Stephen Hodge and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 877
•26 October 2012
[2012] AATA 877
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0909
Re
Stephen Hodge
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 26 October 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – Carer Payment– rate and calculation of carer payment - whether superannuation is income – whether Applicant had reached retirement age - decision under review is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)
Social Security Act 1991 (Cth), s 7(3)
REASONS FOR DECISION
Ms N Bell, Senior Member
13 December 2012
At the conclusion of the hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to him a statement in writing of the reasons of the Tribunal for the decision.
The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Auscript, the Commonwealth Reporting Service.
Mr Hodge has received carer payment since 2008. His rate of payment was reduced when he commenced to receive a pension from his superannuation fund in 2009. Mr Hodge objects to this reduction and considers his superannuation pension should be exempted from the calculation of the rate of his carer payment.
The main issue in this application is whether a superannuation pension payment is “income” for the purposes of calculating the rate of Mr Hodge’s carer payment.
“Income” is defined in section 8(1)(a) Social Security Act1991 (Cth) as:
an income amount earned, derived or received by the person for the person's own use or benefit; or …
That includes superannuation payments. Section 8(8) sets out the exclusions to income:
(8) The following amounts are not income for the purposes of this Act:
(a) a payment under this Act;
(b) any return on a person's investment in:
(i) a superannuation fund; or
(ii) an approved deposit fund; or
(iii) a deferred annuity; or
(iv) an ATO small superannuation;
until the person:
(v) reaches pension age; or
(vi) starts to receive a pension or annuity out of the fund;
…
Mr Hodge has not reached retirement age. However, he has commenced to receive a pension out of the fund.
Centrelink regarded this as income and took it into account when calculating Mr Hodge’s carer payment. I consider that was the right thing to do under the law because his superannuation return is not exempted under section 8(8) now that he is receiving a pension out of the fund.
Tax free components are allowed under the legislation to be a deductible from the amount of a pension, and I see in the T documents that Centrelink gets information from the superannuation fund about how much that tax free component is and deducts it from the amount of Mr Hodge’s pension. I can see from the papers that Centrelink made that calculation and took the deductible out of the calculation. So Mr Hodge had the benefit of that deductible.
I can see no error in the decision that I am reviewing, I think it was the correct decision, and I affirm it.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ......[Sgd]..................................................................
Associate
Dated 13 December 2012
Date of hearing 26 October 2012 Applicant In person Solicitors for the Respondent G Lozynsky, Centrelink Program Litigation Review Branch
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