Siegel and Department of Family and Community Services

[2000] AATA 757

DECISION AND REASONS FOR DECISION [2000] AATA 757

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T1999/43

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MARTHA SIEGEL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date30 August 2000

PlaceHobart

Decision      The decision under review is affirmed.   

..............................................
  Part-Time Member
CATCHWORDS
Social Security -   disability support pension – ordinary income – member of a couple – affecting income amount.
Social Security Act 1991 – ss.8(1),(2)

REASONS FOR DECISION

30 August 2000      Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by an authorised review officer on 7 May 1998 which affirmed a decision of a Commonwealth Delivery Service Agency (Centrelink) delegate of the Secretary of the Department of Family and Community Services on 11 February 1998 rejecting Mrs. Siegel's application for a disability support pension on the basis that the combined income of the applicant and her spouse exceeded the disqualifying income limit.

2. The parties consented to the application being heard on the basis of the written material before the Tribunal which included the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, as the applicant is currently resident in Austria.

3. Following the decision of the Social Security Appeals Tribunal (SSAT) on 13 October 1998, the applicant forwarded a letter to that Tribunal dated 19 March 1999 in which she claims that her husband is currently earning ATS 20,146 per month.   The applicant makes a further statement in the letter that "once in the year 1997 a salary statement was sent by me.   Unfortunately it was the one with the sum ATS 37.000.00 which he obtains only twice a year (doubled) less 4,500.00."

4. The respondent alleged that it was not in dispute that at the time of the applicant's claim for pension, Mr. Siegel was in receipt of gross taxable income of $37,072.46 per annum.   Apart from the reference in the applicant's letter of 19 March 1999 the amount of assessable income as calculated by the respondent does not appear to have ever been in dispute.    It appears that this sum was calculated using information previously provided by the applicant (refer T4 and T16).

5. The previous decisions made in this matter refer to the husband's gross earnings as being 26,748 Austrian schillings per month and using the then exchange rate of 8.41 schillings = AUD $1, this equated to $38,166 per annum.

6. The authorised review officer refers to the husband's income as 25,672 Austrian schillings per month and using an exchange rate of 8.31 this equals $37.072.46 Australian dollars.    It would appear however that when either figure is used  and the permissible income amount of $4,576 is deducted, it could still be contended that the combined income of the applicant and her husband exceeds the disqualifying limit.

7. The relevant legislation is that contained in the Social Security Act 1991 ("the Act").   Section 117 of that Act provides that a person's disability support pension rate is worked out using the pension rate Calculator A at the end of s.1064.

8. There appears to be no dispute that the combined income of the applicant  and her spouse is considered in accordance with the provisions of s.8(1)(a) for the purpose of calculating the amount of pension payable.
   Section 8(1)(a) and (2) states:

   "(1) In this Act, unless the contrary intention appears:
   …
   'income, in relation to a person, means:

   (a)an income amount earned, derived or received by the person for the person's own use or benefit.

   (2)A reference in this Act to an income amount earned, derived or received is a reference to:

   (a)an income amount earned, derived or received by any means; and

   (b)an income amount earned, derived or received from any source (whether within or outside Australia)."

9. The ordinary income free area in accordance with the provisions of Table E1 amounts to  $4,576.00.  When this amount is deducted from the gross income figure used by the authorised review officer in the sum of $37,072.46, the balance remaining is $32,496.46.   This sum is then divided by two in accordance with  the provisions of s.1064-E10 Table E2 and as the applicant is a member of a couple, the applicant's ordinary income for the purpose of the ordinary income test (Module E) is calculated by dividing this sum by 2 resulting in the figure of $8,124.12. 

10. The maximum basic rate of pension payable to the applicant in accordance with the provisions of s.1064-B1 as stated in Table B is $7,542.60.    As the calculated affecting income amount of $8,124.12 is in excess of this sum the result is that  the rate payable would be nil.

11. Section 98(2) provides that a disability support pension is not payable to a person if the disability support pension rate would be nil  and accordingly this Tribunal determines that  the pension sought by the applicant in her original application of the 4 February 1998 is not payable.

12. This decision has been made on the basis of the application before this Tribunal and the financial material supplied in support of that application.   If however the applicant's circumstances have changed as alleged by her in  her letter to the SSAT of 19 March 1999, she may wish to consider lodging a further application.

13. The decision of this Tribunal is that the decision under review be affirmed and the appeal dismissed.

    I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing    Overseas Application - Matter decided on the papers.

    Date of Decision     20 August 2000