Soos and Department of Family and Community Services
[2000] AATA 612
•27 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 612
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1564
GENERAL ADMINISTRATIVE DIVISION ) and No N1999/1565
RE IMRE SOOS
Applicant
HEDDA SOOS
Second Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RespondentDECISION
Tribunal Dr J D Campbell
Date27 July 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
…….(Sgd) Dr J D Campbell…….
Member
CATCHWORDS:
Social Security – age pension – special needs age pension – special needs disability support pension – Australian resident – application lodged in Czech Republic – absence of social security agreement between Australia and Czech Republic – rejection of application – issue of fairness.
Social Security Act 1991, sections 48, 51, 772, 773.
REASONS FOR DECISION
27 July 2000 J D Campbell, Member
Mr Imre Soos and Mrs Hedda Soos ("the Applicants") in these matters seek a review of the decision of the Social Security Appeals Tribunal dated 8 June 1999, which affirmed the decision dated 19 February 1999, of an authorised review officer. This latter decision affirmed a decision dated 5 January 1999, made by Centrelink delegates of the Secretary of the Department of Family and Community Service ("the Respondent") to reject the Applicants' claims for age pension.
A hearing was held before the Tribunal in Sydney on 20 March 2000. The Applicant's brother, Mr Guyula Soos, advised the Tribunal that he was no longer able to represent his brother and his wife, the Applicants', but the Applicants' as advised in a telephone conversation with him the previous evening, wished the matter to proceed. The Applicant was then self represented and the hearing essentially became a hearing on the papers. Ms Smith, an advocate from the Administrative Law Section of Centrelink represented the Respondent.
The following documents were placed in evidence before the Tribunal:
Documents prepared pursuant to Section 37 of Administrative Appeals Tribunal Act 1975 T1 – T24 pp1 – 70
Respondent's Statement of Facts and Contentions, dated 17 February 2000 Exhibit R1
Applicant's Supplementary Statement to the Statement of Appeal, undated. Exhibit A1
ISSUES:
The issues in this matter are whether Mr and Mrs Soos applications for age pension were correctly rejected.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections, 7, 48, 51, 772, 773, 1208, Schedule 1A.
EVIDENTARY MATERIAL
The Applicant was born on 28 May 1925 and arrived in Australia on 13 January 1950. Mr Soos lived and worked in Adelaide (1950 - 1952), Sydney (1953 – 1963) and Cooma (1964 – 1967). Mr Soos married his wife, Hedda, a painter on 1 July 1958. Mr and Mrs Soos, both with Australian passports, left Australia in 1967 to work in France (1967 – 1969), Germany and Austria (1970 – 1975), Brazil (1976 – 1993) and the Czech Republic (1994 and ongoing).
In Brazil the Applicants enjoyed a social and working relationship with the Australian consulate until it was closed. In 1982 a significant and lasting economic down turn in Brazil saw an end to the Applicant's planned intentions to return to Australia, as their capital was eroded. In 1993 they returned to the Czech Republic on the death of Mrs Soos' relation and the consequential securing of some accommodation, where they intended to live on income generated from the sale of Hedda's paintings through galleries. In 1995, another relative of Mrs Soos' died leaving them a small house on the outskirts of Prague, which they sold and moved to a house in a small village where living expenses were much less.
As a result of economic recession in the Czech Republic over the last few years, sales of Mrs Soos' paintings were virtually non existent. With an unfinished house, and a depletion of any capital that they may have had, the Applicants' are currently living on borrowings from relations in France. It was this situation which led to the Applicants' applying for an Australian age pension, in the understanding that they do not have financial resources to move elsewhere in the world.
CONSIDERATIONS AND FINDINGS
In this matter, the Applicant's are applying for an age pension. The Tribunal notes the following relevant legislation:
" 48 (1)Subject to subsection (3), a person who wants to be granted an age pension must make a proper claim for that pension.
…
51. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged."This clear to the Tribunal that while the Applicants' hold an Australian passport they are residents of the Czech Republic and not of Australia and accordingly on the date of claim they were neither Australian residents nor were they resident in Australia on that day. Hence the Tribunal finds that a proper claim was not made by either Applicant, and hence an age pension cannot be granted.
The Tribunal notes that section 1208 of the Act provides for an age pension to be paid where an Applicant is living in a country that has a social security agreement with Australia. The Tribunal notes that as defined by Schedule 1A of the Act Australia has international social security agreements with the United Kingdom, New Zealand, Canada, Italy, Spain, Malta, Cyprus, the Netherlands, Ireland, Portugal and Austria, but not with the Czech Republic. As a consequence the Tribunal finds that the Applicants' did not meet the requirements of this section.
In considering other legislative avenues available the Tribunal notes section 772 of the Act which provides: -
"772. A person is qualified for a special needs age pension if:
(a)the person has not resided in Australia at any time after 7 May 1973; and
(b)the person has turned:
(i)if the person is a woman – 60; or
(ii)if the person is a man – 65; and
(c) the person ceased to reside in Australia after the person had turned:
(i)if the person is a woman – 55; or
(ii)if the person is a man –60; and
(d)the person had resided in Australia for a period that was, or for periods that in the aggregate were, not less than 30 years; and
(e)the person would:
(i) if the person had lodges a claim immediately before the person ceased to reside in Australia – have been qualified under section 25 of the 1947 Act to receive an age pension; or
(ii) if the person had not ceased to reside in Australia, were physically present in Australia and lodges a claim for an age pension – be qualified under section 25 of the 1947. Act to receive an age pension; and
(f)the person is in the opinion of the Secretary, in special need of financial assistance".
In furtherance of consideration under section 772, the Tribunal notes that the Applicants' left Australia and have not resided in Australia since 1967, at which time Mr Soos was 42 and Mrs Soos 40 years of age. Further it is noted that the Applicants' resided in Australia for 17 years. It is the Tribunal's findings that the Applicants' do not satisfy subsections 772 (b), (c) and (d) and accordingly do not qualify for a special needs age pension.
Further in noting section 773 of the Act, which states:
"773. A person is qualified for a special needs disability support pension if:
(a) the person has not resided in Australia at any time after 7 May 1973; and
(b) the person is severely disabled; and
(c) the person has turned 16; and(d) at the time when the person first satisfied paragraph (b), the person was in Australia or temporarily absent from Australia; and
(e)the person is, in the opinion of the secretary, in special need of financial assistance".
The Tribunal again notes that under subsection 773 (d) there is a residence element in Australia which the Applicant's do not satisfy, particularly as when they left Australia, they went on to work in a number of other countries, the first of which was France. It is the Tribunal's findings that the Applicant's do not qualify for a special needs disability support pension.
In summary comment the Tribunal concludes that the Applicants' have no legislative entitlement to age pension, special needs age pension or a special needs disability support pension. The Applicants' have argued that this is unfair and discriminatory as an age pension would be payable to both if they returned to and resided in Australia and/or a country with which Australia has an international social security agreement or alternatively if Australia was to have a social security agreement with the Czech Republic. The Tribunal understands the nature of this argument, particularly when placed within the circumstances the Applicants' now find themselves, for it would appear that a number of alternative solutions are essentially not available to them for want of financial resource. Similarly the Tribunal is appreciative of the current circumstances of the Applicants' associated with increasing age and frailty. Nevertheless the Tribunal must balance such considerations that the Applicants' have ended up in their particular circumstance as a result of decisions they have made, and indeed decisions which have led to the predicament in which they now find themselves involved. While decisions taken by an individual for a particular immediate, short or medium term benefit often, in the Tribunal's view, have unintended and unexpected detrimental consequences, the decision taken and the responsiblity for the beneficial and/or detrimental outcomes must be owned by the individual who makes them. In the Tribunal's view it is the role of government, within a legislative framework, to provide relief for the special needs of Australian citizens, and how and by what means they do are clearly a prerogative of the parliament.
Simply put this matter is a case in which the Tribunal finds that the legislative framework does not make a provision for payment of an age pension to the Applicants' in the circumstances that they are now living. Whether it should is not a matter for this Tribunal but for those who make the law and were of the mind that the Applicants' circumstances necessitated a reconsideration of the legislative framework.
DETERMINATION
The Tribunal determines that the decisions under review are affirmed.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of J D Campbell, Member.
Signed: .....................................................................................
AssociateDate of Hearing 20 March 2000
Date of Decision 27 July 2000
Representative for the Applicant Unrepresented
Representative for the Respondent Ms Smith
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