Taylor and Department of Family and Community Services [1999] AATA 93 (18 February 1999)

Last Updated: 25 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 93

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1053

GENERAL ADMINISTRATIVE DIVISION ) Q1998/1054

Re HAROLD ALAN TAYLOR

RITA MARIE TAYLOR

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 18 February 1999

Place Brisbane

Decision The Tribunal decides that the decisions under review are affirmed.

Decision No 93/1999 (Sgd) K L Beddoe

(Senior Member)

CATCHWORDS

SOCIAL SECURITY : Age Pension - eligibility - provisional commencement day - resident of Australia - whether in Australia

Social Security Act 1991 s 43(1), 46(1), 46(3), 1212(1),

REASONS FOR DECISION

18 February 1999 Mr K L Beddoe (Senior Member)

1. The applicants seek review of a decision of the respondent as affirmed by an Authorised Review Officer to reject their respective claims for age pension and partner allowance. In a decision dated 5 October 1998 a Social Security Appeals Tribunal decided to affirm the decisions under review. The initial claims were for payment of age pension to Mr Taylor and payment of partner allowance to Mrs Taylor. The payment of partner allowance to Mrs Taylor was for a short period until she also became eligible in age terms for the payment of the age pension. In essence the matter revolves around the eligibility of Mr Taylor for payment of age pension.

2. Section 43(1) of the Social Security Act 1991 ("the Act") provides that a person is qualified for an age pension if the person has reached pension age and the person has ten years qualifying Australian residence. That is the relevant provision as far as Mr Taylor is concerned and there is no dispute that he is eligible under that provision.

3. Section 46(1) has the effect of making a person's provisional commencement day as the day on which the person claims the age pension. However s 46(3) provides that if a person lodges a claim for an age pension and the person is not on the day on which the claim is lodged qualified for an age pension and the person becomes qualified for an age pension sometime during the period of three months which starts immediately after the date of the day on which the claim is lodged the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and is in Australia. It is the last part of this provision that has caused difficulty in this case the problem being that Mr Taylor was not in Australia on the first day on which he was qualified for the pension, that is, on his 65th birthday.

4. Section 1212(1) provides that a person may be granted a Social Security pension when the person is outside Australia if, immediately before the person left Australia the person was qualified for the pension and the person had lodged a claim for the pension. As it may now be apparent this section does not assist Mr Taylor because he had not qualified for the pension before he left Australia. Nor was Mrs Taylor in Australia.

5. At the hearing of this matter the applicants conducted their own case and Mrs Dwyer represented the respondent. Oral evidence was given by Mr and Mrs Taylor and certain documents were put into evidence and marked as exhibits. Short oral evidence was also given by Mrs Dwyer but nothing turns on her evidence. That evidence was given at the request of the applicants but as it transpired Mrs Dwyer had no knowledge which enabled her to answer the questions being asked by the applicant's.

6. I make the following findings of fact. In November 1997 the applicants decided to visit the United Kingdom, in particular to visit an ill relative. Arrangements were made for the travel and that travel was paid for in February 1998. At that time Mr Taylor was still in full time employment but he retired in July of 1998 just prior to his 65th birthday and, in fact, while he was absent from Australia on the overseas travel.

7. Mr and Mrs Taylor left Australia on 14 June 1998 and travelled overseas for some time returning to Australia on 20 September 1998.

8. There is no dispute that Mr and Mrs Taylor are residents of Australia and in compliance with other provisions of the Act would be entitled to payment of an age pension. The respondent does not dispute their eligibility for the claims made except in so far as they were not in Australia at the time they became eligible.

9. On 1 June 1998 the applicant's lodged their respective claims at the Centrelink Office, Stones Corner and they also lodged on that day a form entitled "Application to Continue Payment of Pension during an Absence Overseas". There is no dispute that the information provided by Mr and Mrs Taylor was accurate in all relevant respects and I am satisfied that they made a full and true disclosure of their affairs to the respondent and did not at any time seek to disguise or otherwise mislead the respondent in making its decisions under the Act. The application to continue payment of pension during an absence overseas makes it quite clear that the date of departure was 14 June 1998 and that they were travelling to England. It further makes clear that this was a temporary absence and that they planned to return to Australia on 19 September 1998.

10. Mr and Mrs Taylor were quite clear in their evidence and I accept it fully that they were advised by an officer of the respondent on or about 1 June 1998 that although they would not be paid pension while they were overseas their pension payments would be paid on their return with effect from the date of eligibility, that is, with effect from 24 July 1998 when Mr Taylor became 65 years of age and from 11 August 1998 when Mrs Taylor became 61 years of age. As I understand their evidence they were also assured that payment of partner allowance would be made in relation to Mrs Taylor for the period between 24 July 1998 and 11 August 1998. Everything before me is consistent with the evidence of Mr and Mrs Taylor and I accept that it is honestly and truthfully given and that they were in fact advised that there was a qualification on payment but that qualification was only that they would not be paid while they were overseas and a retrospective adjustment would be made when they returned to Australia. I am satisfied they were not told at this time of any qualification on eligibility which would disqualify them while they remained outside Australia.

11. On 3 June 1998 an officer phoned Mr and Mrs Taylor and advised that they would in fact not be paid for the period they were overseas because they were not in Australia on the date on which they otherwise became eligible for the payment of the pension benefits.

12. In this context it is necessary also to go back to an earlier date on which Mr and Mrs Taylor visited the Stones Corner office (13 May 1998) where they were given advice including advice that they should return to the Stones Corner office in June to lodge the claims.

13. The material before the Tribunal indicates that even on 3 June 1998 Mr and Mrs Taylor were in a position whereby they could change their air line bookings with Cathay Pacific, however their evidence was quite clear that they were unable at that stage to change bookings for their travel arrangements in Europe and they would have suffered a substantial financial loss by having to abandon those arrangements at that late stage. I am satisfied that although the airline bookings could be altered to delay the trip it was not feasible for Mr and Mrs Taylor to change the other travel arrangements for which they had already paid and which they would lose if unused at the appointed times. As a consequence of that situation Mr and Mrs Taylor, although advised on 3 June 1998 that they would not be eligible for the relevant pensions until they returned to Australia decided they had no option but to travel England as they had originally planned.

14. As indicated earlier there is no dispute that the eligibility for payment of the age pension had been complied with in all aspects except for the fact that Mr Taylor and Mrs Taylor were not in Australia on the date on which Mr Taylor turned 65 years of age nor were they in Australia on the date on which Mrs Taylor turned 61 years of age and it therefore follows in the submission of the respondent that because they were not in Australia they have not complied with all the requirements of subsection (3) of s 46 of the Act. Mr and Mrs Taylor did not really dispute this at all and conceded that having had the explanation of the law from the Social Security Appeals Tribunal they understood that their factual situation did not come within the eligibility terms of the legislation because of their absence from Australia on the date on which Mr Taylor turned 65 years of age.

15. It became clear that the applicant's had applied to this Tribunal in the hope that they may receive compensation for incorrect advice given by an officer of the respondent when they attended at the Stones Corner office on 13 May 1998. The applicants were apparently given advice on that day by an officer who he understood was a financial investment officer, but they are unable to positively identify the officer by name. I have no reason to doubt that Mr and Mrs Taylor received advice on that day which did not include advice that they would be ineligible for the payment of the claimed pensions until they returned to Australia. The whole context of the documents and the evidence of Mr and Mrs Taylor is only consistent with the situation that they seek to represent before the Tribunal and I am satisfied that there was a failure to give then appropriate advice on 13 May 1998 and that failure was repeated on 1 June 1998, but was corrected on 3 June 1998. The applicants placed before the Tribunal a schedule of their economic loss. I am not satisfied that the claim is a matter on which this Tribunal can consider. As to whether they should have compensation as to their loss due to incorrect advice is not a meter falling within the jurisdiction of this Tribunal. Nor am I satisfied that the list is a correct list of their actual losses as a consequence of being given the incorrect advice. However it is not necessary that I pursue that matter any further being satisfied that this Tribunal does not have any jurisdiction to consider the issue as to compensation for incorrect advice. That is a matter which the applicants will need to take up with the respondent and may also need to pursue with the Commonwealth Ombudsman. In that regard I note that they have already made representations to the Ombudsman.

16. For the reasons set out in paragraphs 1 - 14 the decisions under review will be affirmed.

I certify that this and the five (5) preceding pages are a true copy of the decision and reasons for decision herein of Mr K L Beddoe (Senior Member)

Signed: A Brown

Associate

Date/s of Hearing 22 January 1999

Date of Decision 18 February 1999

Applicants In person

Respondent Mrs Dwyer