Telgenkamp and Department of Family and Community Services

[2006] AATA 243

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 243

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/143

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEERTJE TELGENKAMP

Applicant

And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date15 March 2006

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - age pension - eligibility - Netherlands Agreement - date claim lodged - commencement date - review of decision - Social Security Appeals Tribunal (SSAT).

Social Security Act 1991 – ss43 and 44

Social Security (Administration) Act 1999 – ss 11, 12 – 15, 16, 29, 37, 41 and 42, 107, 109, 123, 129, 142 and 179

Social Security (International Agreements) Act 1999 – Schedule 7

Guide to Social Security Law

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake No 2 (1979) 2 ALD 634

Formosa and Secretary Department of Social Security (1998) 46 FCR 117

Re Redpath and Secretary Department of Family and Community Services (2000) AATA 689

Re Walsh and Secretary Department of Family and Community Services (2002) AATA 881

Re Castleman and Secretary Department of Family and Community Services (2004) 4, SSR 47

REASONS FOR DECISION

15 March 2006 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by Centrelink on 18 May 2005 to grant Australian pension to Mrs Geetje Telgenkamp as from 15 April 2005 and no earlier.

Issue

2.      The issue is whether the applicant is entitled to receive an age pension from a date earlier than 15 April 2005.

Legislation

3.      The relevant legislation is the Social Security Act 1991 (the Act”), sections 43 and 44, but also the Social Security (Administration) Act 1999 (“the Administration Act”) especially sections 11, 12 – 15, 16, 29, 37, 41 and 42, 107, 109, 123, 129, 142 and 179. Schedule 2 Part 2 of the Administration Act dealing with start dates should also be noted.

4.      As this is an international case to be determined on the papers the Social Security (International Agreements) Act 1999, particularly Schedule 7, the Netherlands Agreement with Australia concerning social security payments is relevant.

Standard of Proof

5.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

6.      On 15 April 2005 the applicant, Mrs Geetje Telgenkamp lodged an application for Australian age pension with SVB (Sociale Verzenkerings Bank) of the Netherlands.   The claim was made pursuant to the “Social Security Agreement between the Netherlands and Australia” and was received by Centrelink International Services on 17 May 2005.

7.      On 18 May 2005 a Centrelink officer decided to grant age pension to Mrs Telgenkamp from 15 April 1005 and no earlier.   The applicant requested a review of this decision, claiming she was entitled to age pension from an earlier date.

8.      On 29 July 2005 an authorised review officer (ARO) of Centrelink affirmed the original decision, citing the following reasons:

(a)“(a)    Mrs Telgenkamp claim for Australian aged pension was received by Centrelink on 17 May 2005.   Social Security Law slays she cannot be granted pension for any period prio to the date her claim was lodged;

(b)The above provision also applies to claims lodged under International Agreements, such as the International Agreement between the Netherlands and Australia concerning social welfare.”

9.      The matter was further considered by the Social Security Appeals Tribunal (SSAT) on 5 September 2005 and after analysing all available evidence the Tribunal affirmed the original decision.    Mrs Telgenkamp then lodged an application for review by the Administrative Appeals Tribunal (AAT) on 4 October 2005.

10.     Centrelink records indicate that the applicant’s husband (Wilhelmus Telgenkamp) claimed an Australian age pension in May 1999.   The front page of that claim form advised that if the applicant’s partner i.e. (Mrs Telgenkamp) wished to claim a pension herself a separate application should be lodged.    No action was taken by her at the time; her initial claim for Australian age pension was not received until 15 April 2005.    She later stated in an e-mail to Centrelink International Services on 15 July 2005:

“… I realise now (however too late) that my request for an Australian age pension should have been presented to you in 2002.   At that time I was unaware of this …  I hope and trust that you will honour my request, although I am aware the fault lies with me.”

Mrs Telgenkamp was granted aged pension from 18 May 2005, in accordance with start date provisions in the social security Law.

11.     Centrelink also notes that Mrs Telgenkamp had earlier lodged a claim for Dutch pension in February 2002, but no details had been provided to it.

Analysis

12.     This is a de novo review, hence the Tribunal is required to examine all available evidence, statutory provisions and social security law and any relevant prior case determinations before making its own decision.

13.     As previously stated, the relevant legislation in this appeal is the Social Security (Administration)  Act 1991 and  Social Security (International Agreements) Act 1999 (“the international Act’), in particular Schedule 7 of the International Act, being the “Agreement between the Government of Australia and the Government of the Netherlands on Social Security” (the Dutch Agreement).

14. Article 27 of the Netherlands Agreement anticipates that the law governing commencement of an Australian social welfare payment made pursuant to the Agreement, is the relevant Australian legislation. Relevant provisions of the Administration Act therefore determine the date from which Mrs Telgenkamp’s claim can be granted.

15. Section 11 of the Administration Act provides that:

“11(1)  Subject to subsection (2) and subdivision B, a person who wants to be granted:

(a)       a social security payment; and

(b)       a concession card:

must make a claim for the payment or card in accordance with this Division.”

16. Section 16 of the Administration Act provides that a claim for a social security payment must be made in writing on an approved form and in the case of International Agreements, may be lodged with the relevant overseas authority, which in the case of the Netherlands is SVB. Article 21.1 of the Dutch Agreement provides that the date Mrs Telgenkamp’s claim for pension was received (15 April 2005) is taken to be the date the application was formally lodged. Clause 3 of Schedule 2 of the Australian Administration Act provides that generally the start date for a social security payment will be the date the claim is lodged.

17. Section 13 of the Administration Act allows Centrelink to back date a claim where a person makes an enquiry about claiming a payment and then lodges the claim later, but the limit is 14 days unless illness or special circumstances apply, where 13 weeks is the limit.    An essential requirement is that Centrelink sends the potential applicant a notice acknowledging the applicant has made contact regarding possible submission of a claim.    Part 3 of Schedule of the  Administration Act  provides that a start date can be backdated in other limited circumstances, such as death, childbirth or transferring from one social security payment to another, however none of these provisions accommodate claims made more than 13 weeks after a person becomes qualified for payment.

18.     Turning more directly to Mrs Telgenkamp’s case the above provisions apply, but a query arises as to whether she made any formal application for Australian age pension prior to 15 April 2005 and whether her claim was appropriately treated thereafter.

19.     There is firm evidence that when her husband Wilhelmus Telgenkamp applied for Australian age pension on 11 May 1999, both he and she signed Part B of the claim form dealing with Income and Asset details, but Mrs Telgenkamp did not lodge any separate claim for herself, despite being advised in writing and by phone that if and when she desired to seek an Australian welfare payment she would have to do so.    Part 1 of Mr Telgenkamp’s 1999 claim form stated “… if your partner also wishes to claim a pension, he/she must complete a separate claim form.”     The applicant has testified this did not impinge upon her mind, as in 1999 she was not of an age to claim age pension.

20.     In considering her case the SSAT noted Article 21(2) of the Netherland Agreement which provides:

·     If a person lodges a claim for a Dutch benefit with the Dutch authorities and the claim indicates that the person has resided in Australia; and

·     that application is received by Centrelink within six months from the date of lodgement with the Dutch authorities;

·     then the claim can be deemed to be a claim for the corresponding Australian benefit.

21.     At the time of considering her case (5 September 2005) the SSAT was aware Mrs Telgenkamp had been granted a Dutch age pension in February 2002, but Centrelink had not been provided with a copy of her application and was unaware whether she had made any Australian residency claims or other statements.    In the absence of such information the SSAT decided Article 21.2 could not be relied upon to justify granting an Australian age pension for any period prior to 15 April 2005.

22.     The current Tribunal has closely re-examined this matter, including the actual wording of Article 21.2 of the Dutch Agreement, which reads as follows:

“… 2.   A claim for a benefit under the legislation of one Party shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant:

(a)requests that it be considered an application under the legislation of the other Party, or

(b)provides information at the time of application indicating that periods of residence or periods of insurance have been completed under the legislation of the other Party and the claim is received by the competent institution of the other Party within six months lodgement from the date of lodgement with the First Party.”

In the case of Mrs Telsenkamp there is no evidence that in February 2002 or within six months of that date she informed Centrelink of an intention to seek an Australian age pension, as distinct from a Dutch age pension, or identified Australian periods of residence for that purpose.     The Tribunal therefore concurs with the SSAT that the provisions of Article 21.2 are of no assistance to the applicant, because its terms were not complied with in such a manner as to permit the claim for a Dutch pension to be construed as a claim for an Australian pension.

23.     The applicant has claimed Centrelink should have contacted her and advised her of eligibility for an aged pension as soon as that day arrived, but there is no obligation for Centrelink to do so, given she was advised as early as May 1999 and literature about Australian welfare provisions and payments are widely available to the public.

24.     To summarise, the Tribunal has not found any evidence of a written formal claim for Australian age pension by the applicant prior to 15 April 2005 and under Australian social security law and the International Agreement with the Netherlands, no earlier entitlement to pension arises.

25.     There are many prior AAT case determinations and Federal Court decisions which confirm the validity of statutory interpretations and social security policy in this case.    See, for example, Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Drake No 2 (1979) 2 ALD 634, also Walsh and Secretary, Department of Family and Community Services (2002) AATA 881 which confirm the Tribunal is bound by relevant government policy and practice such as is expressed in the Guide to Social Security Law. Note also a decision of the Full Federal Court in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, confirming that only written and not oral applications for welfare payments can be considered. Specific requirements in respect of such claims are further explained in Repath and Secretary, Department of Family and Community Services (2000) AATA 689 and Castleman and Secretary, Department of Family and Community Services (2004) 4, 4 SSR 47.

Decision

26.     Having considered all available evidence anew and on the balance of probabilities the Tribunal finds that the applicant’s claim for Australian age pension dates from 15 April 2005 and she is not entitled to receive age pension from an earlier date.

27.     Her application is unsuccessful and the Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing     Matter decided on the papers – applicant overseas.

Date of Decision  15 March 2006