Pulitano and Department of Family and Community Services - [2000] AATA 606

DECISION AND REASONS FOR DECISION [2000] AATA 606

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/1970

GENERAL ADMINISTRASTIVE DIVISION     )
           Re      NATALINA PULITANO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date26 July 2000
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
             (Signed)
  J.A. KIOSOGLOUS MBE
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – reciprocal agreement between Australia and Italy – withholdings from arrears payment of Italian pension – whether in receipt of correct benefit in late 1980s
Social Security Act 1991 Schedule 3

REASONS FOR DECISION

26 July 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mrs Natalina Pulitano (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 22 November 1999 (T2) which affirmed a decision of an authorised review officer of the respondent dated 10 August 1999 (T31) which had affirmed a delegate's decision of 11 June 1999 (T27) to withhold $28,105.30 from arrears of the applicant's Italian Age Pension paid in respect of the period 1 September 1988 to 31 March 1999.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T32) and one exhibit lodged by the respondent (Exhibit R1). The applicant was represented by her son, Mr C. Dimarto, and the respondent was represented by Ms A. Smith, a departmental advocate.
The issue before the Tribunal is whether or not an amount of $28,105.30 was correctly withheld from arrears of Italian Age Pension paid to the applicant.
history of the application
The applicant claimed Widow Pension in January 1987 and following some difficulties and two subsequent claims made during 1987, was eventually granted pension with effect from 9 July 1987 (T20). The applicant then received Age Pension from January 1991.
In June 1999 the Department discovered that the applicant was to receive an Italian Age Pension with effect from 1 September 1988 (T26). Accordingly, a delegate of the respondent raised a debt in the amount of $28,105.30 representing amounts of Australian Age Pension paid to the applicant in the period 1 September 1988 to 31 March 1999 (T27). This amount was withheld from the Italian Age Pension arrears payment.
The decision was affirmed upon review by the authorised review officer and the SSAT.
applicant's submissions
Mr Dimarto, on behalf of the applicant, told the Tribunal of his mother's difficult working life, in both Italy and Australia and of her efforts in raising the family. He also stated that his father walked out on the family in the late 1980s, causing her to borrow money to live. He stated that it was the Department's choice whether to pay her the "dole" or "pension" and that she should have got the "dole" as she was wanting to work. He also stated that she did not in fact sign any of the forms that led to the initial receipt of Widow Pension. He further stated that she was illiterate. He submitted that it was unfair that unemployment benefits are not affected by the "reciprocal scheme" whilst the applicant's pension benefits are.
He told the Tribunal that the applicant has ongoing financial and health problems and that she was forced to live with him and his family and be dependent on others to survive. He also elaborated on the applicant's health problems.
He considered in the circumstances that no withholdings should be made from her Italian Age Pension entitlements. He submitted that it was unfair to withhold from the Italian Age Pension instead of raising a debt in respect of the Australian Age Pension, as the latter might enable the applicant to purchase a house where she could reside alone and care for herself.
respondent's submissions
Ms Smith submitted, on behalf of the respondent, that pursuant to the reciprocal agreement between the governments of Italy and Australia (T3), upon determination of a person having an arrears entitlement by one country, the other country is entitled to withhold from the arrears payment the amount that a person has, as a result, been overpaid.
She submitted that even had the applicant applied for Unemployment Benefit instead of Widow Pension, as at January 1991, when the applicant became qualified for Age Pension, her eligibility for Unemployment Benefit would have ceased. This means that there would have only been a reduction of $4,130 in withholdings were the applicant to have received Unemployment Benefit rather than Widow Pension.
She further submitted that when departmental officers were advising the applicant in 1987 about the most appropriate pension to claim, they could not be expected to appreciate that some twelve years later the applicant would receive arrears of Italian Age Pension.
discussion and findings
Article 16 of the agreement between Italy and Australia appearing at Schedule 3 of the Social Security Act 1991 provides (inter alia):
"…
4. Where:
(a)it appears that a person who is entitled to the payment of a benefit by one of the Contracting Parties might also be entitled to the payment of a benefit by the other Contracting Party, in either case whether by virtue of this Agreement or otherwise;
(b)the amount of the benefit that might be paid by that other Contracting Party would affect the amount of the benefit payable by the first-mentioned Contracting Party; and
(c)the amount that could be due in respect of the benefit by that other Contracting Party, whether by virtue of this Agreement or otherwise, is likely to include an adjustment for arrears of that benefit,
then
(d)that other Contracting Party shall, if the first-mentioned Contracting Party so requests, pay the amount of those arrears to the first-mentioned Contracting Party; and
(e)the first-mentioned Contracting Party may deduct from the amount of those arrears any excess amount of the benefit paid by it and shall pay any balance remaining to that person."
This agreement has been ratified and in effect since 1 September 1988. The Tribunal is satisfied that the provisions of sub-section 4 of Article 16 of the agreement have not been fettered by any other enactment or provision. The agreement provides the respondent with the power to act as they have done in this case. The respondent was entitled to deduct the appropriate sum representing Australian Age Pension that the applicant was not entitled to in the relevant period. It is not as if the applicant has been unduly penalised as against other benefit recipients, in that she has now received an amount of Italian Age Pension which is designed to represent that same period of entitlement.
Whilst the applicant may take issue with the methodology of recovery of the overpaid Australian Age Pension, this Tribunal is not empowered to review the mechanism by which the respondent elected in this case to seek recovery of monies owing. It would note that from the respondent's point of view, there is a clear policy advantage to effecting a one-off garnishee of the arrears payment as against chasing every person in the applicant's position in ongoing debt recovery proceedings. Even the administration of fortnightly deductions would be cumbersome in this scenario as against the mechanism of the one-off garnishee. In any event, the agreement between Australia and Italy expressly provides for this arrangement to occur, and the Tribunal has no legal basis to override that.
In relation to the applicant's claim that she should have received Unemployment Benefit ("the dole" in her words) instead of Widow Pension in 1987 the Tribunal notes that as from 1990, when the applicant began receiving Age Pension, she had no eligibility for Unemployment Benefit. The Tribunal agrees with Ms Smith that it is unreasonable to have expected departmental officers to have anticipated in 1987 an arrears payment twelve years down the track. There is no departmental error in suggesting to the applicant that Widow Pension was appropriate to her circumstances in 1987. Given the applicant's presentation to this Tribunal, it would not be surprised if the respondent had considerable difficulties in dealing with the applicant in 1987, as evidenced by the time and number of applications it took to put her pension in place. It is not appropriate for this Tribunal to cast its mind back twelve years in an attempt to work out whether this applicant was more suited to Unemployment Benefit as against Widow Pension. Given the indications in the documentary evidence, Mr Dimarto's account of those times and the applicant's presentation to the Tribunal, it would not consider, in any event, that Unemployment Benefit would have been the appropriate payment to make in all the circumstances.
Regardless, it considers that time has overtaken any claim the applicant may have had in this regard. If the applicant did not want to receive Widow Pension in 1987, it was up to her to apply for the benefit she did want. Whilst it remains unclear whether all documentation was read and understood by the applicant, enough documentation appears to have been translated such that she should have been able to appreciate exactly what benefit she was receiving. The Tribunal does not consider that it has any legal power to change the amount of the withholding, even if it were so inclined to adopt the logic of the applicant.
In conclusion, the Tribunal finds no discretionary mechanism by which it can effect the withholding, and in any event, in the circumstances of this case, any such discretion would be inappropriate to exercise. There is clear authority for what the respondent has done, and this Tribunal considers their actions to be correct as a matter of law. As previously explained, therefore, the Tribunal, in considering the evidence as a whole, is unable on the law to assist the applicant.
decision
Accordingly, for the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  19 June 2000
Date of Decision  26 July 2000
Counsel for the Applicant        Mr C. Dimarto (son)
Solicitor for the Applicant         -
Counsel for the Respondent    Ms A. Smith
Solicitor for the Respondent    Centrelink