Tryon and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1806

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1806

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1586

GENERAL ADMINISTRATIVE DIVISION )

Re MARK TRYON

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date27 September 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review in relation to the cancellation of disability support pension but sets aside the decision to cancel the pensioner concession card.

....................[Sgd]..........................

RG Kenny
  Member 

CATCHWORDS

SOCIAL SECURITY - disability support pension – return to full-time employment – injury at work and payment of worker’s compensation – compensation payment at a level in excess of threshold for payment of disability support pension – cancellation of disability support pension – decision affirmed

cancellation of pensioner concession card – with consent of respondent – decision set aside.

Social Security Act 1991 (Cth) ss, 94, 98, 1061ZA, 1061ZD, 1173

Social Security (Administration) Act 1999 (Cth) s 37, 37A, 68, 93, 96, 97.

REASONS FOR DECISION

27 September 2007  Mr RG Kenny, Member

Background

1. On 9 July 1998, Mark Tryon was granted disability support pension. The qualifications for this form of income support are set out in s 94 of the Social Security Act 1991 (the Act).  In Mr Tryon’s case, it related to a range of orthopaedic conditions from which he suffers.  Mr Tryon was also provided with a pensioner concession card.  The qualifications for the concession card are set out in s 1061ZA of the Act.  On 2 December 2006, a delegate of Centrelink cancelled Mr Tryon’s disability support pension and the concession card.  This decision was affirmed by an authorised review officer on 28 February 2007.  On 29 March 2007, the decisions were affirmed by the Social Security Appeals Tribunal.  Mr Tryon now seeks review of those decisions by the Administrative Appeals Tribunal.

Issues and Legislation

2. Over the years, Mr Tryon received the respondent’s letters which constitute notices under s 68(2) of the Social Security (Administration) Act 1999 (the Administration Act). These required him to advise of certain changes in his circumstances. The notifiable circumstances included the commencement of work for 30 hours or more per week and also the receipt of compensation payments. Mr Tryon always advised the respondent of his employment arrangements in a timely manner. Suspensions of disability support pension occurred on various occasions of his return to full-time employment. Then, on 1 May 2006, Mr Tryon again returned to full-time employment. He notified the respondent and, as a result, his disability support pension was again suspended. On 10 November 2006, he was injured at work and he was paid periodic compensation of $782 per week from 14 November 2006. Mr Tryon advised the respondent of this.

3. Section 93 of the Administration Act makes provision for automatic cancellation of disability support pension where there has been compliance with a notice under s 68(2) of the Administration Act. This is subject to s 96 of the Administration Act which enables, in stated circumstances, the pension to be suspended rather than cancelled. For Mr Tryon’s return to work situations prior to 1 May 2006 and on that date, suspension was implemented in accordance with s 96 of the Administration Act. However, following Mr Tryon’s injury and receipt of compensation from 14 November 2006, the respondent determined that s 96 of the Administration Act had no operation in his situation. Accordingly, the disability support pension was cancelled under s 93 of the Administration Act.

4. The respondent determined that, because of s 1061ZA of the Act, Mr Tryon’s entitlement to a concession card depended on payment of the disability support pension. Accordingly, it was also cancelled. However, at the hearing, Mr Keim, for the respondent, referred to s 1061ZD of the Act and conceded that, in accordance with that provision, the pensioner concession card should not have been cancelled. I am satisfied that his concession was properly made. In his submissions, Mr Tryon referred to s 37A of the Administration Act as entitling him to make a claim for another concession card. He said that he had done this and that his claim had been rejected. However, any such decision is not a matter for review by the Tribunal on this occasion. In relation to the concession card, the issue is whether it was correctly cancelled. This has been dealt with above.

5. The only issue for determination is whether Mr Tryon’s disability support pension was correctly cancelled under the provisions of the Act and Administration Act. Mr Tryon submitted that he was liable only to suspension of the disability support pension, rather than cancellation, because of s 97(1) of the Administration Act.

Consideration

6.      Once a person is qualified for the disability support pension, the rate of that pension is calculated in accordance with the rate calculator provided for in s 1064 of the Act.  This takes into account ordinary income such as that earned by Mr Tryon from his employment.  The rate of pension is reduced according to the level of income earned by a recipient of disability support pension.  The rate of disability support pension is also affected by compensation payments.  It is not disputed that compensation payments of $782 per week were paid to Mr Tryon from 14 November 2006.  Nor is it disputed that this was more than the ordinary income he received from his employment.  However, the impact of compensation payments on disability support pension is greater than that of ordinary income from employment because, unlike the sliding scale applicable to ordinary income from employment, compensation payments directly reduce disability support pension on a dollar for dollar basis: see s 1173 of the Act.  This meant that, although disability support pension was payable to Mr Tryon while he was earning income from employment, the level of his compensation payments reduced the payable amount of disability support pension to nil.  Section 98 of the Act provides that, if the relevant pension rate is nil, disability support pension is not payable. 

7. I am satisfied that disability support pension was not payable to Mr Tryon from 14 November 2006 because of the level of his compensation payments. I am also satisfied that it was liable to cancellation under s 93 of the Administration Act. As noted above, the Administration Act makes provision for the effect of s 93 to be over-ridden. That is the case with s 96 and 97 thereof. However, I am satisfied that those provisions do not have that effect in Mr Tryon’s situation. Both of those provisions operate where a person ceases to be qualified for disability support pension because the person obtains paid work for at least 15 hours per week. It was not because Mr Tryon obtained paid work that s 93 operated to cancel his disability support pension. It was because the rate of his compensation payments precluded pension payments to him. I am satisfied that neither s 96 nor s 97 provides support to Mr Tryon’s situation. 

Decision

8.      The Tribunal affirms the decision under review in relation to the cancellation of disability support pension but sets aside the decision to cancel his pensioner concession card.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  30 July 2007, 3 August 2007, 7 August 2007
Date of Decision  27 September 2007
The Applicant was not represented          
For the Respondent                  Mr C Keim and Mr B Hamilton, departmental            advocates