Pitt and Secretary, Department of Family and Community Services - [2002] AATA 957

DECISION AND REASONS FOR DECISION [2002] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1015

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Una Beatrice Pitt
  Applicant
           And    Secretary, Department of Family & Community Services
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date21 October 2002
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Ms S M Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – Portability – International Agreements – Working Life Residence in Australia

LEGISLATION
Social Security Act 1991 ss 7, 23, 1220A, 1220B, 1221, Schedule 2, Schedule 4

Social Security (Administration) Act 1999 s180

Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, Schedule 1

AUTHORITIES
Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177; (AAT 2240, 18 July 1985)
Re Gnisios and Secretary, Department of Social Security (1996) 2 SSR 31; (AAT 10759, 22 February 1996)
Re Zaharakis and Secretary, Department of Social Security (AAT 11254, 20 September 1996)
Re Wybrow and Secretary, Department of Social Security (1993) 71 SSR 1025; (AAT 8321, 19 October 1992)
Re Goodfellow and Secretary, Department of Social Security (1993) 71 SSR 1024; (AAT 8296, 8 October 1992)

REASONS FOR DECISION

21 October 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") of a decision made by the Social Security Appeals Tribunal ("the SSAT") in May 2000 (T2) which affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services ("the Department") made on 13 March 2000 (T74). The ARO reduced Ms Una Pitt's working life residency in Australia to 132 months. This reduced the amount of Australian Age Pension payable to Ms Pitt after 12 months of her living in England. The ARO's decision varied the original decision of a delegate of the Respondent, the Secretary, Department of Family and Community Services, made on 25 February 2000 which calculated Ms Pitt's rate of Age Pension for portability purposes, using an Australian working life residency of 179 months (T71). On 4 January 2002, the Tribunal was advised by the Respondent that pursuant to subsection 180(1) of the Social Security (Administration) Act 1999, a delegate of the Respondent had varied the decision to be reviewed by the Tribunal, determining that Ms Pitt's working life residence is 124 months (Exhibit R2).
By letter of 7 October 2001 addressed to Welfare Rights Centre (Exhibit A1), Ms Pitt requested that a determination of this matter be made on the papers. At a Telephone Directions Hearing held on 27 November 2001, the Respondent, represented by Mr J Kenny, Departmental Advocate, consented to this course of action. Hence, pursuant to section 34B of the Administrative Appeals Tribunal Act 1975, a hearing was held on the papers.
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T76) and the following exhibits:
Exhibit No.   Description Date
A1      Submission by Ms Una Pitt, the Applicant         7 October 2001
A2      Further submissions by Ms Pitt     10 January 2002 20 January 2002
R1      Respondent's Statement of Facts and Contentions     4 January 2002

ISSUES

The issue in this matter relates to the rate of Australian Age Pension that Ms Pitt is entitled to receive now that she is living in England. Central to a determination in this matter is the issue of the length of Ms Pitt's working life residence in Australia.
LEGISLATION
A determination in this matter requires consideration of a number of pieces of legislation, namely:
Social Security Act 1991 ("the Act");
Social Security (Administration) Act 1999 ("the Administration Act").
Section 7 of the Act deals with Australian residence definitions. Subsection 7(2) of the Act deals with the definition of an Australian resident and subsection 7(3) of the Act provides factors to which regard must be had in determining if a person resides in Australia. Subsections 7(2) and 7(3) of the Act state:
"7(2)    An Australian resident is a person who:
(a)       resides in Australia; and
(b)       is one of the following:
(i)        an Australian citizen;
(ii)       the holder of a permanent visa;
(iii)the holder of a special category visa who is likely to remain permanently in Australia;
(iv)the holder of a special purpose visa who is likely to remain permanently in Australia.
Note:For holder, permanent visa and special purpose visa see subsection (1).
7(3)In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a)        the nature of the accommodation used by the person in Australia; and
(b)the nature and extent of the family relationships the person has in Australia; and
(c)the nature and extent of the person's employment, business or financial ties with Australia; and
(d)         the nature and extent of the person's assets located in Australia; and
(e)         the frequency and duration of the person's travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
…"
Section 23 of the Act deals with general definitions and subsection 23(5C), amongst other matters, states that a woman being born between 1 July 1935 and 31 December 1936 reaches pension age when 60 years and six months of age.
Part 4.2, Division 3 of the Act deals with the rate of portable pensions and specifically section 1220A deals with pensions paid outside Australia. It provides that a person's pension or allowance rate is the portability rate calculated using the Pension Portability Rate Calculator found in section 1221 of the Act.
Section 1220B of the Act deals in general terms with the rate of pensions paid outside Australia and states as relevant:
"1220B Rate of pensions paid outside Australia—general
1220B(1)Subject to subsections (1A), (2), (3), (4) and (5), this section applies to a person if:
(a) the person commenced or commences to receive:
(i)      an age pension; or
(ii)     a disability support pension; or
(iii)     a wife pension; or
(v)     a bereavement allowance; or
(vi)     a widow B pension;
after 1 July 1986; and
(b)   the person left or leaves Australia after commencing to receive the pension or allowance; and
(c)   the person continues to be absent from Australia for more than 12 months; and
(d)   section 1221 (certain wife pensioners and widow B pensioners) does not apply to the person.
…"
Section 1221 of the Act deals with the rates of pension paid outside Australia. Section 1221: Module A deals with the overall rate calculation process and states:
"Module A—Overall Rate Calculation Process
Overall rate calculation process
1221-A1 This is how to calculate a person's portability rate:
Method statement
Step 1.Work out the period of the person's Australian working life residence using Module B: the result is called the residence period.
Step 2.Use the person's residence period to work out the person's residence factor using Module C below.
Step 3. Work out the rate that would be the person's pension or allowance rate if this Rate Calculator did not apply to the person: the result is called the person's notional domestic rate.
Step 4.Multiply the person's notional domestic rate by the person's residence factor: the result is the person's portability rate.
…"

Module B of section 1221 of the Act deals with calculating a person's Australian working life residence. A person's working life is the period beginning when the person turns 16 and ending when a person reaches pension age.
Also relevant are sections 1221-B2, 1221-B3 and 1221-B4 of the Act which state:
"1221-B2Subject to points 1221-B3 to 1221-B9, a person's period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person's working life during which the person has, up to that time, been an Australian resident.
Note: for the method of calculating the number of months in the period see points 1221-B3 and 1221-B4 below.
Calculation of number of months
1221-B3If a person's period of Australian working life residence would, apart from this point, be a number of whole months, the period is to be increased by one month.
1221-B4If a person's period of Australian working life residence would, apart from this point, be a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month."
Module C of section 1221 of the Act states:
"Module C—Residence Factor
Residence factor (period of Australian working life residence 25 years or more)
1221-C1If a person's period of Australian working life residence is 300 months (25 years) or more, the person's residence factor is 1.
Note:If a person's residence factor is 1, the person's pension will be payable outside Australia at the full domestic rate.
Residence factor (period of Australian working life residence under 25 years)
1221-C2If a person's period of Australian working life residence is less than 300 months (25 years), the person's residence factor is:
person's Australian working life residence
300
…"

Schedule 1 Item 126 of the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, which inserted Schedule 1A clause 128 of the Act, a saving provision applying to anyone absent from Australia immediately before 20 September 2000, has preserved the previous rule that the proportional rate began after 12 months absence from Australia. The current legislative situation is that the proportional rate commences after an absence of six months.
Schedule 2 of the Act deals with the Agreement on Social Security between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland ("the United Kingdom Agreement"). Article 4 of the United Kingdom Agreement deals with Age Pensions and states:
"ARTICLE 4
AGE PENSIONS
(1)Where a person is qualified to receive an age pension under the legislation of Australia otherwise than by virtue of the provisions of this Agreement, or the former Agreement, that pension shall be payable and the provisions of this Article shall not apply under that legislation.
(2)For the purpose of any claim by a person to receive an age pension under the legislation of Australia, that person shall be treated as an Australian resident for any period prior to that person's last arrival in Australia for which:
(a) that person; or
(b) if that person is a woman who is or has been married, her husband,
paid contributions, or had earnings or contributions credited, under the legislation of the United Kingdom.
(3)For the purpose of applying paragraph (2), any period during which the person (being a woman) and her husband both paid contributions or had earnings or contributions credited to them shall be counted only once.
(4)For the purpose of applying paragraph (2), a period when the person or, if the person is a woman who is or has been married, her husband paid contributions or had earnings or contributions credited which coincided with a period in which that person was an Australian resident, shall be counted only once.
(5)A person who receives from Australia a wife's pension or a spouse carer's pension by virtue of the fact that the spouse of that person receives an age pension by virtue of this Article, shall, for the purpose of this Agreement, be deemed to receive that pension by virtue of this Agreement."

Schedule 4 of the Act deals with the "Agreement Between the Government of Australia and the Government of New Zealand on Social Security". Article 8 states:
"Article 8
Eligibility for Australian Benefits by Former Residents of New Zealand
1.A person who does not meet the residence criteria for an age pension but who would otherwise be eligible for that benefit under the legislation of Australia shall be eligible for an age pension if that person:
(a)   has reached the age of eligibility under the legislation of Australia or under the legislation of New Zealand, for a corresponding benefit, whichever is the later age;
(b) is one of the following:
(i)      an Australian resident;
(ii)in Australia and has the intention of remaining in Australia for at least one year; or
(iii)     in Australia and has been in Australia for one year
at the date of grant of that benefit;
(c) either:
(i)was ordinarily resident in New Zealand immediately before arriving in Australia; or
(ii)     was, on entry into Australia, a New Zealand citizen; and
(d)   had been ordinarily resident in New Zealand for a period of not less than 10 years, or an aggregate of 10 years, after age 16.
2.A person who does not meet the residence criteria for an Australian benefit (other than an age pension) but who would otherwise be eligible for that benefit under the legislation of Australia shall be eligible for that benefit if that person:
(a)   has reached the age of eligibility under the legislation of Australia or under the legislation of New Zealand for a corresponding benefit, whichever is the later age;
(b) is one of the following:
(i)      an Australian resident;
(ii)in Australia and has the intention of remaining in Australia for at least one year; or
(iii)     in Australia and has been in Australia for one year
at the date of grant of that benefit;
(c) either:
(i)was ordinarily resident in New Zealand immediately before arriving in Australia; or
(ii)     was, on entry into Australia, a New Zealand citizen; and
(d)   had been ordinarily resident in New Zealand for a period of not less than 10 years or an aggregate of 10 years.
3.No person other than a widow or a widower shall be eligible for a sole parent pension by virtue of this Agreement or the legislation of Australia if that person's right to remain in Australia is dependent on that person being a New Zealand citizen, unless that person, immediately before the claim for benefit was lodged, has either:
(a) been continuously present in Australia for at least 26 weeks; or
(b) been an Australian resident for a period of at least 12 months.
4.Subject to this Agreement, a person who is ordinarily resident in New Zealand shall not be eligible for an Australian portable benefit where that person would be eligible for a New Zealand benefit.
5.A person who is present, but not ordinarily resident, in New Zealand shall not be eligible for an Australian portable benefit after a period which exceeds the period of temporary absence allowable for the corresponding New Zealand benefit under the legislation of New Zealand.
6.Where, at the date this Agreement comes into force, a person is ordinarily resident in or present in New Zealand and is in receipt of an Australian benefit, the competent authority of New Zealand shall calculate the rate of its benefit as if that Australian benefit was not being received and Australia shall cease paying its benefit to that person on any date New Zealand grants its benefit to that person.
7. No person shall be eligible for an Australian benefit at the same time as he or she is in receipt of a New Zealand benefit.
8.A person shall not be eligible for a benefit under this Agreement or under the legislation of Australia if that person fails to supply the competent authority of Australia or New Zealand with any information to which that person has access and which is legally required to establish:
(a) eligibility for a benefit under this Agreement; or
(b)   the amount which the Government of New Zealand is required to reimburse the Government of Australia under this Agreement."
Section 180 of the Administration Act deals with variations of decisions, before the Tribunal review has been completed. Of relevance is subsection 180(2) which states:
"2)If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:
(a)the SSAT had set aside the original decision and substituted the new decision; and
(b) the application were an application for review of the new decision.
…"

BACKGROUND

The following information is provided by way of background and is not disputed:

On 14 July 1935, Ms Pitt was born in Manchester, England (T42, p82). Ms Pitt lived in the United Kingdom from 1935 until 1958, working from 1953 until 1957 (T44, p84). Ms Pitt has lived and worked in a number of other countries including:
-Switzerland from 1958 until 1960 during which time Ms Pitt worked.
-Libya from 1960 until 1961 during which time Ms Pitt worked.
-Jordan from 1962 until 1964 during which time Ms Pitt worked.
-Italy from 1964 until 1966 during which time Ms Pitt worked.
-New Caledonia from 1966 until 1971 during which time Ms Pitt worked.
-Zambia in 1972 for one year during which time Ms Pitt worked.
-Rhodesia in 1973 during which time Ms Pitt worked.
-South Africa from 1974 until 1976 during which time Ms Pitt worked.
-New Zealand from 1976 until 1985 during which time Ms Pitt worked. (T44,p84)

On 1 September 1985, Ms Pitt's partner died (T27, p44). Ms Pitt lived in a defacto relationship with Mr V T Hinds since 22 August 1976 (T27, p43).
On either 8 October 1985 (T27, p44) or 10 October 1985 (T44, p84), Ms Pitt arrived in Australia.
On 5 November 1985, Ms Pitt took a job with the Australian Journalist Association (T58).
In February 1986, Ms Pitt worked for the Technology Transfer Council, Australia (T58).
In November 1986, Ms Pitt worked for the New South Wales Director of Public Prosecutions and also undertook a Court Reporting Course (T58).
Ms Pitt purchased an apartment in Australia (T37, p70).
In 1990, Ms Pitt left work because of a repetitive strain injury. She made a claim for workers compensation. There was an out of court settlement in the amount of $30,000.00. Prior to the settlement of the workers compensation case, Ms Pitt was in communication with the British authorities about her receiving a British pension (T45, p86).
On 13 June 1990, Ms Pitt lodged a claim for an Australian Widows Pension (T27, p43). From 21 June 1990, Ms Pitt was granted an Invalid Pension (T28).
On 28 January 1993, Ms Pitt became an Australian citizen (T35).
On 27 July 1995, in an "Application to continue Payment of Pension during an absence overseas", Ms Pitt recorded that she had lived in Australia for nine years and ten months (T54, p103).
On 28 July 1995, a Departmental Officer determined that Ms Pitt's Invalid Pension was portable indefinitely with the rate being determined according to the statutory formula after 12 months absence (T55, p116).
On 14 January 1996, Ms Pitt was aged 60 years and six months. She was therefore of a pension age for a woman and was accordingly transferred to the Age Pension.
On 14 February 2000, the Department was advised of Ms Pitt's intention to return to the United Kingdom to live permanently. She planned to leave Australia on 1 March 2000 (T61, p130). By letter of 14 February 2000, Ms Pitt was advised what her Age Pension would be and that the rate would reduce after she had been overseas for 12 months. The reduction was estimated to be 123/300th of the normal pension (T65). Ms Pitt was further advised that the Australian pension rate might further reduce if she was granted a foreign pension (T65).

Also on 14 February 2000, Ms Pitt sought a review through her local Federal Member of Parliament, in relation to the Departmental decision estimating the proportional reduction of Ms Pitt's Age Pension, once she had been away from Australia for 12 months (T66).
On 25 February 2000, a Centrelink delegate wrote to Ms Pitt advising that after 12 months of absence from Australia, an Australian Age Pension would be paid to her and would be reduced to 179/300th of the normal Australian Age Pension rate (T71).
On 26 February 2000, Ms Pitt replied to Centrelink's letter of 25 February 2000 (T72). Ms Pitt noted that she had retired from work at age 54 years and 9 months as a result of RSI. Ms Pitt was awarded $6,000.00 by the State Superannuation Board and an amount of $30,000.00 in an out of court settlement for workers compensation. After that, Ms Pitt tried to obtain work in various positions but was unsuccessful. Had this injury not happened, Ms Pitt had intended to work full time as a Court Reporter up to the age of 60 years and the for two or three days a week until age 65.
In relation to Ms Pitt's qualification for Age Pension to be paid overseas, she noted in her letter of 26 February 2000, that she worked for five years and three months between 1966 and 1971 in New Caledonia "as an Australian" being paid home leave to return to Sydney and finally being repatriated to Sydney (T72, p152). Ms Pitt stated in her letter that the Centrelink pension officer had confirmed that this period counted towards her overseas pension. She spent nine years and three months between 1976 and 1985 in New Zealand. Ms Pitt noted that men are allowed to count their time in Australia up until the age of 65, whereas women can only count up to the age of 60 and Ms Pitt considered this to be "sexist discrimination". Ms Pitt further noted that in terms of her health conditions, it is very costly to the Australian taxpayer to keep her in Australia. In this regard she referred to a hip replacement operation and her requirement that she needs an operation on bunions on both her feet. She would need in the near future a left hip replacement and a knee replacement. Ms Pitt estimated that if she remained in Australia her medical expenses would cost the Australian taxpayer $20,000.00 per year, whereas if she lives in Britain, the Australian Government would not have to pay her $3.30 weekly medical allowance. If she were able to live in Britain with her full Australian pension, this would amount, in Ms Pitt's estimation, to a saving of $20,165.00 per year (T72, p154). She would not be taking up valuable hospital space in Australia and the Medicare system and taxpayer would accordingly benefit by her departure.
Ms Pitt referred to the compassionate grounds for her returning to the United Kingdom, relating that all her family lived there whereas in Australia she is totally alone. Ms Pitt's family in the United Kingdom would assist with her arthritic condition saving the need for the involvement of the Australian social services and rehabilitation. Furthermore, Ms Pitt noted that 35 years ago, she had a baby daughter who was adopted out. She was now aware of her daughter's existence and wanted to be able to get to know her and her family in the United Kingdom. A reduced Australian pension with a British part-pension was not enough for Ms Pitt's survival in the United Kingdom, she concluded. Ms Pitt stated that she needed both pensions to survive. The cost of living is higher in the United Kingdom. Ms Pitt concluded in her letter that her matter should not be judged on her having insufficient working life in Australia to qualify for a full Australian pension overseas. It was primarily because she had become disabled through her work in Australia that it was necessary for a pension be granted to her. Therefore, Ms Pitt concluded that the government should honour its responsibility for her survival and the qualifying residential working time should be waived as it was not really the issue at stake for her. Ms Pitt explained that the anxiety of these issues was affecting her health. She was suffering from nervous exhaustion and digestive problems.
On 13 March 2000, an ARO decided that Ms Pitt's working life residence would be 132 months (T74, p161) commencing on 8 October 1985 and ending on 14 January 1996, when she achieved the pension age of 60 years and six months.
On 16 March 2000, Ms Pitt sought a review by the SSAT (T2, p7).
On 20 March 2000, Ms Pitt left Australia.
On 13 June 2000, the SSAT despatched a decision affirming the ARO's decision that Ms Pitt's working life residence was 132 months (T2, p6-12).
On 12 April 2001, this was the first Australian Age Pension payday affected by proportional portability.

DOCUMENTARY EVIDENCE AND SUBMISSIONS OF MS UNA BEATRICE PITT

By letter of 7 October 2001 (Exhibit A1), Ms Pitt submitted that her stay in New Caledonia in excess of five years was a period in which she did not pay Australian tax on her salary. She was working at the then South Pacific Commission which was financed by Australia, France, United Kingdom, New Zealand and the United States of America. Ms Pitt noted that the salaries were low to take into account that no one paid income tax especially as the cost of living in Noumea was high. She was employed as a Secretary in the South Pacific Commission which gave assistance and expertise to developing Pacific Islands. Ms Pitt had been recruited for her position in Sydney at the South Pacific Commission office.
Ms Pitt noted that the Darlinghurst Social Security Office had included her time in New Caledonia when calculating her Age Pension portability entitlement. It was only when she requested a review by an ARO that it was considered by that officer that her time with the South Pacific Commission did not count towards her Age Pension.
Ms Pitt wished to emphasise that she had carefully calculated her limited income as she had always intended returning to the United Kingdom in older age and had no idea that she would not be able to take a full Australian pension. Ms Pitt reiterated that she had to retire from work as a Court Reporter because she developed repetitive strain injury ("RSI") at age 55 and could not resume work after that. Her case had come before the New South Wales Compensation Court, and she was awarded $30,000.00 on the understanding that she was going to receive a full Australian pension. Writing from the United Kingdom, Ms Pitt stated that she could not afford to return to Australia.
Ms Pitt wrote that she was amazed that the decisions made by Australian courts such as the New South Wales Compensation Court can be disregarded. She stated that she could accept the fact that she only had slightly in excess of ten years working life in Australia and should only get a proportional pension. However, Ms Pitt submitted that she had her hands, arms and neck severely damaged by her work with the New South Wales Government. This occurred at a critical time as far as her future income was concerned as this was at an age when one is normally trying to maximise one's work income. She considered it unfair to be treated as if she had completed her normal working life without any work-caused problems. Ms Pitt noted that she had worked voluntarily for the RSI support group which gave counselling to the victims of this unpleasant condition.
In a further letter dated 10 January 2002, Ms Pitt wrote that she did not wish to say anything further about her service in the South Pacific Commission. She noted that if she were to succeed on review before the Tribunal, the small addition to her pension would help her survive. Ms Pitt submitted that she found it very disturbing that if she were a man, she would have been treated more beneficially in that she would have received an additional four and a half years working life.
Ms Pitt stated that she would like more consideration to be given to her other concern which is why a decision of the New South Wales Compensation Court had been overruled in that she had been, on her understanding, awarded $30,000.00 on the understanding that she would be in receipt of a full Age Pension. Ms Pitt submitted that at no time was she informed that if she chose not to remain in Australia she would lose over half of her pension as she had only accrued a little over ten years working life in Australia. Ms Pitt asked the question what did a "working life entitlement" have to do with becoming disabled through her work with the New South Wales Government. Ms Pitt submitted that she was prevented from working the last five and three quarter years of her working life because she developed RSI through employment as a Court Reporter. Ms Pitt wanted an explanation as to why she has been treated as though she were a person who had left work at retiring age, having not saved any money and having the expectation that the Australian government would finance her old age. At the time of her forced retirement, Ms Pitt had just paid off her mortgage and would have been able to spend the remainder of her working life saving for her retirement. Ms Pitt further submitted that it was pointless to have a court system in Australia if the decisions can be completely disregarded.
In her final written submissions in reply dated 20 January 2002 (Exhibit A2), Ms Pitt noted that the facts contained in the Respondent's Statement of Facts and Contentions held her out to have been leading a nomadic lifestyle. She explained that she had moved around to various countries throughout the world because of her service with the United Nations and the British Foreign Service. She was sent abroad as part of her employment with these organisations. Ms Pitt was concerned the Respondent was attempting to smear her character by making her out to be "a drifter" – a claim which she strongly refuted.
In relation to the Respondent's contention that the ARO was clearly wrong in his calculation of Ms Pitt's working life, she did not agree. Ms Pitt noted that when she first arrived in Sydney in 1966, she was employed for six weeks by L J Hooker Corporation on a fund-raising project to develop a Home for Blind and Deaf Children at North Rocks. This was prior to her joining this South Pacific Commission. In relation to her home leave to Sydney from New Caledonia, Ms Pitt noted that she had two home leaves of four months each paid to Sydney and back. On both occasions, Ms Pitt undertook temporary work in Sydney, once for a leading jeweller prior to a visit by the Pope and where the office was charged with valuing gifts of jewellery to the Pope. On the second period of leave, Ms Pitt worked in a secretarial agency undertaking typing work. The two temporary appointments lasted approximately one month each and the wages she received helped her to tour Australia. Ms Pitt spent eight months in Australia during the leave periods away from her substantive work in New Caledonia. Ms Pitt submitted that they were periods during her "working life". She was working in Australia and the ARO had correctly included them. Ms Pitt noted that when she first arrived in Sydney, she stayed with friends at McMahon's Point and paid rent. The two leave periods subsequently spent in Sydney she paid for rented rooms.
In England, since returning there to live, Ms Pitt has become a voluntary adviser with the Citizen's Advice Bureau.
Ms Pitt concluded her written submissions by noting that she had been "abandoned by welfare rights" [the Welfare Rights Centre, Sydney] as the organisation had no money to provide expensive legal representation or attend the Tribunal on her behalf. Ms Pitt asked that anything the Tribunal could do to maximise the Australian component of her Age Pension to maximise her extremely limited financial resources would be greatly appreciated.
RESPONDENT'S SUBMISSIONS
Mr Kenny, for the Respondent, submitted in the Respondent's Statement of Facts and Contentions dated 4 January 2002 (Exhibit R1), that in relation to jurisdiction in this matter, although there could be no operative decision on the reduced rate of Ms Pitt's Australian pension paid to her in the United Kingdom until she had been absent for 12 months until 1 March 2002, it is considered that there has been an operative and formally valid original decision as to the length of Ms Pitt's working life residence in Australia. It is possible, Mr Kenny submitted, to determine this at any time after she attained the pension age. If this were not the case, then the ARO, the SSAT and the Tribunal would all lack jurisdiction to review Ms Pitt's concerns.
Referring to the legislation, Mr Kenny submitted that section 1220A of the Act provides that a person's rate of Age Pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 of the Act. An age pensioner who has had less than 300 months or 25 years residence in Australia, will experience a reduced rate of portable pension, Mr Kenny submitted. The rate paid is proportional to the pensioner's actual Australian working life residence as a fraction of 300 months, as is provided in section 1221-C2 of the Act. It was noted that the fraction can not exceed one in the case of a person with longer than 25 years residence (section 1221-C1 of the Act).
Mr Kenny submitted that a person's working life under the provisions of section 1221-B1, begins at age 16 years and ends when the person reaches pension age. A person's period of Australian working life residence is the aggregate whole number of months during the person's working life when the person has been an Australian resident plus one month (section 1221-B3 and section 1221-B4). Subsection 23(5C) of the Act provides that the pension age for a woman born between 1 July 1935 and 31 December 1936 is 60 years and six months. The proportional rate currently commences after an absence of six months, but for persons such as Ms Pitt, who were already absent from Australian immediately before 20 September 2000, a savings provision contained within Schedule 1 Item 126 of the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, preserves the previous rule that the proportional rate began after 12 months of absence.
Mr Kenny submitted that at T2, the SSAT set out the definition of Australian resident contained within subsection 7(2) of the Act as it was prior to the amendments which came into operation on 20 September 2000, subsequent to the original decision. Mr Kenny submitted that the definition required residence in Australia coupled with citizenship or permanent residence visa status or special category / special purpose visa status with a likelihood of remaining permanently in Australia.
Mr Kenny submitted that Ms Pitt can not satisfy this requirement before the time when she settled in Australia in October 1985 after years of residence in New Caledonia, Africa and New Zealand. The September 2000 legislative amendments would make no material difference to this case.
The Tribunal was referred to subsection 7(3) of the Act which requires that regard must be had to six factors when deciding whether a person is residing in Australia.
Mr Kenny submitted that although Ms Pitt first arrived in Australia in 1966, her stay was brief, "barely weeks". Ms Pitt stayed at that time with a friend but then moved quickly to New Caledonia to work, taking all her belongings. Mr Kenny noted that Ms Pitt lived and worked in New Caledonia until 1971 and her only time spent in Australia was for annual leave. Ms Pitt then worked in three African nations and in 1976 moved to New Zealand with her belongings where she lived until 9 September 1985 where she acquired New Zealand citizenship and a partner. Ms Pitt travelled on a New Zealand passport. Sadly, Ms Pitt was widowed in New Zealand shortly before migrating to Australia but had no family ties, Mr Kenny submitted, in Australia before settling here first in October 1985. Mr Kenny submitted that only at that point did Ms Pitt begin to indicate any intention of remaining permanently in Australia. Ms Pitt was therefore, on Mr Kenny's submissions, not a resident of Australia prior to October 1985. Accordingly, Ms Pitt's Australian working life residence calculated and rounded up in accordance with the Act, is only 124 months from 10 October 1985 until 14 January 1996 when Ms Pitt reached the pension age.
The discipline of preparing a submission for the matter before the Tribunal has brought to light the ARO's error in terms of the calculation of the Australian working life residence. Mr Kenny informed the Tribunal that a Delegate of the Secretary of the Department has now varied the decision under review and corrected the payment system to reflect the 124 months working life residence. Accordingly, Ms Pitt's payments of Age Pension will undergo a small reduction from $144.95 per fortnight to $136.17 per fortnight. Pursuant to subsection 180(1) of the Administration Act, the new decision of the Delegate that Ms Pitt's Australian working life residence is 124 months becomes the decision under review by the Tribunal. The Respondent then submitted that the decision, as varied, should be affirmed.
Mr Kenny referred to other matters Ms Pitt raised in relation to her situation. He noted that there is no power to dispense with the normal operation of Social Security law in Ms Pitt's circumstances. Mr Kenny submitted that it is irrelevant that her participation in the workforce in Australia ceased as a result of her repetitive strained injury. Furthermore there was nothing which could be done in relation to Social Security law in terms of the quantum of her compensation not being large and that her United Kingdom pension would be unindexed if she received it in Australia. Furthermore, neither the Respondent nor the Tribunal, in the decision making process under the legislation, is able to take account of the fact that her residence in United Kingdom might remove the burden of Ms Pitt's medical care from the Australian Government. While it is noted that all of Ms Pitt's family reside in the United Kingdom and that a male pensioner would have four and a half years longer to accumulate working life residence, Mr Kenny submitted that these are not matters which are within the jurisdiction of either the Respondent nor the Tribunal.
Mr Kenny submitted that the Respondent understands and sympathises with Ms Pitt's disappointment but cannot lawfully increase the rate of her Australian Age Pension in relation to her Australian working life residence.
FINDINGS
The Tribunal has reached a decision in this matter taking into account all of the documentary evidence, the submissions, the legislation and case law.
Ms Pitt first arrived in Australia in 1966 for a short period. She returned to Australia to live on either 8 October 1985 (T27, p44) or 10 October 1985 (T30, p49; T44, p84). Ms Pitt became an Australian citizen on 28 January 1993 (T35, p54).
Ms Pitt left Australia on 20 March 2000 to live permanently in the United Kingdom. Ms Pitt wishes to have her full Australian Age Pension fully portable. She was transferred from the Invalid Pension to Age Pension following her attaining the age of 60 years and six months on 14 January 1996.
Ms Pitt's Age Pension is portable but under the Act there are certain requirements which have to be addressed. The Tribunal is satisfied that the International Agreements between Australia and the United Kingdom (Schedule 2 of the Act) and Australia and New Zealand (Schedule 4 of the Act) are not relevant to a determination in Ms Pitt's circumstances.
Because Ms Pitt has less than 25 years (300 months) residence in Australia, the rate of Australian Age Pension paid to her in England where she now permanently resides and has done so for over one year, must be calculated with reference to the relevant provisions of the Act. This is the law for which, in Ms Pitt's circumstances, there are no discretions. Under the legislation, the rate payable on a portable Australian Age Pension is calculated according to a formula which has as it basis the working life residence of a person. A person's Australian working life residence is a number of months in a period or aggregate of periods during which a person has been working and has been an Australian resident (section 1221-B2). As detailed earlier in this decision, subsection 7(2) of the Act defines an Australian resident. Ms Pitt was a resident because she resided in Australia and was an Australian citizen. Subsection 7(3) of the Act defines what is required to make a determination that a person is residing in Australia.

At the time Ms Pitt first arrived in Australia in 1966, she was employed by L J Hooker for approximately six weeks prior to working for the South Pacific Commission where she worked in Noumea, New Caledonia, from July 1966 until October 1971. Even though Ms Pitt came to Australia on two periods of leave during the five or so years she was working in New Caledonia, Ms Pitt worked only for a total of two months in different positions. The remaining six months were spent touring Australia as a tourist might do. Considering the legislative requirements contained within subsection 7(3) of the Act concerning whether or not a person resides in Australia, considering each of those criteria it could not be said on any of those matters that Ms Pitt did reside in Australia. In this regard, Ms Pitt had no family ties here, her belongings were not here, she had a permanent job in New Caledonia and was coming to Australia for the purposes of leave. The work that she undertook while she was on leave in Australia was casual and had the purpose of providing her with income which enabled her to travel around Australia, as she submitted in her written submissions to the Tribunal. The fact that the South Pacific Commission was financed by various countries including Australia, does not qualify Ms Pitt on the legislative requirements as a person who was residing in Australia and therefore she was not resident in this country.
There is considerable case law in relation to the principles outlined in subsection 7(3) of the Act in deciding whether or not a person is residing in Australia. In Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745, it was noted that the relevance and importance of the criteria for consideration in deciding whether a person is residing in Australia will vary in each case. A decision on such matters must be made having regard to all of the factors which are relevant. Issues such as a person's intentions to reside in a particular place must be taken into account, see: Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177; (AAT 2240, 18 July 1985); Re Wybrow and Secretary, Department of Social Security (1993) 71 SSR 1025; (AAT 8321, 19 October 1992) and, Re Goodfellow and Secretary, Department of Social Security (1993) 71 SSR 1024; (AAT 8296, 8 October 1992). Other issues which have been discussed in the authorities relate to the nature of the accommodation used by the person and the nature and extent of a person's employment, business or financial ties, see: Re Gnisios and Secretary, Department of Social Security (1996) 2 SSR 31; (AAT 10759, 22 February 1996) and Re Zaharakis and Secretary, Department of Social Security (AAT 11254, 20 September 1996).
The Tribunal finds that after Ms Pitt's years of work in New Caledonia, she did not return to Australia but worked in other countries as detailed in a Client Information Update (T44, p84). The Tribunal notes also Ms Pitt's very clear documentary evidence throughout the T Documents that she recorded that she first arrived in Australia either on 8 October 1985 or on 10 October 1985. These dates were recorded in answer to questions as to when Ms Pitt first arrived in Australia.
Applying the criteria set out in subsection 7(3) of the Act and considering the case law, the Tribunal finds that Ms Pitt cannot be considered to have resided in Australia, in the legislative sense, until 8 October 1985 at the earliest and thus cannot be considered as a resident of Australia earlier than this date. In so finding, the Tribunal has taken into account Ms Pitt's employment arrangements outside Australia and within, her relationships both inside and external to Australia both prior to and after 8 October 1985, her financial situation and intentions in terms of residence in Australia. Taking all these matters into account, the Tribunal is confirmed in its finding that before 8 October 1985, Ms Pitt was not residing in Australia and therefore was not a resident of Australia prior to that time.
The calculation of Australian working residence is therefore from 8 October 1985 until 14 January 1996 when she received the Age Pension. The Tribunal has calculated this period as being 124 months or 10 years and 3 months with the addition of one month as provided under section 1221-B3 and section 1221-B4 of the Act.
The Tribunal notes that under section 180(1) of the Administration Act, the Respondent is able to vary the decision of the ARO before the Tribunal considers the application for review. The Respondent accordingly varied the decision of the ARO determining that the Australian working residence was not 132 months but 124 months. The variation of the ARO's decision before review of this Tribunal is then permitted under subsection 180(1) of the Administration Act and the decision as varied, is taken to be the decision of the SSAT. The Tribunal thus on review considers that the SSAT's decision as varied in terms of the Australian working residence of Ms Pitt, calculated at 124 months is correct. Accordingly, in all the circumstances and taking into account all of the available evidence and submissions, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
In so deciding, the Tribunal does understand Ms Pitt's concerns about the reduction in her Australian Age Pension from the full rate. There is however no discretion allowed in the Act in terms of the issues that Ms Pitt raises.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.
Signed:         .....................................................................................
     Associate
Date of Hearing on the papers           7 March 2002
Date of Decision  21 October 2002
Representative for the Applicant                Self-Represented on the papers
Representative the Respondent                Mr J Kenny, Departmental Advocate