Sophie Rapoff and Secretary, Department of Social Services
[2014] AATA 676
[2014] AATA 676
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1434
Re
Sophie Rapoff
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 15 September 2014 Place Perth The Tribunal affirms the decision under review.
...(Sgd) CR Walsh........................
Senior Member CR Walsh
CATCHWORDS
Social security – age pension – member of a couple treated as pooling their resources (income and assets) – Centrelink requested information from applicant regarding her husband’s income and assets – applicant failed to comply with Centrelink’s request for information – Centrelink unable to assess applicant’s claim – applicant had no reasonable excuse for not complying - decision under review affirmed.
LEGISLATION
Social Security Act 1991 – s8 – s11- s 1064(1) – s 1064-A2 – s 1064-E2 – s 1064-G2 – s1065
Social Security (Administration) Act 1999 – s 63(1) – s 63(2) – s 64(1)
REASONS FOR DECISION
Senior Member CR Walsh
15 September 2014
INTRODUCTION
Mrs Rapoff’s application concerns whether Mrs Rapoff’s claim for age pension was correctly rejected on the ground that she failed to provide certain information requested by Centrelink to support her claim including, in particular, information about her husband’s income and assets.
Specifically, Mrs Rapoff seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 28 February 2014, affirming the decision of a Centrelink Authorised Review Officer (ARO), dated 22 January 2014, who affirmed Centrelink’s decision, dated 2 January 2014, to reject Mrs Rapoff’s claim for age pension for the reason that she did not provide Centrelink with the information required to assess her claim under the Social Security Act 1991 (SSA).
BACKGROUND
On 11 December 2013, Mrs Rapoff lodged a claim for age pension with Centrelink.
On 16 December 2013, Centrelink wrote to Mrs Rapoff requesting additional information from her, within 14 days, so her claim could be properly assessed (16 December 2013 Letter). Significantly, the 16 December 2013 Letter stated:
Unfortunately your partner’s were not included on your claim forms and these are required before we can assess your claim. Your partner is in receipt of Disability (Blind) Pension which is not income or asset tested however if you wish to test your eligibility to Age Pension (which is income and asset tested), you must provide ALL current income and asset information for your partner as well as yourself. I have enclosed copies of your forms so they can be fully completed and signed and his income and asset details can also be included.
The 16 December 2013 Letter further stated that Mrs Rapoff must provide Centrelink with the following information by 30 December 2013:
* Copies of your claim forms to be FULLY completed and signed with ALL your partner’s details and income and assets included
* Check the estimate you provided for your home contents is the MARKET value not insured or replacement value
* Confirm if your partner still owns three investment properties (if so, provide latest Rental Profit and Loss statements for all 3)
On 19 December 2013, Mrs Rapoff provided Centrelink with some, but not all, of the information requested in the 16 December 2013 Letter.
On 2 January 2014, Centrelink decided to reject Mrs Rapoff’s claim for age pension because she did not provide all of the information requested in the 16 December 2013 Letter (Original Decision).
On 9 and 13 January 2014, Mrs Rapoff spoke to Centrelink about the Original Decision and requested a review of the Original Decision.
On 22 January 2014, an ARO affirmed the Original Decision (ARO Decision). In doing so, the ARO stated:
As your partner receives an Age Pension Blind he is not subject to an income and assets test and will receive the maximum amount of Age Pension payable.
When a person who is not blind claims a payment such as Age Pension the department will need to obtain details of the couples combined income and assets. If these details are not provided within 14 days of a written request being issued their claim can be rejected.
…….you lodged an Age Pension claim on 11 December 2013 but failed to fully complete the claim form in a number of areas. This included your partner’s details and your combined income and assets. I also note that he did not sign the claim form.
The Department then wrote to you five days later outlining the information it required so that it could assess your claim. After it failed to obtain all the required information it correctly rejected your claim as it was unable to assess your eligibility for the Age Pension based on the information provided to it.
On 29 January 2014, Mrs Rapoff applied to the SSAT for a review of the ARO Decision.
On 28 February 2014, the SSAT affirmed the ARO Decision (SSAT Decision). In doing so, the SSAT concluded:
27.The Tribunal is satisfied that Centrelink was making a reasonable request for information from Mrs Rapoff as that information is required to ascertain the rate of age pension. The Tribunal is also satisfied that Mrs Rapoff’s reason for not providing the information requested by Centrelink does not constitute a reasonable excuse.
28.As Mrs Rapoff has not provided information required by Centrelink, and has no reasonable excuse for not doing so, the Tribunal is satisfied that the payment claimed is not payable (section 64 of the Administration Act).
On 19 March 2014, Mrs Rapoff applied to this Tribunal for a review of the SSAT Decision. In her “Reasons for Application”, she stated:
The assets are in my husband’s name. So I cannot provide his details under the Privacy Act.
RELEVANT LAW & ANALYSIS
The rate of age pension (for a person who is not blind) is calculated in accordance with the Rate Calculator at the end of s 1064 of the SSA. The rate is calculated using an income test and an assets test. The test that results in the lowest rate of age pension is the applicable test.[1]
[1] In contrast, the rate of age pension payable to a blind person is calculated using the Rate Calculator in s 1065 of the SSA and is not subject to an income test or an assets test (unless the blind person also claims rent assistance).
Where two people are “members of a couple”, they are treated as pooling their resources (“income”[2] and “assets”[3]) and sharing them on a 50/50 basis: s 1064-A2 of the SSA (titled “Pension Rate Calculator A”)[4].
[2] The term “income” is defined in s 8 of the SSA (titled “Income test definitions”) as including an “income amount” earned, derived or received by a person for the person’s own use or benefit. The phrase “income amount” is defined in s 8 of the SSA to mean valuable consideration, personal earnings, moneys or profits.
[3] The term “asset” is defined in s 11 of the SSA (titled “Assets test definitions”) to mean property or money (including property or money outside Australia).
[4] Section 1064-E2 of the SSA sets out how a person’s ordinary “income” is to be calculated for age pension purposes and s 1064-G2 of the SSA sets out how a person’s “assets” are to be valued for age pension purposes.
It is not in dispute that Mrs Rapoff is a “member of a couple” for social security purposes.
Centrelink may notify a person who is receiving or has made a claim for a social security payment (such as age pension) that he or she is required to provide information to the Secretary (i.e. Centrelink) by a specified date: s 63(1) and (2) of the Social Security (Administration) Act 1999 (Administration Act).
Of particular relevance to this application is s 64(1) of the Administration Act, which states:
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b)the Secretary [i.e. Centrelink] notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e)except if the person is receiving, or has made a claim for, a participation payment – the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f)the Secretary is satisfied that it is reasonable for this subsection to apply to the persons;
the payment that the person is receiving or has claimed is not payable. [Emphasis added]
The Tribunal finds that, in accordance with s 64(1) of the Administration Act, the age pension claimed by Mrs Rapoff is not payable. This is because:
· Mrs Rapoff made a claim for a social security payment (namely, age pension);
· Centrelink notified Mrs Rapoff, pursuant to s 63(2) of the Administration Act (i.e. in the 16 December 2013 Letter), that she was required to provide certain information, including information about her husband’s income and assets, by 30 December 2013;
· The requirement to give the information requested (in the 16 December 2013 Letter) was reasonable, since the information requested by Centrelink was necessary to enable Centrelink to properly assess Mrs Rapoff’s age pension claim, as Mrs Rapoff is a “member of a couple” who is treated under s 1064-A2 of the SSA as pooling her resources (i.e. “income” and “assets”) with her husband;
· Mrs Rapoff did not comply with the requirement as she failed to provide Centrelink with all of the information requested (in the 16 December 2013 Letter) by the specified date. Specifically, Mrs Rapoff failed to provide Centrelink with information about her husband’s income and assets by 30 December 2013;
· Mrs Rapoff did not have a “reasonable excuse” for not complying with the requirement. Mrs Rapoff advised Centrelink on 19 December 2013 that her reason for not providing all of the information requested in the 16 December 2013 Letter was because her husband is blind and he would not complete any details regarding his income and assets on her age pension claim form. Mr Rapoff said that Mrs Rapoff’s age pension claim has nothing to do with him. Mrs Rapoff subsequently advised Centrelink, on 9 January 2014, that her reason for not providing all of the information requested in the 16 December 2013 Letter was that she was unable to complete the partner details in her age pension claim form due to the fact that her husband is blind and, in any event, her husband’s assets are not assessable. Before the SSAT, Mrs Rapoff’s given reason for not providing the information requested by Centrelink was that it is unfair that her husband’s income and assets are taken into account in relation to her age pension when they were disregarded in relation to his pension.[5] In her application to this Tribunal, Mrs Rapoff stated that “The assets are in my husband’s name. So I cannot provide his details under the Privacy Act”. At the hearing, Mrs Rapoff told the Tribunal that she had repeatedly asked her husband to provide her with information about his income and assets, in support of her claim for age pension, but that he consistently refused. The Tribunal acknowledges that Mrs Rapoff’ husband’s refusal to provide her with the necessary information about his income and assets in support of her claim for age pension puts her in an unfortunate and difficult situation. Nonetheless, none of the reasons given by Mrs Rapoff for her non-compliance with Centrelink’s request for information concerning her husband’s income and assets constitute “reasonable excuses” for the purposes of s 64(1)(e) of the Administration Act; and
· It is reasonable for s 64(1) of the Administration Act to apply to Mrs Rapoff in the circumstances.
[5] See SSAT Decision at [19] and [26].
It follows that Centrelink made the correct decision to reject Mrs Rapoff’s claim for age pension on the ground that she failed to provide the information requested by Centrelink by the specified date.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision, being the decision under review.
21.
22.
23. I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
...(Sgd) T Freeman.......
Associate
Dated 15 September 2014
Date of hearing 12 September 2014 Representative for the Applicant Self Representative for the Respondent Ms S Y Long Solicitors for the Respondent Australian Government Solicitor
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