Gallifuoco and Department of Family and Community Services [2000] AATA 778 (4 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 778

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/07

GENERAL ADMINISTRATIVE DIVISION )

Re ANNAMARIA GALLIFUOCO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 4 September 2000

Place Hobart

Decision The decision under review is affirmed.

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Part-Time Member

CATCHWORDS

Social Security - overseas wife pension - Australian working life residence - rate proportionalised.

REASONS FOR DECISION

4 September 2000 Ms A F Cunningham (part-time Member)

1. The applicant has sought the review of a decision made by a Centrelink officer on 15 December 1998 to reduce her rate of wife pension proportionally to her working life residence. An authorised review officer affirmed the decision on 9 July 1999, as did the Social Security Appeals Tribunal (SSAT) on 15 November 1999.

2. The Tribunal decided to determine the application on the basis of the written material before it which comprised the 'T' documents submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975. The applicant resides in Italy and was unable to attend the hearing in person.

3. In a letter from the applicant addressed to the District Registrar received on 10 May 2000, the applicant requested that the Tribunal "look further into certain legislation which may have been passed over, so that my rights can be fully fulfilled."

4. The applicant's wife pension was reduced following her absence from Australia for a continuous period of 12 months. The provisions of s.1216 of the Social Security Act 1991 ("the Act") provide that a woman becomes disqualified for a wife pension if she has been outside Australia continuously for a period of 12 months.

5. The history of the appeal which is set out in the decision of the SSAT and largely supported by the material contained in the 'T' documents does not appear to be in dispute. The 'T' documents reveal that the applicant came to Australia with her husband on 14 June 1993. The applicant made a claim for a wife pension when her husband applied for a disability support pension on 14 January 1994. Following an appeal to this Tribunal both the applicant and her husband were granted disability support pensions backdated to 27 January 1994. After a number of return visits to Italy the applicant and her husband left Australia permanently on 15 December 1997.

6. As the applicant had not been an Australian resident for at least 10 years she did not qualify "as an entitled person" pursuant to the provisions of s.1216B of the Act which would exempt her from disqualification under s.1216. Nor does the applicant qualify under the provisions of s.1221 which requires that the applicant be "an entitled person" in accordance with sub-section 1216B(2).

7. The provisions of s.1220B for the rate of pensions paid outside Australia do not apply to a person qualified to receive a pension pursuant to s.1210 which prescribes the rate of pension payable under a Scheduled International Social Security Agreement. As the applicant resides in a country with whom Australia has a cost sharing social security agreement, the applicant's pension can continue to be paid pursuant to the provisions of the agreement between Australia and the Republic of Italy. The terms of the agreement are contained in Schedule 3 of the Act. Article 8 of the agreement states that where an Australian benefit is payable by virtue of this agreement to a person who is outside Australia the rate of that benefit is determined in accordance with a specified formula as set out in paragraph 1 of that Article. The formula prescribes that the rate of benefit payable is determined by reference to the applicant's period of Australian residence during the working life by that person. The provisions of s.1210 of the Act state that the rate of a social security payment is to be worked out in accordance with the International Agreement portability rate calculator at the end of the section. That rate is contained in s.1210-A1. Section 1210-B1 prescribes how a person's Australian working life residence is determined. Sub-section B5 states that where the person's partner is receiving an age or disability support pension the applicant's period of Australian working life residence is to be equal to the partner's period of Australian working life residence if that is greater than the applicant's period of working life residence.

8. There has been a previous determination of the applicant's partner's working life residence of 59 months. In accordance with the prescribed formula the amount of wife pension therefore payable to the applicant is at the proportional rate of 59/300^th of the full rate of the Australian benefit.

9. As found by the SSAT there are no provisions within the Act or the International Agreement that allow the Tribunal to depart from the legislative provisions referred to above to take account of an individual's particular circumstances.

10. The decision of the SSAT on 18 May 1998 to set aside the earlier decision reducing the applicant's husband's disability support pension on the basis of his working life residence was made in accordance with the legislative provisions within the Act, namely a determination that s.1220B did not apply to his circumstances. That provision has no relevance to the current proceedings.

11. This Tribunal has carefully reviewed the legislative provisions relevant to the applicant's circumstances and determines that the original decision to reduce the applicant's rate of wife pension proportionally to her accepted working life residence of 59 months was correct.

12. Accordingly the Tribunal affirms the decision under review and dismisses the appeal.

I certify that the 12 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 4 September 2000