Pisano and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 894

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 894

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1331

GENERAL ADMINISTRATIVE DIVISION		)
Re		PASQUALE PISANO

Applicant

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

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date8 October 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – application of deeming provisions for income test purposes – advice given by Centrelink officer – decision affirmed

Social Security Act 1991 s 1064

REASONS FOR DECISION

8 October 2008   Mr J G Short (Member)  

1.      Mr Pisano had gifted a residential property to his children.  By decision dated 8 August 2007, I affirmed a decision made by the respondent (the Department) on 9 March 2006 to include the value of the home transferred by Mr Pisano to his children, for assets and income test purposes.  Mr Pisano has not appealed that decision.

2.      On 9 September 2007, the Department made a decision to increase Mr Pisano’s rate of Age Pension to $236.62 a fortnight with effect from 20 September 2007.  That decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on 26 February 2008.  By application received on 31 March 2008, Mr Pisano has appealed the SSAT decision. 

mr pisano’s evidence

3.      Although referring to my previous decision in this matter, Mr Pisano confirmed that he understood that if he considered the decision to have been wrong, then his appropriate course of action was to appeal the decision to the Federal Court.

4.      In relation to the decision made by Centrelink on 9 September 2007, Mr Pisano said that he considered the decision to have been wrong for two reasons.  First, he said that it is inappropriate to deem him to be receiving income which in fact he has not received, and second, he said that the decision was wrong in the light of advice which he said he received from the Departmental representative who represented the Secretary at the hearing before me in July 2007. 

5.      Mr Pisano agreed with the values ascribed to his savings and assets as held by himself and his wife in September 2007 and also agreed his wife’s rate of income as it applied in September 2007.  As mentioned, his concern was, in part, the application of deeming provisions for assets test purposes.  Mr Pisano said that the Department’s representative at the earlier hearing should have advised him that even with the introduction of more favourable assets test provisions with effect from September 2007, the Department would still need to consider his income, including income deemed to be received, and that his rate of pension may be assessed with reference to income rather than assets.

consideration

6.      Dealing first with the issue of advice allegedly provided by the Department’s representative at the time of my decision in August 2007.  I have noted a record of a conversation between an Authorised Review Officer and the then Departmental representative, Ms Kitto (T14/46).  That record includes an indication from Ms Kitto that she did include in her submission to this Tribunal in July 2007 that Mr Pisano may have some increase in his rate of pension following changes to the assets test in September 2007.

7. I make no finding in relation to the exact words used by Ms Kitto in July 2007. It is unnecessary to make any specific finding on this matter for two reasons. First, even if Ms Kitto did say that Mr Pisano’s rate of pension would increase, as he suggests, by $140 a fortnight from September 2007, any such increase would have been irrelevant to the issues I considered in making my determination dated 8 August 2007. Second, Mr Pisano’s appropriate rate of Age Pension with effect from 20 September 2007 is, under the relevant legislation, to be calculated in accordance with s 1064 of the Social Security Act 1991 (the Act) regardless of any advice which may or may not have been provided by a representative during an appeal in July of that year.

8.      Under the Pension Rate Calculator A (for Age Pension) in s 1064-A1 of the Act, an assessor is required to “Compare the income reduced rate and the assets reduced rate: the lower of the 2 rates or the income reduced rate if the rates are equal, is the provisional annual payment rate”. 

9.      In the light of the above mentioned legislation, I consider that Centrelink acted appropriately in assessing Mr Pisano’s rate of pension with effect from September 2008 by using the income test and including in the assessment of income, income deemed to have been received from a deprived asset.

10.     Having regard to the value of Mr Pisano’s assets as in September 2007, including a deprived asset, together with income received by Mrs Pisano, I consider that the Department’s decision to increase Mr Pisano’s fortnightly rate of Age Pension with effect from September 2007 to a figure of $236.62 to have been an appropriate decision, that is one made in accordance with the governing legislation. 

11.     Mr Pisano said that he did not agree with the concept of deeming pensioners to receive income.  I have advised Mr Pisano that this Tribunal’s task is to ensure that the legislation has been applied as intended by Parliament.

12.     Mr Pisano appears to have lodged a claim for compensation under the  Compensation for Detriment caused by Defective Administration (CDDA) scheme.  It appears from a letter of response dated 22 September 2008 that Mr Pisano’s claim for compensation was based on inappropriate advice he said he was given in 2001.  That claim was rejected.  Mr Pisano may wish to again test his eligibility for compensation under the CDDA scheme in relation to what he says was inappropriate or incomplete advice provided to him by the person who represented the Department before this Tribunal in July 2007.  I make no comment in relation to the appropriate outcome of any such claim.

13.     I affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..........J Coulthard.............................................
  Associate

Date of Hearing  25 September 2008
Date of Decision  8 October 2008
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Ms L Giaretto

Centrelink Legal Services Branch