Polymenakos and Secretary, Department of Family and Community Services

[2000] AATA 215

DECISION AND REASONS FOR DECISION [2000] AATA 215

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     NoV1999/834

GENERAL ADMINISTRATIVE DIVISION          )          

Re      MARIA POLYMENAKOS 

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  

Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member     

Date15 March 2000

PlaceMelbourne

Decision      The decision under review is affirmed.   

........Sgd. Mr J. Handley........
  Senior Member
CATCHWORDS
Social Security – Wife's pension – granted in 1978 – 1947 Act repealed – 1991 Act proclaimed – pension cancelled in 1991 – absence of residency – decision affirmed.

REASONS FOR DECISION

15 March 2000        Mr J. Handley, Senior Member                 

1. The applicant applies to review a decision of the Secretary of the Department of Social Security, made on 1 July 1991.  By reason of the decision having been made on that date there was no obligation (as has existed since 1993) for the decision to be reviewed by an Authorised Review Officer ("ARO").

2. Since July 1997 payments previously made by the Department of Social Security are administered by the Commonwealth Services Delivery Agency, Centrelink. 

3. On 25 June 1999 the Social Security Appeals Tribunal ("SSAT") reviewed the decision that was made by the Department of Social Security on 1 July 1991. It is not apparent from the documents filed pursuant to s.37 of the Administrative Appeals Tribunal Act by the respondent, why the applicant did not lodge an appeal until 22 January 1999. This decision has been made by reference to submissions filed by both parties. Both parties requested that the decision be made "on the papers". The applicant is a resident of Greece.

4. The facts are not in dispute and may be briefly summarised as follows-

5. The applicant claimed wife's pension on 5 September 1978.  Payments commenced shortly thereafter. On 1 October 1979 Mrs Polymenakos departed Australia and has since lived in Greece.  The Department continued to make payments of wife's pension to Mrs Polymenakos until 30 June 1991 when payments ceased. 

6. When Mrs Polymenakos departed Australia, her entitlement to wife's pension was determined under the former Social Security Act, which was proclaimed initially in 1947.  A new Social Security Act was introduced into the Parliament and proclaimed in 1991. 

7. Section 147 of the 1991 Act provides that a woman is qualified for wife's pension if she is a member of a couple and who has a partner who is receiving age pension, disability support pension, or disability wage supplement.  Mrs Polymenakos qualified under that provision.

8. Mrs Polymenakos however is disqualified under s.1216 of the Act which provides as follows-

   "Subject to s.1216B, if

   (a)a woman has been an Australian Resident; and

   (b)she has been outside Australia continuously for a period of 12 months; and

   (c)on the day after the 12 month period ends, she is not in Australia or a specified foreign country;

   (d)she is disqualified for

   (e)wife pension; and

   (f)……………. "

9. It is the respondent's case that Mrs Polymenakos is disqualified from receipt of wife pension under s.1216 because at 30 June 1990 she had been outside Australia continuously for a period of 12 months and at 30 June 1991 she was not "in Australia or a specified foreign country".  For the purpose of this application, Greece is not a specified foreign country.

10. The decision to end payments apparently follows a review of pension entitlements to persons who are not residing in Australia.  Mr Baker on behalf of the respondent annexed to his Statement of Facts and Contentions an extract from the Amending Bill to the 1991 Act where the intent of the legislature was to disqualify persons from receipt of pension who were previously Australian residents but who had been outside Australia continuously for a period of 12 months. 

11. The amending legislation also referred to "entitled persons", being persons who had been Australian residents for at least 10 years.  Mrs Polymenakos is not an "entitled person" because she had not had 10 years residency in Australia before she left to take up what appears to be permanent residence in Greece in 1979.

12. Counsel who had been instructed to appear on behalf of Mrs Polymenakos argued in submissions filed with the Tribunal, that Mrs Polymenakos had been assured when she departed for Greece in 1980 that she would have a continuing entitlement to receive benefit.  It was submitted that she relied upon that assurance and had she known that benefits would ultimately end, she may not have returned to Greece.  It was submitted that the consequences of ending benefits in the circumstances of this application are "unjust".  It was also submitted that the ending of benefits have caused financial hardship and that Mrs Polymenakos is required to reside with her husband in Greece because of his deteriorating health.  It was submitted that "natural justice" requires this Tribunal to take these matters into account and that it should be decided that the legislation upon which the respondent relies should not be taken into account in assessing her rights to ongoing pension.
    Conclusion & Reasons For Decision

13. The decision under review must be affirmed.

14. The clear legislative intent was to end benefits to persons residing overseas who were either not "entitled persons" or who did not have 12 months continuous residency.  This intent is also apparent by s.1216 of the Act.

15. Whilst it appears that Mrs Polymenakos was assured under the previous legislation that she would have an ongoing entitlement to benefit, that legislation has subsequently been repealed and replaced by the 1991 Act. 

16. There is no warrant to disregard the legislation in force at the time the decision under review was made (which remains in force to the present time). 

17. It is not apparent from the documents filed why Mrs Polymenakos waited 8 years to challenge the decision under review in these proceedings however it would appear that the submission of her being in extreme financial hardship has little merit.  That is to say, that part of the applicant's submissions might have had more credence had the decision to end benefits been challenged shortly after the decision was made. 

18. It is not clear to me what is intended by the expression 'natural justice'.  What is clear however is that the legislation, being clear and unambiguous, must be applied, despite unfortunate consequences

19. The decision under review will be affirmed.

    I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

    Signed:         ...Carolyn Irons ............................................
      Secretary

    Date/s of Hearing  on the papers
    Date of Decision  15 March 2000
    Counsel for the Applicant         
    Solicitor for the Applicant          
    Counsel for the Respondent     
    Solicitor for the Respondent