Veldhoven and Secretary, Department of Family and Community Services

[2005] AATA 358

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/1157

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHANNES VELDHOVEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date22 April 2005

PlaceMelbourne

Decision The decisions of the Social Security Appeals Tribunal under review in these proceedings are affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – age pension – rate of payment – overpayment of pension from Netherlands – reduction in rate of payment from Centrelink – overpayment from Netherlands refunded – whether any overpayment by Centrelink – whether entitled to reassessment of rate of payment from Centrelink  decisions affirmed

Social Security Act 1991(C’th) s1237A and s1237AAD

Austin and Another v Secretary, Department of Family and Community Services (1999)

57 ALD 330

REASONS FOR DECISION

22 April 2005 Mr John Handley, Senior Member           

1.      The applicant applied to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 2 September 2003.  The SSAT then reviewed two decisions made by an Authorised Review Officer (“ARO”) being the reduction of the rate of age pension payable and a decision to raise and recover a debt of $1315.92 with respect to age pension paid between July 2001 and April 2003.

2.      The application was listed for hearing in Melbourne on 12 April 2005.  Mr Veldhoven appeared without representation.  The respondent was represented by Mr Meehan.

3.      The application is unusual and complex and the circumstances may be briefly summarised as follows.

4.      Mr Veldhoven is presently 82 years of age and has been a resident of Australia in excess of 40 years. 

5.      At all relevant times he has been entitled to, and paid, a pension from the Netherlands and from Germany. 

6.      In approximately November 2000, Mr Veldhoven was notified by the Dutch Pension Authorities (Sociale Verzekerings Bank – “SVB”) that he had been overpaid pension by it.  It was alleged that he had been overpaid between November 1995 and July 1996 in the sum of 776 gilders but by reason of limitations upon the time permitted to recover, he was advised that that sum would not be recovered.  He was also advised that he had been overpaid between August 1996 and November 2000 in the sum of 5947 gilders.  That sum was found by SVB to be recoverable. 

7.      Immediately prior to November 2000, Mr Veldhoven had been paid an Australian age pension and during the period November 1995 to November 2000, the rate of Australian pension had been calculated by reference to his income from all sources.  Necessarily this included regard for the pension that had been paid from the Netherlands which had been found subsequently by SVB to have been at a rate greater than he was entitled.

8.      Ultimately the sum of 5947 gilders was recovered by SVB by Mr Veldhoven consenting to withholdings of Dutch pension for approximately two years and the balance of the sum then outstanding was repaid by him in a lump sum payment. 

9.      Mr Veldhoven subsequently made an application to have his Australian age pension rate readjusted for the period August 1996 to November 2000 upon the basis that by reason of him repaying Dutch pension he was otherwise entitled to a greater rate of Australian pension.  That is to say, after repaying the Dutch authorities, his Australian pension should have been assessed against the rate of pension that would have been paid to him from the Netherlands but for the overpayment.

10.     It appears that Mr Veldhoven made representations to the Swan Hill office of Centrelink upon this issue.  For reasons which are not apparent from the evidence heard in these proceedings, or from the T-documents, an officer of the Swan Hill office decided that there was an entitlement to arrears of pension from Centrelink in the sum of $1351.92.  That sum was paid to Mr Veldhoven.  Apparently he made calculations of the rate of pension that should have been paid to him and asserted that a further $700.00 was payable. 

11.     In approximately April 2003, Centrelink conducted a data match search of the income that had been paid to former Dutch nationals and found that the sum of $1351.92 that had been paid to Mr Veldhoven by Centrelink had in fact been paid in error, that it constituted an overpayment and it was a recoverable debt.

12.     It was upon that decision and the decision as to the rate of age pension paid from April 2003, that Mr Veldhoven sought review by the SSAT.

13.     The SSAT ultimately decided that the sum of $1351.92 was overpaid but it should be waived because the debt was “attributable solely to an administrative error” on the part of Centrelink (s1237A of the Social Security Act 1991 (“the Act”)).  Additionally the payment was received in “good faith” (s1237A of the Act) and there were “special circumstances” existing to permit a waiver (s1237AAD of the Act). The respondent did not seek a review of that decision.

14.     Accordingly this application can only proceed upon the remaining issue which was before the SSAT and that is the issue of the rate of age pension payable from April 2003.

15.     Upon the evidence heard in the proceedings on 12 April 2005 – which was not apparently available to the SSAT when it conducted its review in September 2003 – all of the SVB pension has been recovered in full and the pension subsequently paid from SVB and from Germany has permitted an accurate calculation of age pension entitlement from Centrelink.  Mr Veldhoven does not now assert that his rate of age pension from 9 April 2003 had been paid to him at any rate less than his proper entitlement.

16.     It therefore follows that that remaining part of the SSAT decision should be affirmed with the notation that from 9 April 2003 pension has been paid to him at the correct rate.

17.     The application took a considerable period of time to be listed for hearing before this Tribunal.  Subsequent to the first Preliminary Conference in January 2004, an application had been made – and was awaiting outcome – for an Act of Grace payment for the remaining sum of $700.00 as calculated by Mr Veldhoven arising out of the claim that he made for readjustment of his Australian pension consequent upon recovery by SVB of the pension paid in error.

18. It was learnt at the hearing on 12 April 2005 that a decision has not yet been made on the Act of Grace application.

19. The SSAT decided that there was no mechanism within the Act to permit arrears of pension that should have been paid because Mr Veldhoven did not request review of the decision to reduce his pension (after regard was had to the inflated and erroneous rate of SVB pension) within 13 weeks of those payments being made. It was found by the SSAT that s1072 of the Act requires Centrelink to take account of “ordinary income” when calculating the rate of the Australian pension.  It was found that Centrelink did act correctly in its calculations at the time that the inflated rate of pension was being paid from the Netherlands and in circumstances where a review is not sought within 13 weeks there is no discretion available to vary the decision previously made.

20.     Whilst the SSAT ultimately decided that the debt of $1351.92 should be waived, it did give consideration to whether Mr Veldhoven should be entitled to take advantage of the principles enunciated by Drummond J in Austin and Another v Secretary, Department of Family and Community Services (1999) 57 ALD 330. In that decision His Honour referred to the concept of “notice” within the Act and the collateral application for review within 13 weeks from receipt of such a notice.

21.     The SSAT did not have any powers to make a decision on that issue.  Clearly this Tribunal also does not have any powers to make a decision upon that issue.  Indeed that issue is not before this Tribunal at all.

22.     However, Mr Veldhoven has now been waiting approximately 15 months for the outcome of his Act of Grace payment.

23.     Absent the Social Security legislation it would appear that he has received less than his proper entitlement to age pension and in the event that the balance of the amount that he asserts is owing to him is paid, his relationship with the Department will no doubt be improved and he will no longer be of the belief that the Department is choosing to hide behind legislation which clearly did not envisage his circumstances.

24.     If calculation of any entitlement is to occur at all, it will not be a simple exercise.  It will necessarily require consideration of exchange rates over a number of years but an examination of the T-documents indicates that that had been factored into past calculations.

25.     Whilst acknowledging that this Tribunal has no authority or jurisdiction with respect to this issue, I would recommend, with respect, that a decision be made upon the applicant’s Act of Grace application without further delay.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of ‑
Mr John Handley, Senior Member

Signed:         Alice Beattie
  Associate

Date of Hearing  12 April 2005
Date of Decision  22 April 2005
Solicitor for the Applicant          Nil - Self Represented
Departmental Advocate            Mr. S Meehan