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

[2024] AATA 3206

Zuma and Secretary, Department of Social Services (Social services second review) [2024] AATA 3206 (21 June 2024)

Division:                  GENERAL DIVISION

File Number:            2023/7988

Re:  Mbongwa David Zuma

APPLICANT

And  Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Dr Stewart Fenwick, Senior Member

Date:  21 June 2024

Place:  Melbourne

The decision of the Social Services and Child Support Division dated 12 October 2023 is affirmed.

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

Dr Stewart Fenwick, Senior Member

Catchwords

SOCIAL SERVICES – qualification for age pension – income test – combined income exceeds threshold – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Services Australia, A Guide to Australian Government Payments (Module C) (1 January 2023 – 19 March 2023)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member 21 June 2024

BACKGROUND

1.Mr Zuma applied on 25 October 2023 for review of a decision of the Social Services and Child Support Division of the Tribunal, dated 12 October 2023 (AAT1). In its decision, AAT1 affirmed two prior decisions taken in the Respondent’s agency, Services Australia, to refuse to grant the Applicant the age pension.

2.Mr Zuma had previously applied for the grant of the age pension in February 2023. The Applicant is married and his wife was at all relevant times employed in the health sector. Mr Zuma himself has not been in the workforce for some years and has been experiencing health difficulties. Mr Zuma reached the age for this pension on 28 March 2023 and it was determined that the combined income of himself and his wife exceeded the threshold which was $3,544.00 per fortnight.

3.In its decision, AAT1 summarises evidence provided by the Applicant about his family circumstances [10], noting that he was drawing down upon superannuation to cover expenses and that he lives at home with his wife and two children who are university students. The reasons address here a query raised by the Applicant about the inclusion of his wife’s penalty rates in the assessment of income. AAT1 determined that the income test does not differentiate between pay rates [11] and that the combined income of Mr Zuma and his wife indeed ‘exceeded the income cut-off amount, which meant the rate of Mr Zuma’s age pension would be nil, so the age pension was not payable to him’ [12].

4.Mr Zuma represented himself at the Tribunal, and submitted a statement, dated 12 March 2024, together with a number of attachments largely illustrating his financial needs and his health circumstances.

5.The Respondent lodged a Statement of Facts, Issues and Circumstances (SFIC), dated 8 May 2024, documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T) and Supplementary T documents (ST).

LEGISLATION

6.Provisions concerning the age pension are found in Chapter 2, Part 2.2 of the Social Security Act 1991 (Cth) (the SS Act). Relevantly, the SS Act provides that the rate of an age pension is worked out using a specified rate calculator (s 55), and this benefit is not payable should the result of a calculation for a person be nil (s 44).

7.The rate calculator to be used is that in s 1064, being Pension Rate Calculator A, found in Chapter 3, Part 3.2 of the SS Act. This section provides that where two people are members of a couple, they will be treated as pooling their resources (s 1064-A2). The ordinary income of members of a couple is to be taken into account (s 1064-E2).

8.Ordinary income is defined in s 8 of the SS Act by reference to ‘income’ which is very broadly defined, and with very limited and specific exceptions. Further guidance on the ordinary income test is found in Chapter 3, Part 3.10 of the SS Act, and a person’s gross income is to be considered (s 1072).

9.A series of steps are followed as determined by the calculator and related modules specified in s 1064 of the SS Act to determine what rate of pension, if any, is payable to a person.

The result is that an income cut-off can be determined as a function of the provisions provided in the SS Act. This figure is conveniently presented in a document known as ‘A Guide to Australian Government Payments’. In this case the income test for pensions is found in Module C of this guide (T9, 130).

10.Under Schedule 2 to the Social Security (Administration) Act 1999 (Cth), where a person lodges a claim prior to the date they may become entitled, any entitlement can be considered within a period of 13 weeks from date of the claim. This is ordinarily referred to as the qualification period.

ISSUE

11.The sole issue for determination is whether Mr Zuma was eligible for the age pension, with reference in particular to the income test.

CONSIDERATION

12.At the hearing Mr Zuma spoke to the contents of his written submission from which I provide the following indicative summaries:

(a)documents attached to the submission demonstrate the ‘current setting’ of the Applicant’s well-being and ‘life is a precious gift from God, who give it freely and take it away and you cannot put a dollar value on life’;

(b)Mr Zuma has paid taxes throughout his working life and not to date received any welfare payments from the Australian Government and his ‘age pension application became common sense, truth and reality of life vs Australian Government laws & power’;

(c)the Australian Government has violated the Applicant’s human rights, has ‘failed me duty of care and basic of well-being’, and ‘do not care less about the cost-of-living vs standard of living and daily human basic needs’;

(d)Mr Zuma has undergone a range of medical appointments, was terminated from employment on grounds of medical incapacity, and sought to refinance his mortgage; and

(e)the Applicant ‘therefore request the Australian Government to pay me back all my income taxes with interest, I have paid over the years till to date so that I can take care of myself …’.

13.I note that the documents attached to this submission include among other items: bank statements indicating the repayment rates for a domestic mortgage and a residential investment loan; vehicle registration costs; a document confirming his termination from employment; and, a range of medical reports concerning various conditions.

14.I asked Mr Zuma at the hearing whether he understood the reason why his pension claim had been refused. He told me that he appreciated the relevant factors concerning income and the legislated tests. However, he stated his views about the unfairness of the situation given his financial constraints. I also understood Mr Zuma to be unhappy about being reliant upon his wife’s income.

15.The Respondent made submissions consistent with its SFIC. The submission summarises gross employment income reported for Mr Zuma’s wife for the period December 2022 to May 2023 [3.2] (T4). It also summarises additional reporting provided by her employer for the period December 2022 to July 2023 [3.12] (ST2). The Respondent notes that it has advised the Applicant about making an application for a Commonwealth Seniors Health Card [3.13].

16.The submissions state that the qualification period in Mr Zuma’s case is the period 8 February 2023 to 10 May 2023 [4.1]. The Respondent provides a detailed summary of the legislation and its interpretation in relevant authorities [4.2]-[4.20]. Relevantly, the method by which the Act establishes an income cut-off amount is described [4.19]-[4.20].

17.The Respondent contends in summary that [4.21]: Mr Zuma’s rate of pension was nil as the income of Mr Zuma’s wife (less laundry allowance) exceeded the ‘threshold’ of $3,544.00 in every fortnight from the Applicant’s birthday on 28 March 2023; the definition of income is couched in the widest of terms; and, the matters raised by the Applicant with respect to financial difficulties are not relevant to the assessment income under the income test.

18.The Respondent put no questions to Mr Zuma at the hearing. The discussion at the hearing proceeded on the basis that the Applicant understood the nature of the decision and had advanced, largely, an argument about the fairness of the welfare system more broadly.

19.I am satisfied, having considered the income figures noted in the Respondent’s submissions, that its primary contention that the income of the Applicant’s wife exceeds the specified income level is correct. I am also satisfied that the Guide establishes accurately that the relevant income test for the purposes of Mr Zuma’s matter is a combined income limit for a couple of $3,544.00.

20.I informed Mr Zuma that I was unable to offer him any wider relief than a reconsideration of the decision under review permitted. He indicated his desire to take this matter further, and therefore it was agreed that I would provide written reasons to assist Mr Zuma in advancing his concerns further.

DECISION

21.For the reasons given above, the Tribunal affirms the decision of the Social Services and Child Support Division dated 12 October 2023.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..............[SGD]..............

Associate

Dated: 21 June 2024

Dateof hearing: 5 June 2024

Solicitor for the Respondent:

Solicitors for the Respondent:

Mr James Henderson

Services Australia