Venetsanos and Secretary, Department of Family and Community Services

[2004] AATA 316

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1147

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARIA VENETSANOS

Applicant

And SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date4 March 2004

PlaceSydney

Decision Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides, for the reasons given orally, to affirm the decision under review, dated 11 July 2003 to pay the applicant arrears of age pension from 15 January 2002, and not before.

[Sgd] Ms N Bell  Senior Member

CATCHWORDS

SOCIAL SECURITY - Age pension - Payment of arrears

LEGISLATION

Social Security (Administration) Act 1999 - ss 11, 16, 109

REASONS FOR DECISION

4 March 2004 Ms N Bell, Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4 March 2004
Date of Decision  4 March 2004
For the Applicant  Self represented
For the Respondent                  Luke Carter, Departmental Advocate

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter N2003/1147
By  MS N.P. BELL, Member
MONA VENETSANOS and
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
SYDNEY, THURSDAY, 4 MARCH, 2004

MS BELL:   The applicant's correct date of birth is 20 March, 1934 but her date of birth shown in her Australian passport and citizenship papers was 21 May, 1941.  This has now been rectified.

The applicant has resided in Australia with numerous returns overseas.  She lodged her first claim for age pension on 5 February, 2001.  On 21 February, 2001 the respondent sent a letter advising that her claim had been rejected and that letter was sent to the address given by the applicant on her claim form.

On 15 January, 2002, the applicant contacted Centrelink and advised of her intention to claim age pension again.  On 21 January, 2002 that claim was lodged by the applicant.  That claim was also rejected by the respondent but no notification of that rejection was sent by the respondent to the applicant.

The applicant went overseas and on her return the respondent gave her an income and assets form.  On its completion the respondent granted an age pension.  That grant was made on 15 April, 2003 with arrears to be paid from 15 January, 2002 that being the date on which she had advised of her intention to claim.  I accept that there is no record held by Centrelink of the applicant having contacted Centrelink in 2001 after the date of her claim for age pension and in particular in the 13 weeks following the rejection of her claim for age pension to request a review of or to discuss her claim.

Mrs Venetsanos' evidence was that she attended a Centrelink office more than five times in 2001 but she was unable to give even approximate dates of her attendance or details of the discussions she had.  Her evidence at first that she did not attend a Centrelink office until she had received certain letters from the Prime Minister in November and December, 2001.  She was adamant that she did not receive the letter from Centrelink dated 21 February advising of the decision to cancel her age pension. 

On the basis of the evidence before me, I cannot be satisfied that Mrs Venetsanos requested a review of the decision in February 2001 to not grant her age pension within 13 weeks of the date of notification of that decision or made any inquiry about her claim for age pension during that period.  I am satisfied that notification was sent to her by letter dated 21 February, 2001 to the address she had nominated on her claim form. 

The combined effect of sections 11, 16 and 109 of the Social Security Administration Act is that a claim for age pension must be made in writing and that for a later favourable decision to be backdated to the date of an earlier unfavourable decision review of that earlier decision must be requested within 13 weeks of the date of notification of the earlier decision.

I am not satisfied that the applicant requested a review of the decision in February 2001 to reject her claim within 13 weeks of notification of that decision.  I accept her evidence that she did not receive that notification but the effect of section 23 of the Social Security Act is that she is deemed to have received it. 

The applicant's next claim was made in January 2002.  Following her advice to Centrelink in that month that she intended to claim.  That claim was also rejected but she was never notified of the rejection.  Later contact by the applicant with Centrelink prompted it to reconsider its rejection and an age pension was granted, backdated to January 2002.  This is the earliest date at which age pension could be paid to the applicant.

I appreciate that Mrs Venetsanos' dealing with Centrelink and possibly other government agencies has been made difficult and confused by the incorrect recording of her date of birth. I also appreciate that this has undoubtedly been made more difficult by the fact that English is not her first language. However, the legislation is clear in its effect and the recording of her correct date of birth is not relevant to this decision under review.  For these reasons I affirm the decision under review.