PETER WATERS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 428

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 428

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0677

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER WATERS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date9 June 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]..................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Suspension of payment when applicant recommenced full time employment – Applicant applied to have disability support pension restored – Application assessed under new rules/legislation – Whether applicant’s entitlement could be restored to the transitional rate – Applicant did not “continue to receive” pension on the relevant date - Decision under review affirmed.

Social Security Act 1991 (Cth) s 1064, Sch 1A cl 146

Social Security (Administration) Act 1999 (Cth) ss 38B, 68, 93, 96,

Social Security and Other Legislation Amendment (Pension Reform & Other 2009 Budget Measures) Act 2009 (Cth) Sch 6 Pt 1 & Pt 3

Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and de Waal [2009] AATA 635   

REASONS FOR DECISION

9 June 2010 Dr P McDermott, RFD, Senior Member  

1.      Mr Peter Waters (the applicant) is entitled to receive Disability Support Pension (DSP).  I have to decide how the calculation of his present entitlement to receive this benefit is governed.

HISTORY OF THE MATTER

2.      For some time the applicant was in receipt of DSP.  On 4 August 2009, the payment of this benefit was suspended as the applicant advised Centrelink of his return to full time work.  On that occasion the applicant did not advise Centrelink of the name of his employer and so was not eligible for working credits.

3.      On 27 November 2009, the payment of DSP to the applicant was restored.  On 21 December 2009, the applicant contacted Centrelink regarding his ongoing rate of DSP which was less than it had been prior to the suspension of this benefit in August 2009.  Centrelink advised the Applicant that he was ‘assessed under new rules/legislation’ as introduced from 20 September 2009.

4.      On 22 December 2009, the applicant requested a review of the decision on the basis that his DSP should have been restored to the transitional rate.  On 15 January 2010, the Authorised Review Officer affirmed the decision noting that the applicant did not qualify for payment under the transitional rules (old rules) because he was not receiving a DSP on 19 September 2009. 

5.      The Applicant applied to the Social Security Appeals Tribunal (the SSAT) for review of the decision.  The applicant stated that when he requested his DSP be suspended he was advised that if he could not handle the work, his pension would be reinstated to the same as it was before.  On 5 February 2010 the SSAT affirmed the decision under review.

6.      On 18 February 2010, the applicant applied to this Tribunal for review of the decision.

RELEVANT LEGISLATION

7.      The relevant legislation that I must apply in determining this application is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

suspension of disability support benefit

8. Disability support pension may be suspended under s 96 of the Administration Act which provides:

(1)       If:

(a)a person ceases to be qualified for disability support pension because the person obtains paid work that is for at least 15 hours per week; and

(b)the person has, within the notification period referred to in section 93, informed the Secretary that the person has obtained that work;

the Secretary may determine:

(c)that section 93 does not apply to the person's disability support pension; and

(d)       that the person's disability support pension is to be suspended.

rate of disability support pension

9. The rate of disability support pension is calculated by reference to Pension Rate Calculator A in s 1064 of the Act. The rate of a person’s entitlement to disability support pension is reduced by ordinary income, with that reduction calculated by reference to Module E of s 1064.

10. Section 1064 of the Act was amended by Schedule 6, Part 1 of the Social Security and Other Legislation Amendment (Pension Reform & Other 2009 Budget Measures) Act 2009 (Cth).  There was a change in the taper rate of the income test from 40 cents in the dollar to 50 cents in the dollar.

11.     Schedule 6, Part 3 of the Social Security and Other Legislation Amendment (Pension Reform & Other 2009 Budget Measures) Act 2009 (Cth) governs the application of the amendments.  The amendments made by the Schedule apply for the purposes of working out rates of social security payments for days on or after 20 September 2009. 

12. Savings and transitional provisions are contained in Schedule 1A to the Act. Clause 146 is headed ‘Transitional provision for rates of certain social security pensions on and after 20 September 2009’. Paragraph 1 provides that this clause applies if on 19 September 2009 a person was receiving DSP and the person continues (without a break) to receive that benefit.

ISSUES

13.     I have to determine whether the rate of DSP being paid to the applicant should be calculated in accordance with the ‘transitional provisions’.  This will require consideration of whether the applicant was receiving that benefit on 19 September 2009.

CONSIDERATION

14. I am satisfied that the decision by Centrelink to suspend his payment of DSP was the correct decision. The applicant at the hearing stated he received assurances that he would receive his benefit at the previous rate if he ceased employment. The applicant advised Centrelink that he was to be employed and that the suspension was done at his request as he was commencing work. The file note of 4 October 2009 that is in evidence before me records that the applicant advised Centrelink that he was to work for 38 hours per week. This is certainly in excess of the 15 hours per week of paid work which is contained in s 96 of the Administration Act.

15. I should add that this is not a case where s 93 of the Administration Act has any relevance as this is not a case where information was provided to Centrelink in response to a notice given to the applicant under s 68(2) of the Administration Act.

16. Clause 146 of Schedule 1A to the Act ensures that persons who are receiving DSP on 19 September 2009 are not immediately disadvantaged by the changes (including the adjusted taper rate). The transitional provisions will apply until such time as the recipient would be no worse off under the new provisions. The transitional provisions apply where on 19 September 2009 “the person continues (without a break) to receive” DSP: see cl. 146(1)(b).

17. I find that the applicant did not “receive” DSP on 19 September 2009 as the payment to him of DSP had been suspended in accordance with s 96 of the Administration Act.

18.     I have been assisted by the decision in Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and de Waal[1]. In that decision Deputy President Jarvis extensively analysed the meaning of “receive” under the Act:

As I have said, the purpose of the definition of “receive” is to define the period within which a person is deemed to be receiving a benefit by reference to entitlement to a payment, notwithstanding the actual date of payment, but where the definition itself uses the word “receiving”, that word should be given its ordinary meaning.  The dictionary meaning of the word “receive” was adopted by this tribunal in Re Secretary, Department of Social Security and Jessup (1999) 17 ALD 62 in interpreting a section of the Social Security Act 1947 (Cth) that referred to a person receiving certain benefits under that Act (although that decision did not entail interpreting ss 23(2) or (4) of the current SS Act, or any interpretation provision in the 1947 Act). According to The Macquarie Dictionary…the primary meaning of the word “receive” is to “take into one’s hands or one’s possession (something offered or delivered)”.  Mr de Waal did not “receive” a payment in this sense, because no payment was made to him with respect to 14 October 2008.

[1] [2009] AATA 635

19. In my view, the word “received” in clause 146 of Schedule 1A to the Act has the meaning “got in his hands”. I consider that the applicant had not “received” DSP on 19 September 2009 as required by Clause 146 of Schedule 1A to the Act. No payment of DSP was received “in the hands” of the applicant at any time between 4 August 2009 and 26 November 2009.

20. Having regard to my conclusion that the applicant had not “received” DSP on 19 September 2009, the transitional provisions have no application to the applicant. Consequently, from 27 November 2009 the applicant’s entitlements to DSP must be calculated in accordance with s 1064 of the Act as amended.

21. I have, for the sake of completeness, had regard to the provisions of s 38B of the Administration Act. The object of this provision is to treat a person in certain circumstances as having received an income support payment in respect of a continuous period even though the person did not actually receive such a payment during a part or parts of the period: s 38B(1).

22. Section 38B provides for determining the “continuous period in respect of which the person has received income support payments” (s 38B(2), (3), (4)). The provision does not deem a person to have received a payment in respect of an instalment period in which a benefit was not payable: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635 at [54]. I should add that the explanatory memorandum for the Bill which introduced s 38B noted at [53], that ‘there is no suggestion that the amendments were to affect the concept of receiving payments provided for in s.23’.

23.     I have provided my decision at the earliest opportunity in order for the applicant to apply for consideration of his defective administration claim.  I appreciate that at the time when the payment of DSP was suspended, the applicant may have received certain assurances concerning the restoration of DSP.  However, after the suspension of disability support pension Parliament passed the Social Security and Other Legislation Amendment (Pension Reform & Other 2009 Budget Measures) Act 2009 (Cth).  This legislation is binding upon the Secretary.

DECISION

24.     I affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:.......................[Sgd].......................................................
  Kate Slack, Research Associate

Date/s of Hearing  2 June 2010
Date of Decision  9 June 2010
The Applicant was self represented
For the Respondent                  Mr Matthew Hawker, Sparke Helmore