TSOMES and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 440

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 440

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)          No 2010/4784

GENERAL ADMINISTRATIVE DIVISION		)
Re		Chrissoula TSOMES

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date24 June 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Mr R P Handley
  Deputy President

CATCHWORDS

SOCIAL SECURITY – wife pension – portability – disqualification from pension after being absent for more than 12 months - applicant not resident for more than ten years – not an entitled person - pension backdated to date applicant first enquired about benefit – decision under review affirmed

RELEVANT ACTS

Social Security Act 1991 (Cth), consolidated to 12 April 1997

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

24 June 2011 Mr R P Handley, Deputy President          

1.Mrs Tsomes has applied for the review of a decision of the Social Security Appeals Tribunal (SSAT) affirming a decision to cancel payment of wife pension from 15 May 1997 and a decision to pay carer allowance and carer payment from 17 March 2010 and not before this date.

Background

2.The material facts are not in dispute.  Mrs Tsomes was born in Greece in 1958 and is aged 52.  She migrated to Australia with her husband, John Tsomes, in 1987 and, on 9 February 1990, became an Australian citizen.  Mrs Tsomes’ twin sons were born in Australia in January 1990. 

3.On 1 October 1987, Mrs Tsomes was granted ‘wife pension’.  On 8 May 1996, Mrs Tsomes returned to Greece to care for her elderly parents.  Both her parents died later that year.  On about 1 January 1997, Mr Tsomes returned to Greece accompanied by their two sons. 

4.By letter dated 2 May 1997, sent to an address for Mrs Tsomes in Cringila, Centrelink informed Mrs Tsomes that her wife pension had been stopped from after 1 May 1997 because (at the next payment date) she had been absent from Australia for more than 12 months.

5.On 16 March 2010, Mr and Mrs Tsomes returned to Australia and, on 17 March 2010, Mrs Tsomes attended the Centrelink office in Wollongong with a view to making a claim for social security benefits.  Mr Tsomes, who is now aged 67, is receiving an aged pension.

6.On 22 March 2010, Mrs Tsomes lodged a claim for carer payment and carer allowance and, on 13 April 2010, Centrelink backdated these payments to commence 17 March 2010.  On 30 June 2010, Mrs Tsomes asked for a review of the decision not to pay her the carer payment and carer allowance from a date earlier than 17 March 2010 and of the decision to cancel her wife pension on 1 May 1997.  These decisions were affirmed by an original decision-maker on 8 July 2010, by an authorised review officer on 9 August 2010, and by the SSAT on 28 September 2010.  On 3 November 2010, Mrs Tsomes applied to the Tribunal for a further review.

Submissions

7.At the hearing in Wollongong, Mr Tsalidis made submissions on behalf of Mrs Tsomes.  He said that Mrs Tsomes never received the Centrelink letter dated 2 May 1997 notifying her of the cancellation of her wife pension.  He noted that Mr Tsomes had contacted Centrelink about his wife’s pension on 6 November 1996.  Mr Tsalidis asked the Tribunal to consider whether there were any legislative provisions permitting the backpayment of benefits to Mrs Tsomes because of her special circumstances.  He also questioned whether the formal treaty between Australia and Greece, signed on 23 May 2007 and operative on 1 October 2008, was limited purely to age pension.

8.Mr Tsalidis said that while Mrs Tsomes was in Greece between May 1996 and March 2010, she relied on her siblings for financial support, and it was not until 2010 that she and her husband had the financial resources to enable them to return to Australia.

9.Mr Slattery, for the Secretary, said it is not clear what the Secretary’s last known address was for Mrs Tsomes in early 1997.  However, while he conceded that the letter dated 2 May 1997 notifying Mrs Tsomes of the cancellation of her wife pension may not have been sent to her last known address, he submitted that nothing turns on this.  Mr Slattery submitted that the only backdating available in Mrs Tsomes’ case is that from the date of contact about eligibility for possible social security benefits on 17 March 2010 as explained by the SSAT in their decision.  He said that the treaty between Australia and Greece operative on 1 October 2010 is limited to age pension and does not apply to wife pension.

Discussion

Wife Pension

10.At the time Mrs Tsomes’ wife pension was cancelled from after 1 May 1997, s 1216 of the Social Security Act 1991 (the 1991 Act) provided relevantly that a woman who had been an Australian resident and continuously outside Australia for a period of 12 months became disqualified for wife pension on the day after the 12 month period ended. Section 1216 stated:

1216  Certain pensions generally portable for 12 months only

Subject to section 1216B, if:

(a)a woman has been an Australian resident; and

(b)she has been outside Australia continuously for a period of 12 months; and

(c)on the day after the 12 month period ends, she is not in Australia or a specified foreign country;

she is disqualified for:

(d)wife pension; and

(e)widow B pension; and

(f)special needs wife pension; and

(g)special needs widow B pension;

as from that day.

11.Greece was not, at that time, a ‘specified foreign country’ as defined by s 23(1) and s 38(1) of the 1991 Act.  Greece did, subsequently, become such a country by virtue of the treaty that came into operation on 1 October 2010.  However, the only Australian benefit covered by this agreement is the age pension and the agreement does not extend to the wife pension. 

12.The term ‘Australian resident’ was defined in s 7(2) as follows:

7 (2)  An Australian resident is a person who:

(a)resides in Australia; and

(b)is one of the following:

(i)an Australian citizen;

(ii)the holder of a permanent visa;

(iii)the holder of a special category visa who is likely to remain permanently in Australia;

(iv)the holder of a special purpose visa who is likely to remain permanently in Australia.

13.Notwithstanding s 1216, s 1216B(1) provided that a woman’s entitlement for a wife pension was not affected by her being outside Australia “while an entitled person”. Section 1261B(1) stated:

(1) A woman’s qualification for a:

(a)     wife pension; or

(b)     widow B pension; or

(c)     special needs wife pension; or

(d)     special needs widow B pension;

is not affected by her being outside Australia while an entitled person.

14.The term ‘entitled person’ was defined in s 1216B(2) along with the inter-related term ‘allegation authority’:

1216B (2)         In this section:

allegation authority means:

(a)     the Greek-Australian Welfare Workers’ Association of NSW; or

(b)     the Commission of Enquiry established by Letters Patent of 9~ February 1984 and 16 August 1984 to investigate matters known as the Greek conspiracy;

entitled person means:

(a)     a woman who was an Australian resident for at least 10 years; or

(b)     a woman in receipt of a widow B pension because she was legally married and her husband has died; or

(c)     a woman who was, or is the partner of a man who was, the subject of a recommendation by an allegation authority that resulted in payment of an amount of compensation by the Commonwealth to her or her partner.

15.Neither Mrs Tsomes nor her husband was the subject of a recommendation by an allegation authority in relation to the Greek conspiracy case.  The only possible relevant provision in Mrs Tsomes’ case is paragraph (a), a woman who has been an Australian resident for at least 10 years.  However, at the time her wife pension was cancelled, Mrs Tsomes had not been resident in Australia for 10 years. 

16.In conclusion, because Mrs Tsomes was outside Australia for a period of 12 months (from 8 May 1996) and remained outside Australia on the day after the 12 month period ended, she ceased to be qualified for wife pension from that day, being 8 May 1997. (It appears the last payment of wife pension was made on 1 May 1997, the next payment being due, ordinarily, on 15 May 1997.) Further, she was not an ‘entitled person’ because at the time Mrs Tsomes left Australia on 8 May 1996, she had not been an Australian resident for at least 10 years, having commenced residing in Australia on 15 September 1987. Apart from s 1216B, there is no other provision allowing for the portability of a wife pension in such circumstances.

17.Having been disqualified from receiving a wife pension from 8 May 1997, s 1217 provided for such disqualification to continue until the person returned to Australia.  Section 1217 stated:

1217  Effect of disqualified person returning to Australia

(1) If a person is disqualified under section 1216 or subsection 1216A (2) for a pension the person remains disqualified until returning to Australia.

(2)     A temporary return to Australia is sufficient for the purposes of subsection (1).

18.Even if Centrelink sent the notice of cancellation of Mrs Tsomes’ wife pension to the wrong address, if a review was sought more than three months after the giving of the notice, any favourable determination would only take on the day on which the person sought the review which, in this case, was 20 March 2010.  Section 184(3) stated:

184(3)If:

(a)     a decision (in this subsection called the previous decision) is made in relation to a wife pension; and

(b)     a notice is given to the woman to whom the pension is payable advising the woman of the making of the previous decision; and

(c)     the woman applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and

(d)     the favourable determination is made as a result of the application for review;

the determination takes effect on the day on which the woman sought the review.

19.Thus, in the Tribunal’s view, Centrelink correctly cancelled Mrs Tsomes’ wife pension after 1 May 1997 and she was not eligible to receive wife pension again until such time as she returned to Australia, which was on 16 March 2010. 

Carer Payment and Carer Allowance

20.Section 11 of the Social Security (Administration) Act 1999 (the Administration Act) states that a person who wants to make a claim for a social security benefit must make a claim for that payment. Such a claim must, pursuant to s 16, be in writing or in accordance with an approved form. Mrs Tsomes lodged a claim for carer payment and carer allowance on an approved form on 22 March 2010. Where such a claim is made, the start date for the social security payment is determined in accordance with Schedule 2 of the Administration Act. The general rule for start days is stated in clause 3(1):

3   Start day--general rule

(1)  If:

(a)     a person makes a claim for a social security payment; and

(b)     the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

21.Mrs Tsomes lodged her claim for carer payment and carer allowance on 22 March 2010. However, s 13(1) of the Administration Act allows for the backdating of social security payments to the date on which a person contacted Centrelink about a claim for a social security payment provided a claim for the payment is made within 14 days after contacting Centrelink. Mrs Tsomes (through her husband) first contacted Centrelink about making a claim for social security payments on 17 March 2010 and Centrelink therefore backdated her carer payment and carer allowance from that date. There is no provision for any earlier backdating of a social security payment.

22.Thus, in the Tribunal’s view, Centrelink correctly paid Mrs Tsomes’ carer payment and carer allowance from 17 March 2010, there being no applicable provision allowing for such payments prior to that date.

Decision

23.The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:..........[sgd].....................................................................
           A. Veness, Associate

Date of Hearing:  20 June 2011
Date of Decision:  24 June 2011
Representative for the Applicant:              Charles K Tsalidis, Solicitor

Representative for the Respondent:         B Slattery, Centrelink Advocacy Branch