Oakes and Secretary, Department of Family and Community Services

[2003] AATA 401

Administrative

Appeals

Tribunal

 

DECISION AND WRITTEN REASONS FOR DECISION [2003] AATA 401

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/263

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NANCY OAKES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President CR Wright, QC

Date30 April 2003

PlaceAdelaide

Decision The Tribunal  affirms the decision under review.

(Signed)

CR WRIGHT, QC  
  (Deputy President)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances – Age Pension – whether applicant is entitled to payment  of pension deferred bonus, and if so, what amount

Social Security Act 1991 section 93D

WRITTEN REASONS FOR DECISION

pursuant to section 43(2a) of the Administrative Appeals Tribunal Act 1975

30 April 2003   Deputy President CR Wright, QC            

1. On 28 February 2003, after a review hearing in Adelaide, I affirmed a decision of the Social Security Appeals Tribunal (the SSAT) made on 5 July 2002. My decision was delivered orally in the presence of the applicant who appeared to understand the basis on which it was given. However, after receiving a copy of the formal notification of the decision on or about 25 March 2003, the applicant sought written reasons, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The applicant seeks an increase in her pension deferred bonus payment as assessed by Centrelink.

3.      The applicant lodged a claim for Age Pension on 5 February 2001.  At that time she provided all relevant income details with the claim form.  An assessment of her basic pension entitlement, based upon annual income, resulted in a nil rate.  As a result, the applicant was not entitled to receive a pension deferred bonus payment at that date.

4.      A re-assessment of income was completed by Centrelink after a SSAT ruling in April 2002, and the applicant’s annual combined income was re-assessed from $28,973.79 to $22,399.82.  This assessment was based on payslips that were provided by the applicant, and an estimate of her earned income for 12 weeks prior to the date of lodgement of Age Pension claim.

5.      A re-calculation of entitlement to Age Pension basic rate was undertaken, and as a result entitlement was re-calculated as $91.89 per fortnight or $2,389.14 per annum.

6. A re-assessment of the applicant’s entitlement to pension deferred bonus was calculated over the period of 2.603 years being $1,521.62, in accordance with section 93D of the Social Security Act 1991 (the Act).

7.      This decision was affirmed by an authorised review officer on 28 May 2002.  The applicant appealed against this decision to the SSAT.

8.      At the hearing before the SSAT in July 2002, the applicant said that she was not happy with the amount of pension deferred bonus which had been calculated by Centrelink.  She said that she expected more because of material contained in brochures and publications which purported to explain the effect and operation of the scheme.  The applicant said that she expected about $6,000.  She made a number of other complaints about her perception that the scheme worked unfairly in respect of persons like herself who continued to work part-time after making application for an Age Pension.  However, she addressed no argument to the SSAT to demonstrate that the legislation had been misapplied, or that Centrelink had made factual or other errors in applying the relevant formulae or calculations to her situation.

9.      Not surprisingly the SSAT, after considering the matter, was unable to detect any error in the way the figures had been calculated and declined to interfere with the Centrelink determination.

10.     When appearing before the Administrative Appeals Tribunal on 28 February 2003, the applicant adopted a similar approach to her application for review.  She repeated her complaints as to the inequities of the scheme, and expressed dissatisfaction with the Centrelink methods of calculation.  However, she advanced no argument or material to demonstrate that the Centrelink calculations were flawed, although she was given every opportunity to do so.

11.     Nonetheless, I called upon the respondent’s advocate, Mr Kilderry, to take me through the legislation and the Centrelink calculations, step by step, principally for the applicant’s benefit, but also to completely satisfy myself that the correct approach had been taken by the Department.

12.     In response to the request Mr Kilderry did so, responding as necessary to questions put by me to clarify or expand upon what he had said.  At the conclusion I asked the applicant if she had followed what had been said.  She said “I tried to, yes.  It gets a bit confusing because they keep changing my income …”.

13.     This last comment was obviously directed to the steps which Centrelink had taken, as Mr Kilderry admitted, with some “flexibility” in making the income calculation.  This had varied from time to time as Centrelink had used different methods to reassess the applicant’s deferred pension bonus entitlement by choosing different periods of time over which to average her income factor.

14.     In some circumstances such a process could be seen as disadvantaging an applicant, or at least causing her to have some distrust or misgivings about the result produced, but here, having heard Mr Kilderry’s exposition of the methodology used on each occasion, it is quite plain to me that Centrelink ultimately adopted the most beneficial view of the calculation process in the applicant’s favour that it was possible to take.

15.     In my opinion the variations in the calculations made by Centrelink were the result, not of any wrong or inaccurate approach by Centrelink personnel, but rather the complexities of the legislative scheme.  As I suggested to the applicant at the conclusion of the hearing, I think her remedies, if any, are political rather than legal.

16.     As a consequence I took the course which I did of affirming the decision under review.

17.     Appended hereto is a copy of the transcript of the proceedings at the hearing of the Tribunal on 28 February 2003.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President CR Wright, QC

Signed:         .......................................................................................
  Associate

Date of Hearing  28 February 2003
Date of Decision  28 February 2003
Date of Written Reasons for Decision      30 April 2003
Counsel for the Applicant  In person
Solicitor for the Applicant  -
Counsel for the Respondent                      Mr R Kilderry
Solicitor for the Respondent  Admin Law Team