Bevacqua and Department of Family and Community Services [2000] AATA 719 (18 August 2000)

Last Updated: 7 September 2000

DECISION AND REASONS FOR DECISION [2000] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/186

GENERAL ADMINISTRATIVE DIVISION )

Re SEBASTIANO BEVACQUA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 18 August 2000

Place Hobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Social Security - age pension - applicant overseas residence - no formal application made to Department.

Social Security Act 1991 - ss.48, 49,50

REASONS FOR DECISION

18 August 2000 Ms A F Cunningham (Part-time Member)

1. This is the review of a decision made by a Centrelink officer on 16 February 1999 to grant an age pension to the applicant but not before payday commencing 7 January 1999. The decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 30 September 1999.

2. The Tribunal was requested to determine the application on the basis of the written material before it, as the applicant currently resides in Italy and was unable to attend the Tribunal hearing.

3. The Tribunal had before it the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 which included a letter of appeal to this Tribunal dated 3 November 1999. The letter of appeal was signed by the applicant and the contents indicate that it was written by a person assisting the applicant.

4. The letter states that whilst the decision may appear to be correct, there was a crucial point that the SSAT had not taken into account "which is the basis of social relations and civic life: the proper information." It appears that the applicant's contention is that it was the respondent's responsibility to inform the applicant of his entitlement to an Australian age pension upon him reaching 65 years of age on 2 June 1999. It would appear that the applicant assumed that upon him reaching 65 years of age and becoming eligible for an Australian age pension that this would be paid to him even though he had not made a formal application

5. Included in the 'T' documents (T17) was the translation of a letter written by a Mr. Nino Riolo who said that he was a childhood friend of the applicant and was asked to write this letter on his behalf given the applicant's inability to read and write. He stated that the letter had been countersigned by the applicant after he had read the contents to him. The letter contained several references to contacts that the applicant had made with both the Italian and Australian authorities concerning his pension claim. Reference was also made to the Italian and Australian International Agreement and various correspondence between the applicant and these authorities. Unfortunately no copies of the documents were enclosed or have been produced to the Tribunal. It would appear that by virtue of the contacts and correspondence received by the applicant he was under the impression that all was in order for him to receive the Australian age pension upon him turning 65.

6. There is no suggestion however in the letter that at any time the applicant in fact lodged a claim for an Australian pension, nor is there any evidence to this effect.

7. The relevant provisions of the Social Security Act 1991 ("the Act") are those contained in ss.45, 46, 48, 49 and 50. These provisions make it clear that in order to paid an age pension an applicant must lodge a claim in accordance with the prescribed form. Section 48(1) provides as follows:-

"Subject to subsection (3), a person who wants to be granted an age pension must make a proper claim for that pension."

Section 49(1) states:

"To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary."

Section 50 states:

"(1) To be a proper claim, a claim must be lodged:

(a) at an office of the Department; or

(b) at a place approved for the purpose by the Secretary; or

(c) with a person approved for the purpose by the Secretary."

(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia."

Subsection (3) of s.50 provides that:

"The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement."

8. The applicant's difficulty in the present case is that he has failed to produce any evidence to the Tribunal to satisfy it that the required provisions as stated above have been complied with.

9. Whilst the applicant became entitled to be paid an age pension upon his turning 65 years of age, the above provisions make it clear that in order to paid an age pension he must make a proper claim in the prescribed form.

10. There being no evidence before the Tribunal that this was done prior to December 1998 when a proper claim was lodged, there is no provision in the legislation to pay the applicant his age pension prior to that date.

11. There is no provision in the relevant legislation that requires the respondent to inform the applicant of his entitlements to the Australian pension scheme as claimed by him in his letter of appeal to this Tribunal, and the Tribunal accordingly does not determine that any such obligation arose.

12. Whilst the Tribunal appreciates the applicant's understanding that upon lodging his claim for an Italian pension, the process for payment of his Australian pension would follow, there is no provision in the legislation for the exercise of discretion in these circumstances.

13. The Tribunal is obliged to apply the evidence before it in accordance with the provisions of the relevant legislation and accordingly finds that the applicant did not lodge a proper claim for a pension prior to 29 December 1998. Accordingly payment of his Australian age pension from 7 January 1999 being the first payday after the lodgment of his claim was the first payment of Australian age pension to which the applicant was entitled.

14. The Tribunal accordingly affirms the decision under review and dismisses the appeal.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Overseas Application - matter decided on the papers.

Date of Decision 18 August 2000