Potonides and Secretary, Department of Family and Community Services [2002] AATA 279 (23 April 2002)

Last Updated: 23 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 279

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/140

GENERAL ADMINISTRATIVE DIVISION )

Re FEVOS COSTA POTONIDES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 23 April 2002

Place Hobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Social Security - age pension - family tax benefit - applicant and children residing overseas.

Social Security Act 1991 - ss21, 22

REASONS FOR DECISION

23 April 2002 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision made by a Centrelink officer on 3 August 2000 to cancel that part of his age pension which related to his dependent child. The decision was subsequently affirmed by the Social Security Appeals Tribunal on 22 May 2001.

2. As the applicant is a resident of Cyprus, being unable to attend a Tribunal hearing, the parties agreed for the Tribunal to decide the appeal on the basis of the written material before it. This included the T documents which were submitted pursuant to s.37 of Administrative Appeals Tribunal Act 1975 and correspondence received from the applicant dated 10 September 2001, 19 November 2001 and 15 January 2002.

3. The following facts appear from the material contained in the T documents and did not appear to be in issue:

(i) The applicant was in receipt of an invalid pension when he permanently left Australia in February 1988. At that time he was being paid an additional amount in respect of his dependent child, Costas, who was born on 29 October 1985.

(ii) In 1993, provisions concerning additional pension for children under the Social Security Act 1991 ("the Act") were repealed. The applicant however continued to receive payment of "dependent child ad-ons" by virtue of a "savings provisions" contained in changes to the Act on 1 January 1993.

(iii) As a result of further changes made to the Act on 1 July 2000, the additional payments made in respect of the applicant's child ceased.

4. In his correspondence to the Tribunal, the applicant complained that he had never received any benefit for his son Kyriakos who was born on 17 August 1988. He has asked the Tribunal to look at his case and ascertain why his invalid pension has been reduced.

5. The changes made to the Act on 1 July 2000 provided that pensioners residing outside of Australia could not rely on the "savings provisions" for payment of the "dependent child ad-ons".

6. The changes were made by the introduction of the "A New Tax System (Family Assistance) Act 1999 and "A New Tax System (Family Assistance) (Consequential and Related Measures) Act No. 2 1999" which repealed existing payments mechanisms and provided for 3 distinct payments.

7. This legislation now requires that for an individual to qualify for a family tax benefit, he must have at least one family tax benefit (FBT) child. The FBT child must under 18 years and in the care of that individual who is an Australian resident (s22).

8. Whilst the applicant maintains that he has two children under the age of 18 years, there is no evidence to suggest that the applicant "is temporarily absent from Australia for a period not exceeding 26 weeks" as required by the provisions of s21(1A).

9. On the basis of the above provisions and changes to the legislation effective from 1 July 2000, the applicant became ineligible for any additional pension in respect of his children.

10. As the legislation now provides that an additional allowance cannot be paid for a FTB child unless the child is physically present in Australia, the Tribunal must affirm the decision under review in accordance with the relevant legislation which means that no additional payments could be made to the applicant as from 1 July 2000.

I certify that the 10 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 23 April 2002