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

[2024] AATA 2885

Voloder and Secretary, Department of Social Services (Social services second review) [2024] AATA 2885 (19 July 2024)

Division:GENERAL DIVISION

File Number(s):  2024/1386

Re:Edin Voloder

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak KC, Member

Date:19 July 2024

Date of written reasons:        15 August 2024

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside and substitutes the decision under review with a decision that the Applicant's rate of aged pension is to be paid at a reduced rate from 11 August 2023, and that his actual entitlement to aged pension for the period of 11 August 2023 to 24 August 2023 is $146.21.

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

Mr A. Maryniak KC, Member

Catchwords

SOCIAL SECURITY – Aged pension recipient – income and assets test – Social Security Act 1991 s 1064 – Pension rate calculator A – reviewable decision set aside and substituted.

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Act 2000 (Cth)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

15 August 2024

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished for the Applicant and to the Respondent.

I certify that the following 17 (seven-teen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

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

Associate

Dated: 15 August 2024

Date of hearing:	19 July 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Stefana Doslo of Services Australia

ANNEXURE A

1. The Applicant seeks review of a decision of the Social Security and Child Support Division of this Tribunal of 7 February 2024 affirming a decision of Services Australia to pay the Applicant a reduced rate of aged pension for the period 11 August 2023 to 24 August 2023 due to his and his partner’s combined income.

1. As submitted by the Respondent, the Tribunal confirms the issue to be decided in this matter is the Applicant’s correct entitlement to the aged pension from 11 August 2023 to 24 August 2023, including consideration of whether the Applicant’s rate of pension was correctly calculated for that period, and, for completeness, whether the Applicant is a member of an illness separated couple and can be paid at the illness separated couple rate, although the Tribunal notes that no specific submissions were made by the Applicant during the hearing on that latter point. 

1. The background facts are helpfully set out in the Respondent’s Statement of Issues, Facts and Contentions (‘SIFC’) at paragraphs 3.1 to 3.7, and the Tribunal finds they are made out on the materials referred to therein and, as a consequence, are established as set out below:

   3.1. The Applicant has been married to Mrs Jasminka Voloder since 3 August 1979 [T11/p199]. From 2 April 2015, the Applicant and Mrs Voloder have resided together at [a unit in] Dandenong [ST4/pp32-33].

   3.2. The Applicant was in receipt of disability support pension from 30 January 2015, and was transferred to age pension on 27 July 2022 [T12/p200].

   3.3. Since 27 March 2020, Mrs Voloder has received jobseeker payment and was placed on a fortnightly reporting regime to report her gross employment income [ST5/pp33, 35]. Mrs Voloder is employed by Randstad Pty Ltd as an Educator and paid weekly.

   3.4. Since 27 July 2022, the Applicant has received a reduced rate of age pension because of his combined income, consisting of:

   a. Mrs Voloder's employment income from Randstad Pty Ltd;

   b. The Applicant's monthly foreign pension income of $283.811 from Bosnia and Hercegovina; and

   c. The Applicant's and Mrs Voloder's deemed investment income of $0.19 (per annum) each from their bank account.

   3.5. On 29 July 2022, the Applicant was placed on a fortnightly reporting regime to report Mrs Voloder's gross employment income [T15/p214].

   3.6. On 5 May 2022, 19 May 2022, 13 July 2022, 28 July 2022, and 19 January 2023, the Agency issued notices to the Applicant that informed him of his obligation under section 68 of the Social Security (Administration) Act 1999 (Administration Act) to report his and Mrs Voloder's gross employment income in every fortnightly reporting period [ST3/pp18-30].

   3.7. At various times, Mrs Voloder has reported her employment income from Randstad Pty Ltd to the Agency online [T10/p198]. For example, in relation to the reporting period 28 July 2023 to 10 August 2023, Agency records show that Mrs Voloder reported her employment income online on 10 August 2023 as $1,313.25 [T15/p213]. For the period 7 August 2023 to 13 August 2023, Mrs Voloder reported employment income of $72.94 [T10/p198].

2. The Tribunal has considered the T and supplementary T-Documents, and the bundles of documents lodged by the Applicant dated 7 and 19 March; 12 and 29 April; 29 May; 12, 14, and 25 June; and 1 July of this year. The Tribunal has also considered the testimony of the Applicant, which included oral submissions made by him, and the written and oral submissions made on behalf of the Respondent. In particular, the Tribunal notes the helpful summary given on behalf of the Respondent in closing submissions, including a reference to A guide to Australian Government payments at ST6, pages 36 to 37.

1. The Applicant’s submissions are broad, but essentially he submits the calculation of his aged pension based on both the averaging of his wife’s income by Centrelink and his overseas pension to yearly amounts is incorrect, and that the calculations relied upon by the Respondent are incorrect. Further, the Applicant has made incidental references to the Robodebt class action and related matters. During the hearing, the Applicant attempted to lodge documents relating to a separate application before Member Burke of this Tribunal. The Tribunal did not accept those documents on the grounds of lack of relevance. 

1. The Tribunal, having considered the oral testimony of the Applicant and the documentary material before the Tribunal. On balance, the Tribunal gives greater weight to and finds in favour of the specifically calculated information which is set out in the detailed form of Annexure A to the Respondent’s SIFC examining the relevant period of 11 August to 24 August 2023. The Applicant’s testimony before the Tribunal has not satisfied it that the careful calculations set out in Annexure A, which properly reflect the method of calculation of aged pension in accordance with the relevant legislative provisions, should not be accepted.

1. The Tribunal has also given greater weight to documentary evidence before it, including, for example, T61 at pages 164 to 165, in deciding upon the correctness of the relevant calculations. The relevant legislative provisions are referred to in the Respondent’s SIFC, and the Tribunal adopts the helpful explanation of the relevant legislative provisions set out therein.

2. In summary, the rate of aged pension is worked out using pension rate calculator A pursuant to section 55 of the Social Security Act 1991 (Cth) (‘the Act’), which appears at the end of section 1064 of the Act. The rate is means-tested through income and assets tests for the reasons set out in the explanatory memorandum to the Social Security Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Companies – Integrity of Means Testing) Act 2000 (Cth). 

1. Module A of calculator A sets out the overall rate calculation process. The rate of pension is a daily rate, pursuant to section 1064 - A1 of the Act. The Tribunal notes that that rate is worked out by dividing the annual rate calculated according to calculator A, noting that fortnightly rates are provided for information only. The method statement is set out in paragraph 4.7 of the Respondent’s SIFC, and is accepted and adopted by the Tribunal as being correct. The Tribunal notes that module E of calculator A sets out the ordinary income test which calculates the effect of a person’s ordinary income on their maximum rate of payment; see section 1064 - A1.

10. The steps of the method statement are set out in paragraph 4.8 of the Respondent’s SIFC, and having considered them, the Tribunal is satisfied this is the correct approach. A person’s ordinary income-free area is calculated using table E1; see section 1064 - E1. The attribution of employment income paid in respect of a particular period or period is determined by section 1073A of the Act, and operates in the context of an ‘instalment period’ as defined by section 23 of the Act to mean a period that is determined under section 43 of the Social Security (Administration) Act (1999) (Cth), and pursuant to section 43(3):

the amount that is to be paid to a person as an instalment of social security periodic payment in relation to a period is the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day) payable to the person for days in that period on which the social security periodic payment was payable to the person. 

11. In addition to the careful and detailed calculation provided by the Respondent in Annexure A, the Applicant’s rate of aged pension is calculated in summary at 4.31 of the Respondent’s SIFC, and the Tribunal is satisfied on the material before it that this calculation is correct. Further, as submitted by the Respondent, the Tribunal finds that the Applicant’s rate of aged pension for the ‘instalment period’ of 11 August 2023 to 24 August 2023 is $146.21. The calculation of the Applicant’s rate of aged pension does not rely at all on any averaged employment income information from the Australian Taxation Office or any other source, but rather employment income as detailed in the Applicant’s wife’s actual pay records, which have been examined by this Tribunal. Further, the Tribunal notes that the Applicant’s combined ordinary income, including his wife’s gross employment income, was correctly worked out on a yearly basis when determining his fortnightly rate of aged pension pursuant to step 1 of the method statement of module E of section 1064 - E1 of the Act.

12.  The Tribunal agrees with the Respondent’s submission and finds that the Applicant was initially paid $166.15 of aged pension for the period 11 August 2023 to 24 August 2023 on the basis of his wife’s employment income incorrectly being recorded as $2,772.38 rather than $2,850.14. The Tribunal finds that this payment rate was not correct as it was based on a gross employment income figure which was lower that the Applicant’s wife’s actual employment income of $2852.14 for the relevant period, as set out in the related payslips.[1]

[1] See T6, pp 164-5.

13.  The Tribunal notes that the original decision was not varied to reflect the correct rate of aged pension payable to the Applicant for the period 11 August 2023 to 24 August 2023, being $146.21.

14.  In the circumstances, based upon these findings, the Tribunal orders that the decision under review be set aside on the basis that the Applicant’s rate of aged pension is to be paid at a reduced rate from 11 August 2023 and that the applicant’s actual entitlement to aged pension for the period 11 August 2023 to 24 August 2023 was $146.21. 

15. For completeness, the Tribunal finds, consistent with the Applicant’s own testimony during the hearing, that he has been happily married for 45 years and that he is not a member of an illness separated couple, and therefore is not entitled to any particular rate pursuant to subsection 4(7) of the Act. Again, for completeness, the Tribunal finds that the Applicant and his wife reside together in the same home, at the address specified in the Respondent’s SIFC, and that this is consistent with the Applicant’s own testimony during the hearing.

16. The Tribunal therefore finds that the Applicant is not a member of an illness separated couple under subsection 4(7) of the Act, and is to be paid at the partnered rate.

17.  The decision under review is set aside and substituted with a decision that the applicant’s rate of aged pension is to be paid at a reduced rate from 11 August 2023, and that his actual entitlement to aged pension for the period 11 August 2023 to 24 August 2023 is $146.21.