Oljaca and Secretary, Department of Family and Community Services

[2004] AATA 197

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/140

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DUSANKA OLJACA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date27 February 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - wife pension - Serbia - decision on papers - husband - invalid pension - member of a couple - bereavement payment - SSAT.

Social Security Act 1991 - ss4(2), 186(1)

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

Guide to Social Security Law

Re Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

REASONS FOR DECISION

27 February 2004 Associate Professor B S Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by a Centrelink officer on 13 June 2002 to cancel payment of a wife pension to Mrs Dusanka Oljaca from 22 August 2002.   The Social Security Appeals Tribunal (SSAT) varied the cancellation date to 31 August 2002.

The Issue

2.      The issue is whether the applicant is qualified to continued to receive wife pension under Australian social security law after 31 august 2002.

Standard of Proof

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Legislation

4.      The relevant legislation is the Social Security Act 1991 (“the Act”), sections 4.2, 21(2), 147(1), 186(1) also the Social Security (Administration) Act 1999, sections 12 and 80.

5. International aspects are detailed in ss5 and 6 of the Social Security (International Agreements) Act 1999..   Section 3.4.2.50 of the Guide to Social Security Law is also relevant.

Background

6.      The applicant, Mrs Dusanka Oljaca, resides in Serbia and has agreed to a decision on the papers.

7.      Mrs Oljaca was granted wife pension on 14 January 1982, at a time when her husband was qualified for and receiving an Australian invalid pension.   On 30 march 1983 the applicant and her husband left Australia to live in Yugoslavia (now Serbia).  The applicant’s husband died on 25 May 2002 and at the time was receiving an Australian disability support pension.

8. On 13 June 2002 the applicant’s wife pension was cancelled by Centrelink with effect from 22 August 2002. Payment to Mrs Oljaca from the date of her husband’s death to 21 August 2002 represented a bereavement payment as provided by the Act s186(1).

9.      The applicant requested a review of this decision on 7 August 2002 and after it was affirmed on 26 January 2003 and further affirmed by an authorised review officer on 27 january 2003, Mrs Oljaca applied to the SSAT for review on 29 April 2003.

10.     The authorised review officer’s reasons for affirming the original decision, were stated to be:

·     Mrs Oljaca had been granted bereavement payments following the death of her husband, up to a final date of 21 August 2002.

·     The law did not permit payment of a wife pension unless the person was a member of a couple whose partner was receiving an Australian pension.

·     There was no discretion in law to deal with Mrs Oljaca’s personal difficulties, which included other deaths in her family, financial hardship and the reality she had spent 24 years care on her husband and as a result could not pursue a career.

11. At its hearing in Hobart on 1 July 2003, the SSAT examined all evidence anew, including the applicant’s ill-health and tragic events in Serbia, but could not find any legal grounds or discretion which would permit continuation of her wife pension after her husband died. Sub-section 4(2) of the Act requires a woman needs to be living with her husband to be regarded as a member of a couple and once Mrs Oljaca’s husband died, this was no the longer the case. Subsection 186(1) permits continuation of wife pension for 14 weeks during the bereavement period, then payment ceases. There may be other kinds of benefits available, but not wife pension. Having weighed all these factors the SSAT affirmed the decision under review, but varied it to the extent of deciding the end of the 14 week bereavement period extended to 31 August 2002.

12.     The applicant applied for review by the Administrative Appeals Tribunal on 27 August 2003.   Mrs Oljaca agreed to a decision based on the papers on 13 November 2003.

Analysis

13.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, noting any statutory provisions and any relevant case determinations.

14. It is clear from provisions of the Act, that Centrelink acted correctly in ceasing payment of wife pension to Mrs Oljaca from late August 2002. Once Mr Oljaca died, the applicant was no longer a “member of a couple” (s4.2) and only entitled to 14 weeks bereavement payment (ss22(2) and 147(1)).

15.     In the case of Mrs Oljaca, the SSAT drew attention to the fact she could apply for some other form of social security payment if she considered she qualified, but she does no appear to have done so.

16.     Counsel for the respondent claims there was no obligation on Centrelink to go further than this, but in any event there was no jurisdiction to transfer such an applicant directly to some other form of benefit.

17.     None of this aids the applicant’s case however, as she did not qualify for any other social security payment at the time of cancellation of wife pension, because she was not and is not an Australian resident and was not and is not in Australia.  Furthermore there is not any International Social Security Agreement between Australia and Yugoslavia (Serbia).  Part 2 of the Social Security (Administration() Act 1999 and Part 6 of the Social Security (International Agreements) Act 1999 make it clear that unless such an agreement exists, individuals residing outside Australia cannot gain reciprocal rights in social security or superannuation matters.

18.     In Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 it was held that the jurisdiction of the Tribunal is narrow in situations where a decision to cancel a pension or benefit is involved and once it is determined cancellation was the correct or preferable decision, the Tribunal has no jurisdiction to consider changes in circumstances since that date. The Tribunal notes, however, that Mrs Oljaca has suffered considerable personal difficulties in Serbia and must record some sympathy for her situation. Unfortunately, there is no discretion available to the Tribunal to intervene in any way to amend what the law provides, namely cessation of wife pension upon death of a member of couple, limiting payment to a 14 weeks bereavement period.

Decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B S Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  27 February 2004