Subject to subsection (3), a person who wants to be granted an age pension must make a proper claim for that pension.

Note: for proper claim--see section 49 (form), section 50 (manner of lodgment) and section 51 (residence/presence in Australia).

…

Form of claim

49To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.

Lodgment of claim

50(1)   To be a proper claim, a claim must be lodged:

(a)      at an office of the Department; or

(b)      at a place approved for the purpose by the Secretary; or

(c)       with a person approved for the purpose by the Secretary.

(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.

(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.

Note: for international agreements see Part 4.1.

Claimant must be Australian resident and in Australia

51      A claim by a person is not a proper claim unless the person is:

(a)       an Australian resident; and

(b)        in Australia;

on the day on which the claim is lodged.

Note 1: for Australian resident see subsections 7 (2) and (3).

Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.”

6.      On 20 March 2000 the Social Security (Administration) Act 1999 (the Administration Act) came into effect. Section 29 of that Act also required that a person making a claim for an Australian Age Pension must be “in Australia” when the claim was made. The relevant provision is as follows:

“29       General rule

(1)Subject to sections 30, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

(a)       is an Australian resident; and

(b)       is in Australia.

…”

7.      On 1 January 2003 the Social Security Agreement between Australia and the Federal Republic of Germany became part of the Social Security (International Agreements) Act 1999 (the International Agreements Act). Under the International Agreements Act, the applicant could apply for and be paid an Australian Age Pension while still residing in Germany. This is provided for in Schedule 14, Part 1, Article 5 of the International Agreements Act.

8. Schedule 14, Part IV of Article 19 of the International Agreements Act provides that the agreement “shall not establish any entitlement for any benefits prior to its entry into force”.

issues

9.      The issues to be determined in this case are:

·Whether a claim was made by the applicant for a pension in 1997 such that it could be considered a proper claim for the purposes of a payment of pension.

·Whether there is any provision in the Act, the Administration Act or the International Agreements Act that allows payment of arrears of pension back to the date that the applicant turned 65.

the hearing

10.     The applicant represented himself at the hearing.  The Department was represented by Mr Christian Goldsworthy.  The applicant indicated that he understood that the law was against him, but he felt that there was a principle involved, and that he should be paid arrears of pension back to the date that he turned 65 years of age.

11.     Various exhibits were received by the Tribunal including the T documents.  Exhibits A1 and A2 in particular set out the applicant’s position and his grievances towards the Department for what he perceived to be their mistakes and his position as to why he should be granted a pension.

12.     The applicant explained how he left Australia to travel to Germany because there was not appropriate medical treatment available in Australia for his medical condition of Diverticulosis.  He lived in Germany for many years where such treatment was available.  He underwent various periods of intense treatment for this condition, which treatment was successful and ultimately avoided the necessity for major surgery.

13.     During this period in Germany the applicant relinquished his Australian citizenship when he applied for resumption of German citizenship.  He applied to resume his Australian citizenship when returning to Australia in 2004, and it was promptly reinstated.

14.     The applicant was employed for periods of time in Germany, and used a lot of his own capital to fund his medical treatment.  He received some German Social Security entitlements while in Germany.  He was undergoing various forms of medical treatment over the period that he was in Germany.

15.     The applicant voiced various complaints against the Department, and in particular he claimed to have sent a package of medical information to the Department in 1997 in response to enquiries made on his behalf in Australia as to his eligibility for a pension.  No record exists of those documents on the Department’s file, and neither the applicant nor his son (who made the enquiries) have anything to evidence the fact of postage, nor did they retain copies of those documents.  The applicant agreed that they were medical documents only and that there was no written claim for any Social Security benefit or pension included in that package.

16.     The applicant has applied for an Act of Grace payment, a copy of which was received as Exhibit A4 by the Tribunal.  This claim was unsuccessful.

consideration

17.     The Tribunal makes the following findings:

·The applicant was born in Germany on 4 May 1932.  He turned 65 years of age on 4 May 1997.

·The applicant resided in Australia from April 1959 until he returned to Germany for medical treatment in 1989.  During that time he was granted Australian citizenship and he remained an Australian citizen when he travelled to Germany.  His adult children remained in Australia throughout the period that he resided in Germany.

·He moved to Germany for medical reasons as he was unable to obtain appropriate treatment for his condition of Diverticulosis in Australia.  He became aware that there were different treatments available in Germany.  He underwent various treatments, largely at his own expense, during his time in Germany.

·During his time in Germany he worked for periods of time, and he applied to resume his German citizenship and received German Social Security entitlements for at least some of his time in Germany.

·The applicant ceased to be an Australian resident and became a resident of Germany during the period that he was in Germany from 1989 until his return to Australia in 2004.  His intention was to reside in Germany in the foreseeable future.

·On 4 April 1991 he wrote to the Department in terms of Exhibit A3 making enquiry about whether he may have an entitlement to any benefits.  The Department responded to that letter advising him inter alia that he must lodge a pension claim while physically present in Australia.  There was no further dialogue between the applicant and the Department of which there is any record, until he made a claim for a pension in the proper form in January 2003.

·The applicant had his adult son make some enquiries in Australia on his behalf, and in 1997 his son enquired as to his father’s eligibility for an Age Pension.  This enquiry was made at the Salisbury office of the Department.  As a result of a request for further information, medical documents were sent from Germany to Australia by the applicant.   There is no evidence of that information ever being received by the Department.  It may have been destroyed, or it may not have been received.  That medical information, if it was received, did not contain a claim for a pension, being a claim in writing in accordance with the form approved by the Secretary at the relevant time.

·The applicant was neither an Australian resident, nor was he physically present in Australia when he achieved the age of 65 years in 1997.

·The joint agreement between the Federal Republic of Germany and Australia came into force in 2003, and became part of the International Agreements Act.

·In 2003 the applicant, while still in Germany and immediately after the International Agreements Act became part of Australian Law, applied for an Australian Age Pension. He was granted an Age Pension effective from 20 January 2003. The applicant returned to Australia to reside in 2004 and he continues to receive the Age Pension. He has now resumed his Australian citizenship.

application of the law

18. The law in this instance is clear. When the applicant turned 65 years of age in Germany in 1997 he was no longer an Australian resident and he was not physically in Australia. It is possible he was also not a citizen at that time, but that issue is not of relevance for the purposes of this decision. Even if he had lodged a claim in the appropriate form when he achieved the age of 65 years, he would not have been eligible for an Australian pension at the time as the Act was very specific in its requirement that he must make a claim in writing in the proper approved form, and further that he must be physically present in Australia. He did not satisfy either of those requirements which were contained in ss 48, 49 and 50 of the Act as it then was.

19. Once the reciprocal agreement between Australia and Germany came into place, and was incorporated into the International Agreements Act, the applicant was able to claim a pension even though not a resident in Australia at the time and even through he was not physically present in Australia at the time. He lodged a claim promptly.

20.     The applicant lodged the claim in the appropriate form in January 2003 and he was granted a pension from the date of lodgement.  The Social Security Agreement between Australia and the Federal Republic of Germany clearly states that the agreement “shall not establish any entitlement for any benefits prior to its entry into force”. The applicant is therefore unable to rely upon this agreement for any backdated claim to an Australian Age Pension. He made his application as soon as the provisions of the International Agreements Act allowing payment of pensions to someone in his position took effect.

21. Under s 29 of the Administration Act a pension only becomes payable from the date of lodgement of a claim, and there is no provision in the Act for backdating his claim. Schedule 2 of the Administration Act, at Clause 3 of Part 2, states that if a person makes a claim for Age Pension, and the person is qualified for payment on the day the claim is made, then the pension is payable from the day that the claim is made.

22.     In this case the applicant was not able to make a claim prior to 1 January 2003, as he was residing in Germany and was not physically in Australia.  Previous enquiries could not be treated as claims for payment.  There was no law in place prior to January 2003 that would have entitled him to lodge a pension claim from outside Australia as a non-resident and be paid the pension.  His pension entitlements have therefore been correctly calculated.

23.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .......... J Coulthard .........................................
  Associate

Date of Hearing  17 October 2005
Date of Decision  2 November 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr C Goldsworthy
Solicitor for the Respondent     Centrelink Legal Services Branch