Stojanovic and Secretary, Department of Social Services (Social services second review)

[2015] AATA 625

Stojanovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 625 (24 August 2015)

Division	GENERAL DIVISION
File Number	2015/1103
Re	Dimitrije Stojanovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Damien Cremean
Date	24 August 2015
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]………………………………………………….

Senior Member Damien Cremean

SOCIAL SECURITY – Age Pension – Portability – Suspension – Absence from Australia for 26 weeks or more – decision affirmed

Legislation

Social Security Act 1991(Cth), sections 44,1220A,1221.

Social Security (Administration) Act 1999 (Cth), section 80

REASONS FOR DECISION

Senior Member Damien Cremean

3 August 2015

1. A Centrelink authorised review officer (ARO) made a decision on 10 September 2014 to suspend the Applicant’s age pension from 2 May 2014. Centrelink is the service provider for the Department of Social Services. The Applicant sought a review of the ARO decision by the Social Security Appeals Tribunal (SSAT).  On 11 February 2015 the SSAT affirmed the decision of the ARO.  The Applicant now seeks a review of the SSAT decision by this Tribunal.

2. The issue before this Tribunal is whether the Applicant’s age pension was correctly suspended having regard to section 80 of the Social Security (Administration) Act 1999 (the Administration Act), on the ground that it was not payable by operation of sections 44, 1220A and 1221 of the Social Security Act 1991 (the Act).

3. Section 80(1) of the Administration Act provides that –

   (1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

4. Section 44(1) of the Act provides that—

   (1)Subject to subsection (2), an age pension is not payable to a person if the person’s age pension rate would be nil.

5. Section 1220A of the Act specifies that—

   A person’s rate of age pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if:

   (a)the person has been continuously absent from Australia, throughout a period (the period of absence) of more than 26 weeks; and

   (b)either:

   (i)immediately before the period of absence commenced, the person was receiving the age pension; or

   (ii)...

6. Section 1221 of the Act states---

   1221‑A1  This is how to calculate a person’s portability rate:

   
   

   Working life

   1221‑B1  For the purposes of this Module, a person’s working life is the period beginning when the person turns 16 and ending when the person reaches pension age.

   Australian working life residence (general)

   1221‑B2  Subject to points 1221‑B3 and 1221‑B4, a person’s period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person’s working life during which the person has, up to that time, been an Australian resident.

   Residence factor (period of Australian working life residence 35 years or more)

   1221‑C1    If a person’s period of Australian working life residence is 420 months (35 years) or more, the person’s residence factor is 1.

   Residence factor (period of Australian working life residence under 35 years)

   1221‑C2    If a person’s period of Australian working life residence is less than 420 months (35 years), the person’s residence factor is:

   Person’s period of Australian working life residence

   420

7. The uncontested evidence is that the Applicant was born in Dubica, on 17 September 1929.  He first arrived in Australia on 21 June 1996 and began receiving the age pension from 27 June 1996.   That is because when he arrived he was already of age pension age having turned 65 on 17 September 1994.

8. That circumstance means that the Applicant’s Australian working life residence – for the purposes on section 1221-B2 of the Act − is nil.

9. The Applicant left Australia on 1 November 2013 and returned on 1 June 2014. The Applicant then returned to Bosnia on 12 June 2014.  Sadly, his wife died there on 11 July 2014.  He incurred various expenses in connection with her burial including acquiring a burial plot and a monument. Those expenses, which are considerable, have not been paid and he is still in debt over them. He returned to Australia on 25 November 2014 and departed for Bosnia again on 7 December, where he remains.

10. The period between 1 November 2013 and 1 June 2014 during which the Applicant was away from Australia was more than 26 weeks.  At the hearing the Applicant gave evidence that he was well aware that the 26 week limitation period applied.

11. The material period in this case is from 2 May 2014 to 31 May 2014, during which the Applicant’s age pension was suspended. The Applicant’s pension recommenced on 4 June 2014 after his return to Australia, with a notice of recommencement having been sent to him on 2 June 2014.

12. The Applicant was unable to return to Australia before the 26 week period expired because of the illness of his wife. In a letter to the Tribunal dated 16 March 2015, he stated that he had informed the Australian Embassy of the reasons for his and his wife’s inability to return to Australia during the portability period.

13. As I have noted, the Applicant’s working life residence under section 1221-B2 of the Act is nil. The effect of multiplying his rate of age pension by nil under the Method Statement in section 1221 of that Act results in a $ nil rate of payment.

14. That in turn means that, under section 44(1) of the Act, age pension was not payable to the Applicant after 2 May 2014; although it did become payable to him again as I have noted after his return to Australia the following month.

15. The consequence of this is that the Department was entitled to act under section 80 of the Administration Act to suspend the Applicant’s age pension upon, and after, 2 May 2014.

16. It follows that the decision of the SSAT is correct and its decision made on 11 February 2015 must be affirmed.

17. Accordingly, the Tribunal affirms the decision under review.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien Cremean

..............................[sgd]..........................................

Associate

Dated 24 August 2015

Date of hearing	29 July 2015
Applicant	In person
Advocate for the Respondent	Mr Mark Hester
Solicitors for the Respondent	Department of Human Services