Ponnahennadige and Secretary, Department of Social Services (Social services second review)

Ponnahennadige and Secretary, Department of Social Services (Social services second review) [2018] AATA 2505 (27 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6750
Re:Nihal Ponnahennadige
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:27 July 2018
Place:Brisbane

I set aside the decision under review and substitute a decision that the applicant was eligible and qualified for age pension from 1 April 2015.
..........................[SGD].............................
Deputy President Dr P McDermott RFD
Catchwords
AGE PENSION – eligibility for age pension – qualifying for age pension – qualifying Australian residence – start day provision – International Agreements Act – international agreement between Australia and Japan – totalisation for Australian benefits
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth) (in force as at 4 April 2016)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
27 July 2018
BACKGROUND

On 14 March 2013, the applicant was granted a permanent Australian visa. The applicant entered Australia on 22 March 2013.
The applicant applied for the age pension on three separate occasions – 1 May 2013, 19 August 2014 and 1 April 2015. The claims of 1 May 2013 and 19 August 2014 were rejected by the Department. They are not subject to review for the purposes of this application.
On 13 April 2015, the applicant’s claim dated 1 April 2015 for age pension was accepted by the Department, with the date of effect from 22 March 2015.[1]
[1] Exhibit A, T-Documents, T17 and T18.
On 26 June 2015, the applicant applied for review of the Department’s decision requesting the Department to consider a back payment of 13 months.[2]
[2] Exhibit A, T-Documents, T21.
On 31 July 2015, an Authorised Review Officer (“ARO”) affirmed the decision under review.[3]
[3] Exhibit A, T-Documents, T22.
On 13 August 2015, the applicant applied for review to the Social Services and Child Support Division (“SSCSD”) of the Administrative Appeals Tribunal.[4]
[4] Exhibit A, T-Documents, T23.
On 28 September 2015, the SSCSD set aside the decision under review and remitted the decision back to the Department for reconsideration in light of additional documents provided to the Tribunal by the applicant.[5]
[5] Exhibit A, T-Documents, T24.
On 25 November 2015, the Department confirmed the original decision and determined that the applicant should be granted age pension from 22 March 2015 and no earlier.[6]
[6] Exhibit C, Respondent’s Submissions, Annexure A.
On 5 July 2017 the applicant wrote to the Department requesting a review of the decision.[7]
[7] Exhibit A, T-Documents, T27, p.229.
On 1 August 2017, an ARO affirmed the decision under review.[8]
[8] Exhibit A, T-Documents, T29.
The applicant applied for review to SSCSD and on 13 October 2017, the decision under review was affirmed.[9]
[9] Exhibit A, T-Documents, T2.
On 10 November 2017, the applicant applied for review of this decision to this Tribunal.[10]
[10] Exhibit A, T-Documents, T1.
LEGISLATION
Section 43 of the Social Security Act 1991 (Cth) (“the Act”) provides:
Qualification for age pension
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d) if the person reached pension age before 20 March 1997--the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1:       For qualifying Australian residence see section 7.
Note 2:       For pension age see subsections 23(5A), (5B) (5C) and (5D).

(1A) A woman is qualified for an age pension if:
(a) the woman has reached pension age; and
(b) the woman's partner has died; and
(c) both the woman and her partner were Australian residents when her partner died; and
(d) the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.
(3)  Subsection (1) has effect subject to subsection 6(3) of the Social Security (International Agreements) Act 1999.
The term “qualifying Australian residence” is defined by section 7(5) of the Act as:
(5) A person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Section 11 of the Social Security (Administration) Act 1999 (“Administration Act”) provides that a person who wants to be granted a social security payment must make a claim for the payment in accordance with this Division.[11]
[11] Social Security (Administration) Act 1999 (Cth) section 11(1).
Schedule 2 of the Administration Act outlines that the person’s start day in relation to the payment is the day on which the claim for social security payment was made.[12]
[12] Social Security (Administration) Act 1999 (Cth), schedule 2, Part 2, section 3.
Section 13 of the Administration Act outlines the deemed claim provision in relation to social security payments:
Deemed claim – person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(2) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii) that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(3) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person (the claimant ) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that:
(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;
the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(3A) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of fax, computer equipment or other electronic means.
(5) This section has effect subject to section 18.
Of relevance to the applicant’s claim is the operation of Schedule 23, Article 15 of the Social Security (International Agreements) Act 1999 (Cth) (in force as at 4 April 2016) (“the International Agreements Act”) which provides:
Article 15 – Totalisation for Australian Benefits
(1) Where a person to whom this Agreement applies has claimed a benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the legislation of Australia for that benefit;
(b) a period of Australian working life residence equal to or greater than the minimum period identified in accordance with paragraph 4 of this Article for that person; and
(c) a period of coverage under the legislation of Japan;
then, that period of coverage under the legislation of Japan shall be deemed to be a period in which that person was an Australian resident only if that period of coverage under the legislation of Japan is certified by the competent institution of Japan and only for the purpose of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia.
(2) For the purpose of paragraph 1 of this Article, where a person:
(a) has been an Australian resident for one continuous period which is less than the minimum continuous period required by the legislation of Australia for entitlement of that person to a benefit; and
(b) has accumulated a period of coverage under the legislation of Japan in two or more separate periods that equals or exceeds in total the minimum period referred to in subparagraph (a) of this paragraph;
the total of the periods of coverage under the legislation of Japan shall be deemed to be one continuous period in which that person was an Australian resident.
(3) For the purpose of this Article, where a period as an Australian resident and a period of coverage under the legislation of Japan coincide, the period of coincidence shall be taken into account once only by the competent institution of Australia as a period as an Australian resident.
(4) The minimum period of Australian working life residence to be taken into account for the purpose of paragraph 1 of this Article shall be:
(a) for the purpose of a benefit under the legislation of Australia that is payable to a person who is not an Australian resident, the minimum period required shall be twelve months, of which at least six months must be continuous; and
(b) for the purpose of a benefit under the legislation of Australia that is payable to an Australian resident, there shall be no minimum period.
SUBMISSIONS
Applicant’s Submissions
The applicant provided multiple submissions regarding his claim. The applicant submits that in taking into consideration the agreement between Japan and Australia, his eligibility for the age pension is based on the total period of 111 months of certified coverage, as well as his residency in Australia since 22 March 2013.
The applicant clarified that 19 months of the 111 months of certified coverage were deferred payments of arrears pension premium as evidenced by his receipts provided to this Tribunal.
The applicant provided an article from the Japan Times dated 27 October 2012 and submits that this article confirms that Japan introduced a new pension policy to allow for deferred arrears pension contributions. The applicant outlines that this new policy provides that people between the ages of 65 and 70 years can from October 2012 to 2015 make deferred arrears pension payments to help fulfil their 25 year contribution requirement.
Respondent’s Submissions
Start Date: The respondent considers that the general rule for the start date provisions apply in relation to the applicant’s case and contend that as the applicant made a claim on 1 April 2015, the applicant was qualified for age pension payments from 1 April 2015 and not 22 March 2015. The respondent submits that pursuant to the operation of section 11 of the Administration Act there is no basis in law to backdate a claim to a date when the applicant “may” have been qualified.
Deemed Claim: The respondent submits that the deemed claim provisions cannot apply as there is no evidence to support that the applicant contacted the Department in relation to a claim for social security payment and therefore the applicant was qualified for payment from that date of contact. The respondent also contends that there is no evidence to support that special circumstances apply, or that the applicant had a medical condition or other related circumstances which adversely affected his ability to lodge a claim earlier. As the respondent submits that the deemed claim provisions cannot apply, they submit that the applicant’s claim is then limited by the start date provisions meaning the applicant is only eligible to have been in receipt of the age pension from 1 April 2015.
The International Agreement – Japan / Australia: The respondent accepts that the applicant has claimed age pension under the International Agreements Act and had a period of coverage under the legislation of Japan. However the applicant had not accumulated the qualifying residence period of 10 years and pursuant to the operation of Article 15(4) of the International Agreement Act, the applicant was not subject to a minimum period of Australian working life residence for the purposes of Article 15(1)(b).
The respondent submits that the applicant’s qualifying period as an Australian resident commenced on 22 March 2013 when the applicant entered Australia on a permanent resident visa. The respondent contends that the applicant had only accumulated 96 months of coverage under the legislation of Japan as certified by a competent institution of Japan as required by Article 15 at the time he entered Australia on 22 March 2013. The respondent submits that the translated membership records provided by the applicant show that he only had 96 months of coverage between 16 May 1995 and 16 November 2004.[13]
[13] Exhibit C, Respondent’s Submissions, T24, p.224.
The respondent contends that despite the applicant returning to Japan on 12 August 2013 to make further contributions, pursuant to Article 15(3) of the International Agreements Act, these periods of coverage cannot be counted towards the applicant’s 10 years of qualifying experience.
The respondent submits that the earliest date the applicant had 10 years of qualifying residence as required by section 43(1) of the Act was on 22 March 2015 and pursuant to the operation of the start date provisions, the earliest date the applicant could have been paid the age pension was from 1 April 2015, being the date of his third claim.
CONSIDERATION
I do not have jurisdiction to review the applicant’s previously rejected claims for age pension. I am limited to reviewing the decision in relation to the applicant’s claim dated 1 April 2015.
In this regard, pursuant to the Administration Act, a person who wants to be granted a social security payment must make a claim for the payment in accordance with this Division[14] and a person’s start day in relation to the payment is “the day on which the claim is made”. [15] Pursuant to section 3 of the Administration Act, the definition of “social security payment” in the Social Security Act applies. That definition includes a “social security pension”, which also includes an age pension. The start day provision in the Administration Act[16] apply to a claim for age pension. The applicant’s start day in relation to payment of age pension is the day on which the claim was made, specifically 1 April 2015. The social security law provides that unless another provision applies, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.[17]
[14] Social Security (Administration) Act 1999 (Cth) section 11(1).
[15] Social Security (Administration) Act 1999 (Cth), schedule 2, Part 2, section 3.
[16] Schedule 2, Part 2, section 3.
[17] Social Security (Administration) Act 1999 (Cth) section 41(1).
For the purposes of the social security law, a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2.[18] It is important to have regard to section 6 of the International Agreements Act, which provides for the overriding of social security law by a scheduled international agreement. I have reviewed Schedule 23 which is the scheduled international agreement with Japan and there is no provision in the agreement which provides for an earlier start date.
[18] Social Security (Administration) Act 1999 (Cth) section 41(2).
I have considered whether this is a case where the applicant has qualified for age pension under section 6(3) of the International Agreements Act. However, that subsection does not apply in this case because there is no evidence that the applicant became qualified for age pension because of the operation of section 43(1)(c) of the Social Security Act.
I have concluded that the start date for the purpose of social security law is 1 April 2015. The applicant has in previous submissions sought favourable discretion be made for him to be paid age pension before that date. However, the Secretary (and this Tribunal) does not have any such discretionary power to determine an earlier start date.
While the applicant was afforded refugee status in Japan, he has acknowledged that he is not a refugee for the purpose of social security law.
The qualifying period of residence for age pension payments is 10 years. At the time the applicant entered Australia on 22 March 2013 he had 8 years of coverage certified by a competent Japanese institution. This would mean that the earliest possible date the applicant would have been eligible for age pension payments would have been from 22 March 2015, had the applicant made a claim on that date as it was exactly two years from when the applicant entered Australia as a permanent resident (having a total of 10 years of qualifying residence).
CONCLUSION

Due to the operation of the start day provision, the applicant was eligible for the payment of age pension from 1 April 2015 (and not 22 March 2015).
DECISION
I set aside the decision under review and substitute a decision that the applicant was eligible and qualified for age pension from 1 April 2015.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

......................[SGD]..................................
Associate
Dated: 27 July 2018

Date of hearing: 4 June 2018

Applicant: In person

Respondent’s Representative: Department of Human Services

[2018] AATA 2505

27 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Appeal

Procedural Fairness

Date of hearing:	4 June 2018
Applicant:	In person
Respondent’s Representative:	Department of Human Services