Ms A F Cunningham (Senior Member)

[2011] AATA 551

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 551

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0282

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PASQUALINA LOSORDO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION ON THE PAPERS

Tribunal Ms A F Cunningham (Senior Member)

Date11 August 2011

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY – overseas applicant, cancellation of wife pension upon death of husband – application of International Agreement between Australia and Italy – applicant not qualified for wife pension or widow’s pension – decision affirmed

Social Security Act 1991, ss 23(1), 147, 362

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

11 August 2011 Ms A F Cunningham (Senior Member)   

1.      The applicant, Pasqualina Losordo, seeks the review of a decision made by a Centrelink officer to cancel her wife pension from 11 December 2009 and refuse her claim for widow’s pension.  The decision was affirmed by an authorised review officer (ARO) and by the Social Security Appeals Tribunal (SSAT) on 12 November 2010. 

2.      Mrs Losordo lodged her application for review with the Administrative Appeals Tribunal on 25 January 2011.  The Tribunal granted her application for an extension of time which was not opposed by the respondent.

3.      Mrs Losordo resides in Italy and a telephone conference was listed for 28 April 2011.  As Mrs Losordo failed to provide a contact telephone number the conference did not proceed.  The appeal was listed for hearing by telephone link to Mrs Losordo on 28 July 2011.  Mrs Losordo declined to participate in the hearing by telephone.  With the consent of the respondent, the Tribunal proceeded to determine the matter on the basis of the written material before it. 

ISSUES

4.      The issues for the Tribunal to determine are whether Mrs Losordo is entitled to receive a wife pension following the death of her husband and if not, whether she is entitled to a widow’s pension.

BACKGROUND

5.      The ARO Decision Statement states that Mrs Losordo was granted wife pension from 29 July 1993 and that her husband, Antonio Losordo, was at the time in receipt of an Australian age pension pursuant to the International Agreement between Australia and the Republic of Italy (the Agreement).  On 5 September 2009 Mr Losordo passed away.  On 7 September 2009 a letter was forwarded to Mrs Losordo regarding her current entitlement.  The letter stated that Mrs Losordo was no longer entitled to receive a wife’s pension and that the date of her last payment would be 10 December 2009.  The letter further stated that Centrelink had determined that Mrs Losordo has “no payment entitlement in her own right as she does not satisfy the residential requirement to qualify for a pension in your own right”.

THE LEGISLATION

6.      The relevant legislation is the Social Security Act 1991 and the Social Security (International Agreements) Act 1999 (the Agreements Act).

7.      The qualification provisions for a wife pension are set out in 147 of the Social Security Act which provides:

“(1) A woman is qualified for a wife pension if the woman:

(a)  is a member of a couple; and

(b)  has a partner who:

(i)is receiving an age pension, disability support pension or disability wage    supplement; or

(ii)  is receiving a rehabilitation allowance and was, immediately before he became  qualified for that allowance, receiving an invalid pension”.

8.      The SSAT has considered the relevant provisions in detail in its decision dispatched on 23 November 2010.  The Tribunal agrees with the SSAT’s analysis  and there is no reason to repeat it in this decision.  No further submissions were made on behalf of the applicant and the Tribunal agrees with the findings of the SSAT that as from 11 December 2009, Mrs Losordo was no longer qualified for a wife pension and that Centrelink’s decision to cancel wife pension with effect from that date was correct.

9. The SSAT further considered Mrs Losordo’s entitlement to a widow’s pension and concluded that pursuant to the provisions of section 362A(1) of the Social Security Act, a widow B pension cannot be granted to a woman who is otherwise qualified for payment 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 date.

Mrs Losordo’s claim for widow B pension was lodged on 10 November 2009.  Sub-paragraph (b) further requires that the woman be qualified for pension before that day.  The qualification provisions are contained in section 362 which requires that the applicant already be in receipt of a widow’s pension or a sole parent’s pension.

10.     There is no evidence that Mrs Losordo had previously been paid a widow’s pension under the Social Security Act, nor did she meet the other qualification provisions of section 362(1).

11. The Tribunal has also considered the provisions of the Social Security Agreement with Italy. In relation to benefits paid by Australia, Article 2(1)(a) provides that the Social Security Act applies to or effects pensions payable to widows.  A social security pension is defined in the Social Security Act in sub-section 23(1) as including a widow B pension.  Entitlements to social security pensions are in accordance with the provisions of the Social Security Act and the Agreement between Australia and Italy does not contain any provisions that would make Mrs Losordo separately eligible. 

12.     The ARO investigated Mrs Losordo’s entitlement to an alternative payment from Australia and found that she did not meet the required minimum residence qualification provisions.  On the basis of the material before it, the Tribunal agrees with this finding.

13.     For these reasons the Tribunal determines to affirm 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 (Senior Member)

Signed:  R Hunt       Associate

Date/s of Hearing  Hearing on the papers
Date of Decision  11 August 2011