VANCO DJONESKI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 154

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2009] AATA 154

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4248

GENERAL ADMINISTRATIVE DIVISION		)
Re		VANCO DJONESKI

Applicant

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

Respondent

DECISION

Tribunal   Mrs Josephine Kelly, Senior Member

Date of oral decision        6 February 2009

Date of written reasons   11 March 2009

Place  Sydney

Decision The decision under review is affirmed.

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

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension (DSP) – Rate – Applicant granted invalid benefit from New Zealand  - Whether DSP should be adjusted to take into account invalid benefit – Applicant permanently blind – Application of International Social Security Agreement Between New Zealand and Australia –  DSP affected by New Zealand invalid benefit - Decision affirmed

Administrative Appeals Tribunal Act 1975, s 43(2A)

Social Security Act 1991, ss 94, 95, 1065

Social Security (International Agreements) Act 1999, s 6, Schedule 3

International Social Security Agreement between New Zealand and Australia, Arts 1, 13

WRITTEN REASONS FOR ORAL DECISION

11 March 2009 Mrs Josephine Kelly, Senior Member      

1. At the conclusion of the hearing of the terms of the decision made, and a summary of the reasons for that decision, were stated orally. The Applicant requested written reasons for the decision under s 43(2A) of the Administrative Appeals Tribunal Act 1975, which are furnished below.

SUMMARY

2.      Mr Vanco Djoneski has been receiving Disability Support Pension (DSP) since 5 October 2005. He qualifies for DSP because he is permanently blind. On 19 February 2008 Centrelink was advised by the New Zealand Ministry of Social Development that Mr Djoneski had been granted an “IB Invalids Benefit” from New Zealand (the New Zealand benefit) backdated to 2 November 2007. On 7 April 2008 a Centrelink review officer determined that Mr Djoneski’s rate of DSP was to be adjusted to take into account the New Zealand benefit.  The practical consequence was that Mr Djoneski’s DSP was to be reduced on a dollar for dollar basis taking into account the New Zealand pension. The Social Security Appeals Tribunal (SSAT) affirmed the review officer’s decision on 8 August 2008. Mr Djoneski applied for review in this Tribunal.

ISSUE

3.      The issue is whether Mr Djoneski’s rate of DSP should be adjusted to take into account his New Zealand benefit. 

MR DJONESKI’S CASE

4.      Mr Djoneski represented himself at the hearing and was assisted by his daughter, a law student, and a Serbian interpreter.  He put the following arguments. 

5.      First, he argued that his DSP should not be reduced dollar for dollar because the relevant international agreement applied only to means tested pensions.  His DSP is not mean tested because he is permanently blind and therefore the international agreement does not have effect in his case.

6.      Secondly, he argued that his DSP is a "blind pension", which is a separate type of pension not covered by the international agreement.   

7.      Thirdly, Mr Djoneski argued that he knows a woman who is also blind and who receives full DSP and Croatian entitlements.  Therefore, he should also receive the full DSP and the New Zealand benefit.

8.      Fourthly, Mr Djoneski argued that it was wrong that he had received his New Zealand benefit only from 2 November 2007 rather than from when had applied for it.  He blamed Centrelink for providing the incorrect date to the New Zealand authorities. 

LAW

9. Section 94 of the Social Security Act 1991 (the Act) sets out criteria that have to be satisfied to qualify for DSP. Section 95 of the Act provides that a person is qualified for DSP if the person is permanently blind. The rate of DSP payable for a person who is permanently blind is set out in s 1065 of the Act. DSP paid under s 95 is not subject to an assets test.

10. Schedule 3 of the Social Security (International Agreements) Act 1999 (the SSIA Act) contains the International Social Security Agreement between New Zealand and Australia (the Agreement). The provisions of the Agreement have effect despite anything in the social security law (s 6 of the SSIA Act).

11.     Article 1 of the Agreement provides that the Agreement applies in Australia to laws that apply to or affect “disability support pension.” It also provides that the Agreement applies to New Zealand social security laws that apply to or affect “invalids benefit”.

12.     Article 13 of the Agreement relevantly provides:

Calculation of Australian Benefits

1.  Where an Australian benefit is payable to a person, whether by virtue of the Agreement of otherwise, the rate of that benefit shall be determined under the social security law of Australia but when assessing income of that person, no New Zealand benefit paid to that person shall be regarded as income.

2.   Subject to paragraph 3, where an Australian benefit is payable, by virtue of this Agreement or otherwise, to a person who is in Australia, the rate of that benefit shall be determined by:

(a)calculating that person’s income according to the social security law of Australia but disregarding in that calculation the New Zealand benefit or benefits received by that person;

(b)deducting the amount of the New Zealand benefit or benefits received by that person from the maximum rate of that Australian benefit; and

(c)applying to the remaining benefit obtained under subparagraph (b) the relevant rate calculation set out in the social security law of Australia, using as the person’s income, the amount calculated under subparagraph (a).

CONSIDERATION

13.     The essence of Mr Djoneski's first argument is that the use of the conjunction "and" in paragraph 2 of Article 13 of the Agreement has the effect that the paragraph does not apply in a case like his where DSP is not subject to the assets test.  To put it another way, if a person's income is not taken into account for the purpose of calculating DSP, paragraph (a) does not apply and neither does paragraph (c) which requires the result of the calculation in (a) to be applied.  Therefore, Mr Djoneski submitted, paragraph 2 does not apply to him.

14.     I do not accept Mr Djoneski's argument. In my opinion, the calculation in paragraph 2 applies to his circumstances.  The three steps must be followed:  first, he has no income to be taken into account in accordance with paragraph 2(a).  The amount of the New Zealand benefit is deducted from the maximum rate of the DSP in accordance with paragraph 2(b) and then paragraph 2(c) is applied.  The fact that one of the parts of the calculation results in a nil input for the balance of the calculation does not mean that the relevant DSP under consideration is not covered by the Agreement.       

15. I do not accept Mr Djoneski's second argument that the DSP he receives is a different benefit, that is, a "blind pension" which is not subject to the Agreement. Section 95 of the Act clearly states that a person is qualified for DSP if the person is permanently blind. There is no such benefit under the Act as a "blind pension". The criterion "permanently blind" is one basis of qualification for the DSP. Section 94 sets other criteria to satisfy for DSP. Further, Article 1 of the Agreement clearly states that the DSP is a benefit to which the Agreement applies. I also find that the invalid benefit he receives from New Zealand is also clearly included in Article 1 of the Agreement and properly taken into account for the purposes of the calculation in Article 13, paragraph 2.

16.     I also do not accept Mr Djoneski's third argument that I should take into account his understanding of another person's case concerning a different agreement between Australia and Croatia.  I have to determine the matter before me according to the evidence and the law.  The circumstances Mr Djoneski referred to concern a different agreement, although prima facie it includes some similar provisions, and his understanding of the circumstances may or may not be correct.  I have no material upon which to make a finding one way or the other.  Finally, the decision in that case may have been wrong in law.

17.     Lastly, I understood Mr Djoneski's argument to be that he should have received his New Zealand benefit from a date earlier than 2 November 2007.  He blamed Centrelink for providing the New Zealand authorities with incorrect information.  I have no power to review the decision of a New Zealand authority in relation to the date from which Mr Djoneski's benefit was commenced.  Further, if Mr Djoneski has a complaint about the information provided by Centrelink to the New Zealand authorities, that is a matter for him to raise with Centrelink. There is relevantly no reviewable decision before me to consider with respect to either of those matters.

DECISION

18.     For the reasons given above, the reviewable decision of the SSAT dated 8 August 2008, affirming the decision to adjust the rate of payment of the DSP to take into account the New  Zealand  benefit paid to Mr Djoneski, is affirmed.

I certify that the preceding 18 paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ………[sgd]………

Steven Mulipola, Associate

Date of hearing:  6 February 2009

Date of oral decision:  6 February 2009

Date of written reasons:  11 March 2009

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Centrelink Legal Services and Procurement