Perosh and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2439

Perosh and Secretary, Department of Social Services (Social services second review) [2021] AATA 2439 (23 July 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0054

Re:Tony Perosh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:23 July 2021  

Place:Sydney

The decision under review is affirmed.

................................[SGD]........................................

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – age pension – issue: whether arrears can be paid to the applicant – applicant’s circumstances considered – section 110 of the Social Security (Administration) Act 1999 (Cth) considered – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

Mr S Evans, Member

23 July 2021

1. The applicant, Tony Perosh, was in receipt of age pension when he purchased a new residence. Owing to an error by his solicitors, he was deemed to have gifted part of the residence to his sons and consequently his age pension was reduced. The error was corrected and Mr Perosh contends he should be back paid the reduction in his age pension from the date his pension was reduced. The Secretary of the Department of Social Services (“the Secretary”), contends he is only eligible for the full age pension from the date at which the Secretary was notified that the error was corrected. 

   BACKGROUND

2. In December 2015 Mr Perosh was in receipt of age pension. When he separated from his wife, he used some of the funds from the sale of their matrimonial home to purchase a new property in which to live. Mr Perosh notified Services Australia (formerly known as the Department of Human Services) that he had purchased a property on 3 December 2015 and duly provided a copy of the certificate of title for the property. The certificate of title, dated 15 July 2015, recorded that the property was registered in the names of Mr Perosh and his two sons as joint tenants in equal shares. 

3. Having listed his two sons on the certificate of title, Mr Perosh was deemed by the Secretary to have disposed of two thirds of the value of his new property. The disposal of assets means that they are, minus a disposal free limit, considered an asset for the purpose of calculating an individual’s rate of age pension. Services Australia reduced Mr Perosh’s age pension effective 9 July 2015, the date on which the property was purchased. 

4. Mr Perosh did not intend to list himself and his two sons as joint tenants in equal share and submits that his solicitors made an error in listing them on the certificate in this way.

5. Mr Perosh sought review of the decision to reduce his rate of age pension and it was considered by the Social Services and Child Support Division (“AAT1”) which affirmed the decision. Mr Perosh sought review of the AAT1 decision at the General Division of the Tribunal and on 24 January 2017 the decision was again affirmed.

6. On 15 September 2016 Mr Perosh provided Services Australia with an updated certificate of title for his property, issued on 11 August 2016. The updated title recorded the property as being held by Mr Perosh and his two sons as tenants in common, with Mr Perosh holding a 198/200 share and his sons each holding a 1/200 share.  

7. Services Australia agreed to pay Mr Perosh pension arrears for the period of 15 September 2016 to 23 November 2016. 

8. On 17 October 2019 Mr Perosh requested review of the decision to increase his rate of age pension from 15 September 2016 on the basis that he wanted his age pension reassessed from 9 July 2015, the date from which his rate of age pension was initially reduced. The Secretary’s delegate reviewed the decision which was affirmed. The matter was considered by the AAT1 which affirmed the decision on 7 December 2020. Mr Perosh now seeks review of the decision at the General Division of the Tribunal. 

   ISSUES FOR THE TRIBUNAL

9. The issue to be decided is whether Mr Perosh can be back paid age pension earlier than 15 September 2016.

   LEGISLATION

10. The relevant legislation is contained in the Social Security Act 1991 (Cth) and the Social Security Administration Act 1999 (Cth) (“the Administration Act”). The Social Security Guide contains relevant policy.

11. Section 110 of the Administration Act provides for the date of effect of a favourable decision following notification of the occurrence of an event or change of circumstances:

    110  Date of effect of favourable determination

    (1)       Subject to subsections (1A) to (11A) (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:

    (a)       on the day on which the person so informed the Department; or

    (b)       on the day on which the event or change occurred;

    whichever is the later.

    CONSIDERATION

12. The updated title to Mr Perosh’s property was issued on 11 August 2016. From that time onward the Mr Perosh may have been entitled to be paid the age pension at a higher rate as he was no longer deemed to have disposed of the asset that led the initial reduction. 

13. However, Mr Perosh did not notify Services Australia of the change of title to his property until 15 September 2016.   

14. The Secretary contends that as Mr Perosh notified Services Australia on 15 September 2016, arrears of age pension is not payable prior to this date.

15. Section 110 of the Administration Act states that the date of effect of a favourable determination is the latter of the day on which the person informed the Department or the day on which the event or change occurred.

16. The exemptions provided for by subsections 110(1A) through 110(11A) of the Administration Act do not apply nor are they contended to by Mr Perosh. I am satisfied that the law has been applied correctly in this case and accept that section 110 of the Administration Act affords little in the way of discretion.

    CONCLUSION

17. It is not difficult to understand why Mr Perosh is aggrieved by the course of events which led to his reduction in age pension. There is no evidence that indicates the change of title brought any benefit to him, but it has clearly caused him considerable emotional stress and reduced his income. However, the law is clear that until he notified Services Australia, he was ineligible for the higher age pension payment. Consequently, the decision under review will be affirmed. 

    DECISION

18. For the reasons stated above, the decision under review is affirmed. 

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...................................[SGD].....................................

Associate

Dated: 23 July 2021

Date(s) of hearing:	8 June 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Ms B Dzang, Services Australia