PESQUET and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 706
•12 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 706
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0837
GENERAL ADMINISTRATIVE DIVISION ) Re BERNARD PESQUET Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date12 October 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. ..................[sgd]............................
Ms G Ettinger
Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – age pension and rent assistance – calculation – assets and income test – recipient of overseas income – decision under review affirmed
Administrative Appeals Tribunal Act 1975 s 25
Social Security Act 1991 s 1064
Social Security (Administration) Act 1999 ss 109, 179
Social Security (International Agreements) Act 1999
REASONS FOR DECISION
12 October 2011
SUMMARY
Ms G Ettinger, Senior Member 1. Mr Bernard Pesquet who is 79 years old, has many complaints about the way Centrelink has managed his, and his wife’s age pensions and rent assistance payments over the years. He has written various detailed submissions which include diagrammatic representations of the points he wants to make.
2. Mr Pesquet has lived in Australia for almost 40 years and worked in Australia for 25 years, and receives a pension from France. He married a Canadian citizen in 2000, who receives a pension from Canada. Their income is impacted by the exchange rate, and by the agreement on social security between Australia and Canada (no such agreement exists between Australia and France). Mr Pesquet believes he should receive more pension than his wife because he worked for such a long time in Australia, whereas his wife has never worked in Australia.
3. Mr Pesquet does not agree with the decision which the Social Security Appeals Tribunal (the SSAT) made on 2 February 2011, and has exercised his right to appeal the decision. However, he wanted me to consider a number of other matters for which this Tribunal does not have jurisdiction. I explained the limits of the jurisdiction to him, and the fact that he can, if he wishes, make further application to Centrelink in regard to those other issues.
4. The Tribunal was assisted by a very competent interpreter in the French language, Ms Waldburger. Mr B Slattery who represented the Respondent assisted by explaining various issues to Mr Pesquet.
5. I am satisfied that the decision of the SSAT is the correct or preferable decision in this case, and I have affirmed it. My reasons follow.
THE ISSUES BEFORE THE TRIBUNAL
6. This Tribunal only has jurisdiction to review matters as empowered by various legislative enactments, including the Social Security Act 1991 and Social Security (Administration) Act 1999. In this case, the Tribunal only has jurisdiction to conduct a review of a matter already decided by Centrelink, followed by the SSAT. The decision of the SSAT which Mr Pesquet is appealing is as follows:
On 2 February 2011 the Tribunal decided to set aside the decision and send the matter back for reconsideration in accordance with the direction that although Mr Pesquet’s age pension could not be calculated under the transitional provisions from 18 March 2010, the rate of his rent assistance is to be recalculated by applying the full partnered rate from 22 August 2010 until such time that Mrs Pesquet receives a rent increased pension.
This means the review is partly successful.
7. Accordingly, the decision reproduced above, is the only decision which this Tribunal can review at this time.
8. As can be seen from the above, the decision of the SSAT instructed Centrelink to recalculate Mr Pesquet’s rent assistance by applying the full partnered rate from 22 August 2010 until such time as Mrs Pesquet receives a rent increased pension. That was done, albeit with some delays, and Mr Pesquet has been paid arrears of rent assistance of $925.35 for the period 18 September 2010 to 13 May 2011 (between 22 August and 18 September 2010 Mr Pesquet was paid at the single rate which is why there was no arrears paid for this period). Mr Pesquet continues to receive the full amount of rent assistance paid as to a couple, because notwithstanding rent assistance is normally shared equally in the case of a couple, Mrs Pesquet cannot, under the terms of the Canadian Agreement, receive a rent assistance payment. The rent assistance question has been resolved.
9. Mr Pesquet says that the issues he wants me to decide in his favour are:
· the period during which he says that he received only 50% of the rent assistance; and
· the way in which his age pension has been calculated.
10. I note also for the sake of completeness that Mr Pesquet wrote to me on 31 August 2011 with further submissions and calculations in regard to his age pension. I asked the Registrar to thank Mr Pesquet for his letter, to send a copy to Centrelink, and to inform Mr Pesquet that we cannot take further evidence into account in relation to his claim once the evidence has closed (29 August 2011), and the decision has been reserved.
THE RELEVANT LEGISLATION
11. The law relevant to this application is found in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Social Security (International Agreements) Act 1999 (the International Agreements Act).
12. The rate of age pension is worked out in accordance with the Pension Rate Calculator A, and the method statement found in section 1064-A1 of the Act.
13. On 20 September 2009, the Federal Government made changes to the pension law. Transitional arrangements were introduced at the time with the purpose that no pensioner receiving a pension at the commencement of the changes to the income test would be worse off as a result of the changes.
BACKGROUND
14. Mr Pesquet has received age pension since 10 July 1997 shortly after his attainment of 65 years. He married a Canadian citizen in 2000, and from 15 May 2000 to 3 August 2003, his pension was cancelled because of the combined effect of his, and his wife’s income. Mr Pesquet reclaimed pension from 4 August 2003.
15. Since Mr Pesquet’s pension was granted again from 4 August 2003, it has been paid at a reduced rate because of the combined income of Mr Pesquet and his wife. Mr Pesquet’s pension ceased to be paid for the period 3 November 2008 to 16 March 2009 because of changes to the foreign exchange rate, but was restored after that date. His age pension was calculated as a member of a married couple and the income test was applied under section 1064 of the Social Security Act 1991.
16. Mr Pesquet receives pension payments from France and Mrs Pesquet receives a Canadian pension as well as Canadian superannuation. Mrs Pesquet has also been in receipt of age pension in Australia following a claim by her on 1 September 2009.
17. Certain changes to the legislation have impacted on Mr Pesquet’s pension. On Budget Night, 12 May 2009, the Federal Government announced changes to the income testing of pensions which would take effect from 20 September 2009. Transitional arrangements were put in place whereby the Government announced that no pensioners would be worse off as a result of the changes, subject to certain grandfathering provisions. That meant that if a person would receive less pension under the new legislation, then in order to prevent such disadvantage, their pension would be calculated pursuant to rules which applied before the change.
18. In 2009, Mr Pesquet’s pension and the rent assistance component changed a number of times. On 27 October 2009 Mr Pesquet requested a review of his rate of rent assistance. On 3 November 2009 a Centrelink delegate wrote to Mr Pesquet noting he had stated he should be receiving 100% of the rent assistance as was the case before Mrs Pesquet was granted age pension. The Centrelink delegate held that Mr Pesquet was being paid the correct rate of rent assistance, and did not change his pension rate. Mr Pesquet did not seek a further review of this decision at the time. That decision stands because it was not further reviewed by the SSAT, and this Tribunal therefore has no jurisdiction to deal with that period.
19. On 19 March 2010 Mr Pesquet advised Centrelink that he and his wife had separated, and that she had left Australia the previous day. A Centrelink delegate then assessed Mr Pesquet as a single separated person, and Mrs Pesquet’s pension was cancelled. As a result of his single status, Mr Pesquet’s age pension, including rent assistance, was increased from 18 March 2010. The payment to Mr Pesquet of the higher rate of pension as a single person triggered the cessation of the application of the transitional arrangements to him. This meant that any future calculations would be according to the new legislation.
20. On 9 September 2010, Mr Pesquet advised Centrelink that Mrs Pesquet had returned from overseas on 22 August 2010, and that they had reconciled, and were living together from that date. Mr Pesquet’s age pension was suspended pending further enquiries about his future entitlement. His age pension was recalculated using the rate calculator at section 1064 of the Social Security Act 1991, (the transitional provisions no longer applied), and taking into account the couple’s combined income and assets. A decision was made on 14 October 2010 to restore Mr Pesquet’s pension effective from 18 September 2010. Mrs Pesquet was again granted age pension. Once again there were fluctuations to the rate of age pension paid to Mr Pesquet due to the exchange rate.
21. In late October and early November 2010 Mr Pesquet had contact with Centrelink by telephone, in person and by letter. By letter dated 1 November 2011 Mr Pesquet requested that an authorised review officer look at his age pension payment and rent assistance payment.
22. On 15 December 2010 an authorised review officer wrote to Mr Pesquet and advised that the decision concerning his age pension rate was correct. The authorised review officer referred to the transitional provisions which applied from 20 September 2009, and found that as at 18 March 2010, the date before he advised Centrelink he had separated from his wife, his daily rate of pension was $42.4686. As this was lower than his new rate of $43.2876, pursuant to the transitional provisions, he was transferred to this new rate. The authorised review officer did not specifically refer to the level of rent assistance payable to Mr Pesquet.
23. On 23 December 2010 Mr Pesquet appealed to the SSAT. Centrelink provided information summarised at paragraph 24 of the SSAT decision. In its application of the law, the SSAT considered Mr Pesquet’s pension rate since March 2010. It had regard to the transitional provisions in effect from September 2009 discussed above, and also to the effect (on the pension), of Mr Pesquet’s separation from his wife in March 2010, and their reconciliation in August 2010. The SSAT dealt with Mr Pesquet’s request to be paid 100% of the rent assistance rather than 50%, and examined the Agreement between Australia and Canada. The SSAT concluded that Mr Pesquet should have been paid rent assistance at the full partnered rate from the date he and Mrs Pesquet reconciled, which was 22 August 2010. As already stated above, that decision has been implemented, and Mr Pesquet was paid arrears of rent assistance ($925.35), for the period 18 September 2010 to 13 May 2011.
24. The SSAT also addressed Mr Pesquet’s request that his pension rate since 2003 be reassessed. The SSAT found that the decision or decisions concerning Mr Pesquet’s rate of pension before 18 March 2010 had not yet been reviewed by an authorised review officer, and so decided it did not have jurisdiction to consider that issue. That applies similarly to the jurisdiction of this Tribunal (section 179 of the Administration Act, and section 25 of the Administrative Appeals Tribunals Act 1975).
MR PESQUET’S EVIDENCE
25. I took into evidence as Exhibits A1 – A4, correspondence and attachments from Mr Pesquet dated 21 March 2011, 12 April 2011, 9 June 2011 and 17 July 2011. Mr Pesquet also gave extensive oral evidence. He spoke about his dissatisfactions with calculations made by Centrelink in regard to his age pension and rent assistance. He was critical of the fact that the changes and sudden cessations of payment of pension and rent assistance by Centrelink seemed random to him. He did not accept that currency fluctuations and the foreign pensions from France and Canada impacted. He also considered that his length of residence and years of work in Australia should be taken into account.
26. Mr Pesquet complained that full explanations of the reasons for certain actions by the Respondent were not available. He also complained that whenever he became eligible for the age pension after it had been ceased arbitrarily, no one contacted him, and he was obliged to find that out without assistance, and re-apply.
27. He also did not accept what the SSAT, Mr Slattery and I told him about the fact this Tribunal does not have jurisdiction to consider whether his age pension and rent assistance entitlements were correctly calculated and paid before 18 March 2010.
THE TRIBUNAL’S CONCLUSIONS
28. In coming to a decision, I have taken into account the Applicant’s documents Exhibits A1 to A4, which contain his correspondence, calculations and submissions. I have also taken into account Mr Pesquet’s oral evidence, the legislation, the T-documents, and Exhibits R2 – R4, which are the Respondent’s documents. I explained the jurisdiction of this Tribunal to Mr Pesquet at the hearing, and in the paragraphs above.
29. I sympathise with Mr Pesquet’s struggle to understand how his age pension is calculated and why it has fluctuated over time. I think Centrelink would acknowledge that the calculation is complicated, and in Mr Pesquet’s case, the rate of payment has been influenced by a number of interacting factors, including legislative changes, changes in his personal circumstances, exchange rate variations and the effect of an international agreement.
30. Mr Pesquet needs to understand that an assumption operates that couples share their expenses, and pool their resources. It is for this reason that Mr Pesquet’s rate of pension is affected by the income received by his wife, notwithstanding that he makes no demands on her income. There have to be special reasons for a person who is a member of a couple not to be treated as a member of a couple for social security, rent assistance, and pension payment purposes.
31. As to rent assistance; I am satisfied that Mr Pesquet has received the arrears of rent assistance due to him, as directed by the SSAT, for the period 18 September 2010 to 13 May 2011, which is calculated as part of the total pension entitlement. Since Mrs Pesquet’s return to Australia in August 2010, and the couple’s reconciliation, the Applicant has been receiving the entire rent assistance for a couple, paid directly to him. There is nothing further I can decide in that regard. Mr Pesquet should note the SSAT’s statement that his entitlement to the entire rent assistance will only continue until Mrs Pesquet receives a rent increased pension.
32. I am mindful there was a short period from 20 September 2010 when Centrelink suspended Mr Pesquet’s age pension because its officers were making inquiries about his future entitlements. He was very annoyed about that. I note however, that after he had provided certain information to Centrelink, his pension was restored and re-started dating to 18 September 2010.
33. The only other issue before the Tribunal is whether Mr Pesquet has been paid the correct rate of age pension on and from 18 March 2010.
34. As the SSAT explained in its decision, and Mr Slattery and I also informed Mr Pesquet, this Tribunal does not have jurisdiction to deal with any periods prior to 18 March 2010. Mr Pesquet can lodge further applications with regard to periods during which he considers his age pension was not paid correctly before 18 March 2010, with Centrelink, if he wishes. However, both the SSAT and Mr Slattery have brought to Mr Pesquet’s attention the fact that there is a limitation on payment of arrears pursuant to s 109 of the Administration Act. Unless a request to review a decision is made within 13 weeks of the decision being made, a favourable determination, if one is made, can only take effect on the date the application for review was made. Mr Pesquet should obtain advice regarding whether it would be worthwhile to seek further review of Centrelink decisions. I acknowledge Mr Slattery’s assistance to Mr Pesquet in that regard.
35. I am satisfied that the Tribunal has no power to review Mr Pesquet’s age pension or rent assistance entitlements before 18 March 2010 because they have not previously been reviewed by an Authorised Review Officer or the SSAT. I note further that the SSAT explained that to Mr Pesquet at paragraph 53 of its decision of 2 February 2011.
36. As to whether Mr Pesquet has been paid the correct rate of age pension on and from 18 March 2010; I have noted that Mr Pesquet notified Centrelink that he and his wife had separated from that date. Accordingly Centrelink was required to assess and recalculate Mr Pesquet’s age pension (including his rent assistance), at the single rate. The new rules which came in on 20 September 2009 were in place by then, and I noted that Mr Pesquet’s pension had to be calculated pursuant to section 1064 of the Act. That resulted in an amount less than what he was receiving under the transitional rules. Accordingly, it was his right to be paid the higher rate, and that was arranged for him.
37. Once Mrs Pesquet returned to the marriage on 22 August 2010, Centrelink was required to recalculate Mr Pesquet’s age pension and the rent assistance component on the basis of the couple’s combined income and assets, and taking into account their respective foreign pensions. The transitional rates no longer applied at this time, and Centrelink calculated Mr Pesquet’s pension pursuant to section 1064 of the Act. I am satisfied that that was done correctly.
38. While Mr Pesquet may consider the way the pension is calculated is unfair, I am bound to make the correct or preferable decision according to the law.
DECISION
39. The Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
Signed: ............[sgd]....................................................................
AssociateDate of Hearing 29 August 2011
Date of Decision 12 October 2011
Applicant Mr B Pesquet, Self Represented
The Respondent Mr B Slattery, Department of Human Services
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