TSIOROTIOTIS ApplicantAndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 926

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 926

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2336

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DEMETRIOS TSIOROTIOTIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date19 November 2010  

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY - applicant residing in Greece - portability of age pension - proportionalisation on basis of Australian working life residence - decision under review affirmed

Social Security Act 1991, ss 47, 1213, 1218, 1219, 1220, 1221, 1237A

Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000

REASONS FOR DECISION

19 November 2010 Ms A F Cunningham (Senior Member)   

1.       The applicant, Demetrios Tsiorotiotis, seeks the review of a decision to pay a proportional rate of age pension.  Mr Tsiorotiotis is now a permanent resident of Greece having departed Australia on 25 March 2000. 

2.       Up until 8 October 2009 Mr Tsiorotiotis had been in receipt of the full rate of age pension.   On 13 October 2009 a Centrelink officer made a decision to reduce Mr Tsiorotiotis' rate of age pension on the basis of his working life residence (WLR).  This decision was affirmed by an Authorised Review Officer on 18 December 2009 and by the Social Security Appeals Tribunal on 28 April 2010. 

3.       The hearing was conducted by way of telephone link to Mr Tsiorotiotis in Greece with the assistance of an interpreter. 

the issue

4.       The issue for the Tribunal to determine is how Mr Tsiorotiotis' rate of age pension is to be calculated in accordance with the provisions of the Social Security Act 1991 (the Act).

5.       Mr Tsiorotiotis informed the Tribunal that he is not able to manage financially on the reduced amount of pension.  He understood that he would receive the full rate of age pension once he returned to Greece.  He contended that his pension should be calculated in accordance with the legislation that applied at the time of his departure from Australia. 

the facts

6.       The following background facts were not in dispute.

7.       Mr Tsiorotiotis first entered Australia on 20 November 1954 and resided in Australia until he left for Greece on 6 January 1969.  Mr Tsiorotiotis returned to Australia on 26 January 1977 and left for Greece again on 13 April 1979.  He returned to Australia on 17 October 1987 and departed for Greece on 25 August 1988.  After returning to Australia he departed permanently on 25 March 2000. 

8.       Mr Tsiorotiotis has been in receipt of age pension since turning 65 years on 26 August 1988.  He was in receipt of the maximum basic rate of age pension until it was determined in 2009 that his rate had not been calculated according to the pension portability rate calculator under the Act.  An overpayment of $33,424.69 was waived pursuant to the provisions of section 1237A on the basis of administrative error.  Mr Tsiorotiotis' ongoing rate of age pension was calculated having regard to his Australian WLR of 207 months. 

9.       Mr Tsiorotiotis did not dispute the circumstances of his various departures from Australia as outlined in the decision under review and confirmed that he left Australia on 25 March 2000 with the intention of residing permanently in Greece.  During absence from Australia, Mr Tsiorotiotis maintained a small apartment in Greece which was vacant during his periods of residence in Australia.  He became an Australian citizen on 7 April 1961. 

10.      During his periods of absence from Australia Mr Tsiorotiotis maintained few links with Australia.  Prior to his first departure on 6 January 1969 he sold his Australian home and took the proceeds of sale overseas.  He did not lodge a taxation return for the 1968/69 financial year and only resided in Australia for just over two years before departing for Greece again on 17 October 1987.  Following the death of his wife, Mr Tsiorotiotis remarried in 1988 and departed again for Greece in August of that year.  He did not lodge a tax return for the 1988/89 financial year.  Mr Tsiorotiotis' second wife died in 1999.

the legislation

11.      The relevant law is contained in the Social Security Act 1991.

12.      It is not disputed that Mr Tsiorotiotis meets the qualification requirements for age pension as set out in section 47 of the Act.  Section 1213 provides that a person's right to continue to be paid an age pension is not affected by the person's leaving Australia.  This provision is subject to the provisions of sections 1218, 1219 and 1220 which have no applicability in this case.

13.      At the time of Mr Tsiorotiotis' departure from Australia, the legislation provided that age pension was payable at the full rate for 52 weeks and thereafter calculated according to the pension portability rate calculator (PPRC) and affected by a person's Australian WLR.  If a person has an Australian WLR of 300 months they are paid the basic rate of AP, but for a lesser period the payment is proportionalised accordingly ("Portability Rate" sections 1220A, 1220B and 1221).

14.      The law was amended in September 2000 after the applicant departed Australia.  (Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000). The amendment reduced the period during which a person could be paid the full rate of age pension if they had an AWL of less than 300 months from 52 weeks to 26 weeks.

15.      Clause 128 of the Savings and Transitional Provisions in Schedule 1A are applicable to Mr Tsiorotiotis' circumstances as he was absent from Australia immediately before 20 September 2000 and had not returned for a continuous period of 26 weeks or more since 20 September 2000, meaning that he was entitled to the basic rate of age pension for the first 12 months of his absence. 

discussion

16.      It appears that the applicant's rate of age pension was not adjusted on 25 March 2001 (12 months after his departure from Australia) but continued to be paid at the full rate until a decision of a Centrelink officer to apply the portability rate on 13 October 2009.

17.      A "person's working life" is defined in section 1221-B as beginning when the person turns 16 and ending when the person reaches pension age.  In Mr Tsiorotiotis' case this was on 26 August 1988 when he turned 65 years of age.  The section further provides that a person's period of Australian WLR at a particular time is the number of months during a person's working life during which the person has been an Australian resident.  The Tribunal accepts that Mr Tsiorotiotis was an Australian resident for the following periods:

·20 November 1954 to 6 January 1969

·26 January 1977 to 13 April 1979

·17 October1987 to 25 August 1988 (the day before his 65 birthday)

18.      Mr Tsiorotiotis did not dispute the respondent's findings regarding his residency.   For the reasons outlined in paragraphs 9 and 10, the Tribunal does not consider that Mr Tsiorotiotis was an Australian resident at any other time.  In the interim periods when he was absent from Australia, which totalled some eight years, Mr Tsiorotiotis was a resident of Greece.   Accordingly these periods cannot be included in the calculation of his Australian WLR.

19.      Mr Tsiorotiotis' Australian WLR was calculated at 207 months.  Mr Tsiorotiotis advised that he did not query this figure and the Tribunal accepts that the calculation was undertaken in accordance with Module B in the Act. 

20.      As Mr Tsiorotiotis' period of Australian working life residence is 207 months, being less than 300 months, his residence factor is 207/300 (section 1221-C2). 

21.      The overall rate calculation process is contained in Module A.  The Method statement as to how a person's portability rate is to be calculated through a four step process is contained in section 1221-A1.  This section is referenced through section 1220A which states that a person's rate of age pension is to be calculated using the pension portability rate calculator at the end of section 1221.  Section 1220A reads as follows:

"1220A  Proportionality—age pension rate

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) during the period of absence, the person’s claim for the age pension is granted under the Social Security (Administration) Act 1999".

22.      It was submitted on behalf of the Secretary that none of the exception provisions contained in section 1220B of the Act which previously applied to persons overseas in receipt of various social security pensions including the age pension, apply in this case.  An analysis of those exception provisions confirms the advice submitted on behalf of the Secretary.

23.      Since Mr Tsiorotiotis departed Australia to reside in Greece, Australia has entered into an International Social Security Agreement with Greece.  The provisions of that Agreement provide that payment of the age pension is to be undertaken in accordance with the provisions of the Australian Social Security Act.  The intent of the Agreement is that responsibility for the payment of Social Security benefits is to be shared between the two nations.  Mr Tsiorotiotis has advised however, that despite his enquiries he has not been successful in obtaining any form of social security payment through the Greek government. 

24.      For the reasons outlined above, the decision of the Tribunal is to affirm the decision under review which correctly calculates Mr Tsiorotiotis' rate of Australian age pension in accordance with the pension portability rate calculator and on the basis of an Australian working life residence of 207 months with effect from 25 March 2001.  Despite Mr Tsiorotiotis' advice that he is not currently in receipt of any other form of pension from the Greek government, there is no residual discretion for the Tribunal to make a determination otherwise than in accordance with the provisions of the Australian Social Security Act 1991.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:     R Hunt (Administrative Assistant)

Date/s of Hearing  1 November 2010
Date of Decision  19 November 2010
Solicitor for the Applicant          Applicant on his own behalf
Solicitor for the Respondent     Mr B Sparkes, Centrelink Advocacy Branch