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

[2020] AATA 284

Thomson and Secretary, Department of Social Services (Social services second review) [2020] AATA 284 (21 January 2020)

Division:GENERAL DIVISION

File Number:           2019/2966

Re:George Thomson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:21 January 2020

Date of written reasons:        24 February 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Seniors Health Card — whether Applicant and his wife qualified – estimated taxable income in relevant year - decision under review denying they qualified — decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

24 February 2020

1. The Applicant, Mr George Thomson, has requested written reasons for the oral decision I gave on 21 January 2020.

2. These reasons for decision follow my perusal of the transcript of the hearing and are substantially the same as those which appear there, and which I fully explained to Mr Thomson at the conclusion of the hearing.

3. The Applicant sought review of the decision dated 14 May 2019 made by the Social Services & Child Support Division of this Tribunal (‘Tier 1’). Tier 1 affirmed the decision under review rejecting the Applicant’s claim for a Seniors Health Card. Tier 1 made this decision after reviewing all the information before it, including materials submitted by Mr Thomson after the hearing was over.

4. Likewise, after I conducted the hearing on 21 January 2020, and after I had given my oral decision, Mr Thomson sought to lodge further materials again and I declined to look at them. I should add that on the day of the hearing itself or shortly before it Mr Thomson had lodged further materials.

5. At that hearing the Applicant was self-represented and gave sworn evidence. The Applicant also stated that Mrs Thomson was very unwell and unable to attend. The Respondent was represented by Ms Voigt, a lawyer from the Department of Human Services.

6. The Seniors Health Cards for the Applicant and his wife were cancelled because at the relevant time the limit on allowable income for a couple was $82,400, an increase of $4200 from 20 September 2014 (see ss 1061 ZG and 1071 of the Social Security Act 1991(Cth)).

7. In order to qualify for a Seniors Health Cards under the Act, the adjusted taxable income has to be below the Seniors Card income limit. This is to ensure that Seniors Health Cards are allotted to those whom the Parliament has decided need them for financial reasons.

8. The figures for the Applicant’s income in the relevant period are as follows:

   (a)2010/2011 - $93,000;

   (b)2011/2012 - $76,447;

   (c)2012/2013 - $98,641;

   (d)2013/2014 - $88,011; and

   (e)2014/2015 - $82,270.

9. These figures were not in issue at the hearing and put the income of the Applicant and his wife above the allowable level for the Seniors Health Card. 

10. This, in fact, was not denied at the hearing by the Applicant in the evidence he gave. I said to him, calling for comment, that he had been rejected for a Seniors Health Card – On the basis that your income exceeded the $86,076 income test threshold for qualification. He replied —Yes, which I’ve never disputed.

11. This reply appeared to be an end to the matter; unless statute gave me a discretion on the question of his and his wife’s entitlements to the card but it appears that no such discretion exists.

12. The Applicant was unable to explain to me how I could find in his favour and that of his wife so as to order or direct that Seniors Health Cards could be allotted to them.

13. The Applicant - it was apparent to me - was troubled by the finding by Tier 1 that debts were found to be owing by him and his wife. He said — we feel ill done by in so much as at the time of our previous hearing we were seeking not the use of the card, but we were seeking a burden of considerable debt that we were totally unaware of. After some further explanation he said - when we exceeded the amount [i.e. the income limit] we were penalised as though we had been virtually criminals, and that was disappointing.

14. But no matter how the Applicant feels, the fact is the debts were waived and the fact that they were waived, does not grant the Applicant an entitlement to a Seniors Health Card. There is no ground of complaint he can reasonably have with the way in which Tier 1’s reasons are expressed.

15. Having heard from Ms Voigt, I advised the Applicant that there was nothing I could do to help him and his wife. The provisions of the Act gave me no discretion and it was not a case where special circumstances applied. In that regard, he admitted exceeding the allowable limit; he did not challenge the calculations; he did not complain that the debts had been waived.

16. The Applicant was unable otherwise to satisfactorily explain why the decision under review was not the correct or preferable one.

17. Moreover, cancellation of the Seniors Health Cards of the Applicant and his wife (from 20 March 2014 and 20 June 2014 respectively) came about statutorily, by operation (principally) of s 106A of the Social Security (Administration) Act 1999 (Cth) — and not by reason of any decision of Tier 1, although the cancellations were the subject of observations in the reasons of Tier 1.

18. Therefore, I affirmed the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the written reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate

Dated: 24 February 2020

Date of hearing:	21 January 2020
Applicant:	In person
Advocate for the Respondent:	Ms April Voight
Solicitors for the Respondent:	Department of Human Services