Veres and Secretary, Department of Social Services (Social services second review)

[2020] AATA 5939

Veres and Secretary, Department of Social Services (Social services second review) [2020] AATA 5939 (6 November 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6760

Re:Stefan Veres

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member A Durkin

Date:6 November 2020

Place:Adelaide

The Tribunal affirms the decision under review.

..............................[sgnd]......................................

Member A Durkin

Catchwords

Age pension – Disability support pension – application of proportionality decision – Australian working life residence period - decision under review affirmed.

Legislation

Social Security Act 1991

REASONS FOR DECISION

Member A Durkin

6 November 2020

1. The decision under review was made on 14 October 2019 by Member Cox in the Social Services and Child Support Decision Division of the Tribunal.

2. The decision of Member Cox was to affirm the decision of the Authorised Review Officer made on 5 August 2019.

3. The issue before the Member was whether the age pension was correctly calculated from 14 September 2016.

4. Further, there was the question of whether the proportionality provisions of s1220A and s1221 of the Social Security Act1991 were correctly applied in reducing the age pension.

   BACKGROUND FACTS:

5. The Applicant was born in the Slovak Republic and first arrived in Australia on 16 May 1969.

6. The Applicant began receipt of a Disability Support Pension on 1 April 1999.

7. On 1 July 2000 the Applicant left Australia and returned on 25 February 2014. 

8. On 5 June 2012 the Applicant had transferred to the age pension on account of his achieving the relevant age.

9. On 12 January 2016 the Applicant told the Department that he intended to travel to the Slovak Republic on 16 March 2016.

10. On 27 April 2016 the Applicant’s energy supplement ended and his pension supplement was reduced to the basic rate.

11. On 14 September 2016 the disputed decision was made to reduce the amount of the aged pension according to the proportionality provisions of the Act.  Payments of rent assistance were also ceased.

12. On 7 March 2019 the Applicant returned to Australia and his age pension resumed being paid at the full rate.

13. An Application for Review was lodged at the decision made to reduce the rate of the age pension from 14 September 2016 and, on 14 October 2019, Member Cox affirmed that decision.

14. Member Cox’s decision sets out the aforesaid background facts and correctly identifies the issues raised by the Application for Review.

15. In affirming the decision to reduce the Applicant’s age pension on 14 September 2016, Member Cox was correct as a matter of law. s1221 of the Social Security Act 1991 provides a ‘Pension Portability Rate Calculator’ which applies an ‘Australian Working Life Residency’ (“the AWLR”) period to the calculation process.

16. The law in respect of that factor changed from 1 July 2014. As noted above, the Applicant transferred to the Age Pension on 5 June 2015. Paragraphs 5 to 7 of Member Cox’s decision accurately sets out the changes that came into effect from 1 July 2014.

17. On 19 November 2015, according to Centrelink records, the Applicant contacted Centrelink to enquire of the impact on his receipt of the Age Pension if he were to live overseas and the Tribunal is satisfied that he was given the correct advice.

18. The rules then provided that the AWLR is calculated under s1221 according to whether a client had a Australian Working Life Residency of 35 years or more or a period of less than 35 years. Prior to 1 July 2014 the residence factor was calculated in respect of a period of 25 years. This lesser period was preserved for those receiving the Age Pension immediately before 1 July 2014.

19. The Social Security Guide provides, inter alia, that;

    “Pensioners living overseas immediately before 1 July 2014 continue to be paid under the current 25 year , unless they return to Australia for longer than 26 weeks and leave again, when the new rules will start to apply to their pension calculation.”

    As Mr Veres was resident in Australia as at 1 July 2014, the AWLR was correctly calculated and applied in respect of his Age Pension.

    DECISION:

20. The decision under review of 14 October 2019 is accordingly affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member A Durkin.

.................[sgnd].......................

Administrative Assistant Legal

Dated: 6 November 2020

Date of hearing:   29 May 2020              

Applicant:  On the papers

Respondent’s representative:   On the papers