Sasterwan and Secretary, Department of Family and Community Services

[2002] AATA 538

DECISION AND REASONS FOR DECISION [2002] AATA 538

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2002/66

GENERAL ADMINISTRATIVE DIVISION          )          

Re      WAHYU SASTERAWAN  

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date12 June 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2002/66
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     WAHYU SASTERAWAN

Applicant

And:     SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  12 June 2002

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

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

Senior Member
CATCHWORDS

Social Security – Pensioner Education Supplement. Applicant in receipt of Disability Support Pension but refused education supplement due to newly arrived resident waiting period. Reciprocity with New Zealand benefits applies only to those benefits specified in the inter-government agreement.

Social Security Act 1991 – s1061PU and 3rd Schedule

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  12 June 2002
Date of Decision  12 June 2002

Solicitor for the Applicant           Applicant was self-represented
Advocate for the Respondent    Andrea Gracia,
  Department of Family and Community Services

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter N2002/66
By MR M.D. ALLEN, Senior Member
SASTERAWAN and SECRETARY DEPARTMENT OF
FAMILY AND COMMUNITY SERVICES
SYDNEY 12 JUNE 2002

MR ALLEN:   In this matter the applicant pursuant to an application lodged on 17 January 2002 seeks review of a decision by Social Security Appeals Tribunal made on 10 December 2001 which decision affirmed a prior determination by authorised review officer affirming a prior determination by a delegate of the respondent which rejected the applicant's claim for a pensioner education supplement.

The applicant made a claim for a pensioner education supplement on 16 May 2001, see document T8 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The claim was made with respect to a course which the applicant undertook at an organisation trading under the name, firm or style of the Taxi School. It is now history that initially the applicant's application was rejected on the bases that the Taxi School was not an authorised organisation.

The applicant was constrained to take that decision to a Social Security Appeals Tribunal and that tribunal on 8 August 2001 determined that the applicant was undertaking qualifying study for the purposes of a pensioner education supplement.  It would appear that it was only when the Social Security Appeals Tribunal fully investigated the matter that the applicant's claim was accepted, that is to say, that the earlier rejection by the department seems to have been made precipitously and without a full investigation.  However, suffice it to say that the applicant's claim was accepted to the extent that the Taxi School was recognised as a qualifying course for the pensioner education supplement.

The applicant states that originally he had made inquiries about the taxi education school and a person by the name of Sharon at a Centrelink call centre said that the course could be paid.  It was then rejected but the course was accepted as a course by the SSAT.  According to the applicant's evidence today a Mr Lockwood at a Centrelink office with whom he was dealing said to him words to the effect, if you can prove it is an approved course we will pay and later after the SSAT decision he said, I have no problem with that, we are going to pay you.

One can understand therefore that the applicant was somewhat disappointed to find that another reason was then advanced for rejecting his claim.  The reason advanced was that as a migrant to Australia he had to fulfil a qualifying period.  The applicant was born in Indonesia and migrated to New Zealand in or about January 1990.  He took out New Zealand citizenship and then using his New Zealand passport migrated to Australia on 26 February 2001.

At the time of his migration to Australia he was in receipt of the New Zealand equivalent of a disability support pension. Upon his arrival in Australia he applied for a disability support pension and this was granted with effect from 2 March 2001. There are, however, different statutes and agreements applying as between the grant of a disability support pension and the grant of a pensioner education supplement. Dealing first it is accepted that the applicant at the time he applied for the pensioner education supplement was an Australian resident pursuant to subsection (2) of section 7 of the Social Security Act 1991.

Section 1061PU of the Social Security Act was inserted into that Act by Act number 45 of 1998. Subsection (1) of the said section reads:

Subject to this section a person is subject to a newly arrived residence waiting period if the person (a) has entered Australia on or after 4 March 1997 and (b) has not been an Australian resident in Australia for a period of or periods totalling 104 weeks.

It is to be remembered that the applicant arrived in Australia on 26 February 2001 and made his application on 16 May 2001. The applicant queries why if the pension education supplement was refused he was entitled to disability support pension. That is explained pursuant to the agreement between the government of Australia and the government of New Zealand providing for reciprocity in matters relating to social security which is schedule 3 to the Social Security Act 1991.

Article 2 of that agreement states:

(1)except as provided under paragraph 2 this agreement shall apply to the following laws as amended at the date of signature of this agreement and to any legislation that subsequently amends, supplements, consolidates or replaces them:

(a)in relation to Australia the Social Security Act 1991 insofar as Act provides for, applies to or affects the following benefits:

1.age pension

2.disability support pension

3.widow B pension

4.sole parent pension

5.wife pension

6.additional family payment to persons in receipt of the above benefits

As the agreement provides that the said agreement shall override effect the Social Security Act insofar as it applies to specific benefits which I have enumerated above that is the reason why the applicant was able to receive a disability support pension pursuant to the Social Security Act 1991 as from the time he applied after arriving in Australia. However, the agreement does not deal with the pensioner education supplement. So far as that benefit is concerned the applicant is covered by the provisions of section 1061PU of the Social Security Act 1991 and he is subject to the newly arrived residence waiting period. The decision under review must as a matter of law therefore be affirmed.

The only other matter to mention is that although certain statements may have been made to the applicant regarding the acceptance of his claim or not those statements by Centrelink officers can in no way form an estoppel against the respondent nor can any official or indeed this tribunal in some way award a benefit outside the parameters allowed by the relevant legislation.  If as he claims the applicant has been misled by Centrelink and has expended moneys in reliance upon what was said to him by officers of Centrelink then his remedy is to take the matter up with the Ombudsman.  This tribunal, however, is bound by the relevant law and that law is such that the only decision open is to affirm the decision under review and that will be the decision of the tribunal.