Nurcan Akguner and Secretary, Department of Social Services

[2013] AATA 925

[2013] AATA 925

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5177
Re	Nurcan Akguner
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	20 December 2013
Place	Melbourne

The Tribunal affirms the decision under review

........................[sgd]................................................

G. D. Friedman, Senior Member

Social Security – wife pension – absence from Australia - savings provision

Administrative Appeals Tribunal Act 1975 s 34J

Social Security Act 1991 s 121, 23(5D), 1221, Schedule 1A clause 128

Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000

REASONS FOR DECISION

G. D. Friedman, Senior Member

20 December 2013

1. Mrs Akguner first arrived in Australia on 13 July 1975. On 26 December 1996 she was granted a wife pension before moving back to Turkey to live on 20 April 1998 at which time she ceased being a resident of Australia. The Social Security Act 1991 (the Act) provides for the payment of a wife pension, including provision for the payment to a person who is absent from Australia.

2. Prior to 20 September 2000, a person who was entitled to wife pension had the benefit of unlimited portability.  The law relating to portability periods was amended by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000.  The amending legislation generally limited portability to 26 weeks.  However, savings provisions in the amending legislation preserved unlimited portability in certain circumstances. 

3. Mrs Akguner returned to Australia on 24 September 2008 before departing for Turkey again on 17 April 2009, a period of 26 weeks and 24 days. On 8 November 2010 Centrelink decided that due to the length of her stay in Australia exceeding 26 weeks, the savings provisions no longer applied to her, she was no longer entitled to the full rate of wife pension, and would now be paid a proportional rate based on 154 months of Australian working life residence. On 21 May 2013 an authorised review officer (ARO) advised Mrs Akguner that the original decision was correct. On 29 August 2013 the Social Security Appeals Tribunal (SSAT) affirmed the decision and Mrs Akguner now seeks review by this Tribunal.

4. Under s 34J of the Administrative Appeals Tribunal Act 1975 and with the consent of the parties the Tribunal decided to review the SSAT decision by considering the material lodged by the parties and without holding a hearing.

   ISSUE

5. The issue before the Tribunal is whether Mrs Akguner is entitled to be paid the full rate of wife pension.

   LEGISLATION

6. Section 1221 of the Act states:

   1221 Proportionality--wife pension and widow B pension rate for entitled persons

   (1) An entitled person's rate of wife pension or widow B pension is to be calculated using the Pension Portability Rate Calculator at the end of this section if:

   (a) the person has been continuously absent from Australia, throughout a period (the period of absence ) of more than 26 weeks; and

   (b) immediately before the period of absence commenced, the person was receiving the wife pension or widow B pension.

   (2) Subsection (1) does not apply to a person if:

   (a) the person became qualified to receive the pension because of the death of the person's partner; and

   (b) immediately before the death of the partner, the partner was an Australian resident.

   Pension Portability Rate Calculator

   Module A -- Overall rate calculation process

   Overall rate calculation process

   1221-A1 This is how to calculate a person's portability rate:

   Method statement

   Step 1. Work out the period of the person's Australian working life residence using Module B: the result is called the residence period .

   Step 2. Use the person's residence period to work out the person's residence factor using Module C below.

   Step 3. Work out the rate that would be the person's pension or allowance rate if this Rate Calculator did not apply to the person: the result is called the person's notional domestic rate .

   Step 4. Multiply the person's notional domestic rate by the person's residence factor: the result is the person's portability rate.

   Limit in portability rate

   1221-A2 If a person's portability rate as calculated under point 1221-A1 would exceed the rate (the notional rate ) that would be the person's notional domestic rate under that point if the person had a residence factor of 1, the person's portability rate is the rate that equals the notional rate.

   Module B -- Australian working life residence

   Working life

   1221-B1 For the purposes of this Module, a person's working life is the period beginning when the person turns 16 and ending when the person reaches pension age.

   Note: For pension age see subsections 23(5A), (5B), (5C) and (5D).

   Australian working life residence (general)

   1221-B2 Subject to points 1221-B3 and 1221-B4, a person's period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person's working life during which the person has, up to that time, been an Australian resident.

   Note: for the method of calculating the number of months in the period see points 1221-B3 and 1221-B4 below.

   Calculation of number of months

   1221-B3 If a person's period of Australian working life residence would, apart from this point, be a number of whole months, the period is to be increased by one month.

   1221-B4 If a person's period of Australian working life residence would, apart from this point, be a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month.

   Module C -- Residence factor

   Residence factor (period of Australian working life residence 25 years or more)

   1221-C1 If a person's period of Australian working life residence is 300 months (25 years) or more, the person's residence factor is 1.

   Note: if a person's residence factor is 1, the person's pension will be payable outside Australia at the full domestic rate.

   Residence factor (period of Australian working life residence under 25 years)

   1221-C2 If a person's period of Australian working life residence is less than 300 months (25 years), the person's residence factor is:

   person’s Australian working life residence

   300

7. Section 121 of the Act defines the term entitled person:

   121 Meaning of terms used in this Part

   "entitled person" means:

   (a) a woman who has at any time been an Australian resident for a period of, or for periods totalling, at least 10 years; or

   …..

8. Section 23(5D) of the Act defines pension age:

   23 (5D) A woman born during the period specified in column 2 of an item in the following table reaches pension age when she turns the age specified in column 3 of that item.

Table--Pension age for women
Column 1 Item	Column 2 Period during which woman was born	Column 3 Pension age
3	1 January 1954 to 30 June 1955	66 years

1. Clause 128 of Schedule 1A of the Act states:

   128 Saving provision--portability rules relating to rates of pension

   (1) Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B and 1221 of this Act made by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 , if:

   (a) a person was absent from Australia immediately before 20 September 2000; and

   (b) at a time (the post-start time ) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000;

   those provisions continue to apply to the person at the post-start time as if those amendments had not been made.

   TO WHAT RATE OF WIFE PENSION IS MRS AKGUNER ENTITLED?

2. Mrs Akguner departed Australia on 10 May 2010 and reached a period of continuous absence from Australia of more than 26 weeks on 8 November 2010. As a result section 1221 of the Act applies from this date. Under section 1221 of the Act Mrs Akguner’s working life residence has been calculated with reference to the years she spent in Australia beginning when the person turns 16 and ending when the person reaches pension age. Mrs Akguner arrived in Australia on 13 July 1975 at the age of 20, and ceased being a resident of Australia on 20 April 1998.

3. Using the calculation provided for in section 1221 of the Act, Mrs Akguner’s period of Australian working life residence is 153 months and 8 days, applying section 1212-B4 of the Act this equates to 154 months. The proportional rate applied to reduce Mrs Akguner’s rate of wife pension is 154/3000 (51.333%).

   DOES MRS AKGUNER QUALIFY UNDER THE S 128 SAVING PROVISION?

4. Mrs Akguner was absent from Australia immediately prior to 20 September 2000, departing Australia on 20 April 1998. Prior to her return on 24 September 2008 Mrs Akguner’s circumstances satisfied the saving provisions contained in schedule 1A clause 128 of the Act, therefore she continued to be paid at the full rate.

5. In documents lodged with the Tribunal Mrs Akguner agrees that she stayed in Australia for longer than the 26 week period prescribed in the saving provision contained in schedule 1A clause 128 of the Act. There is no dispute that Mrs Akguner returned to Australia on 24 September 2008 before departing for Turkey on 17 April 2009, a period of 26 weeks and 24 days. Mrs Akguner explains that this was due to health problems and doctors appointments. She has supplied the Tribunal with several medical documents, many in the Turkish language. The Tribunal accepts that during the relevant time Mrs Akguner had medical issues preventing her from returning to Turkey prior to the expiry of the 26 week period.

6. Mrs Akguner was aware that staying in Australia for longer than 26 weeks would result in her no longer satisfying the saving provision within the Act:

   I overstayed my visit by 24 days due to my doctors not being able to diagnose what exactly was wrong with me. As a result of this I was not allowed to travel overseas until I was properly diagnosed. Later on I was told that I needed an operation which couldn’t be carried out for another three months. As I was well aware of my maximum stay time in Australia and did not want to breech this any further I decided to have my operation in Turkey.

7. As there is no discretion under the Act, having found Mrs Akguner returned to Australia for a period of more than 26 weeks, the savings provisions no longer apply to her circumstances and her rate of wife pension must be calculated using the method provided for in section 1221 of the Act.

   DECISION

8. The Tribunal affirms the decision under review

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

.......................[sgd].................................................

Associate

Dated 20 December 2013

Applicant	In person
Advocate for the respondent	Mark Hester
Solicitors for the respondent	Department of Human Services