Nethercote and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 100 (11 February 2010)

Last Updated: 11 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4147

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PEREGRINA NETHERCOTE

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr S Karas, AO, Senior Member

Date 11 February 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

................[Sgd]......................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Permissible cancellation of widow allowance – Appropriateness of the decision to reject a subsequent widow allowance claim – Qualification for the economic security strategy payment.

Social Security Act 1991 (Cth) ss 408CA, 408FA, 408BA, 900, 1068

Social Security (Administration) Act 1999 (Cth) ss23, 80

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and McCormick [2009] AATA 746

REASONS FOR DECISION

11 February 2010

Mr S Karas, AO, Senior Member

INTRODUCTION

1. Mrs Peregrina Nethercote (the applicant) had been in receipt of widow allowance for a number of years following the death of her husband in 1991. In a letter dated 7 November 2008, the applicant was advised by Centrelink that due to her earnings being above the allowable limit she would cease receiving the widow allowance from 8 November 2008. On 2 February 2009, the applicant lodged a claim for widow allowance. Based on the applicant’s recent involvement in the workforce, her application was refused by Centrelink on 10 February 2009. The applicant sought review of that decision and on 9 June 2009 an authorised review officer affirmed Centrelink’s earlier decision to refuse her application.
2. On 20 July 2009, the applicant applied for review of that decision to the Social Security Appeals Tribunal (SSAT). On 5 August 2009, the SSAT affirmed Centrelink’s decision to:
   • (a) cancel the applicant’s widow allowance from 8 November 2008;
   • (b) reject the applicant’s claim for widow allowance made on 2 February 2009; and
   • (c) not pay the applicant the economic security strategy payment.

On 3 September 2009, the applicant applied for review of the decision to the Administrative Appeals Tribunal (the Tribunal).

ISSUES AND LEGISLATION

3. The issues for determination by the Tribunal are:
   • whether the applicant’s widow allowance was correctly cancelled from 8 November 2008;
   • whether her claim for widow allowance lodged on 2 February 2009 should have been rejected;
   • whether the applicant was in receipt of widow allowance on 14 October 2008; and, if so,
   • whether she qualified for the economic security strategy payment (ESS).
4. The relevant legislation for this matter is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
5. A person receives a widow allowance if that person is entitled or qualified for it (see s 23 of the Administration Act). Section 408FA of the Act provides that a person’s widow allowance rate is to be worked out in accordance with the Benefit Rate Calculator B in s 1068 of the Act. Section 408CA of the Act provides that a widow allowance is not payable to a person if the person’s widow allowance rate would be nil. Section 408BA of the Act sets out how a person qualifies for widow allowance. Section 408BA(2)(c) of the Act provides that in order for a person to qualify for widow allowance, a person must show that they have “no recent workforce experience on the day when she makes her claim for the allowance”. The term “recent workforce experience” is defined in subsection 408BA(3) as:

employment of 20 hours or more a week for a total of 13 weeks or more at any time during the 12 months immediately before the day the woman lodged the claim for the allowance.

6. Subsection 80(1) of the Administration Act provides as follows:

(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
The Secretary is to determine that the payment is to be cancelled or suspended.

7. Section 900 of the Act stipulates the qualification criteria for the ESS payment and stipulates that a person is qualified for the ESS payment, if in respect of 14 October 2008 the person was receiving a specified payment, one of which is widow allowance (see s 900(2)(a)(vii) of the Act).

EVIDENCE

8. A hearing to review this matter was held on 2 February 2010. The applicant was unrepresented and appeared before the Tribunal to give evidence. Mr Guthrie appeared for the respondent.
9. The applicant questioned why her widow allowance was cancelled as she had worked casually over the years while receiving the allowance and always reported her income to Centrelink without issue. She stated she last worked at Queensland Apprenticeship Services from 4 August 2008 initially on a three month contract that was extended for a further three months until 29 January 2009. It was a full time job as she was employed for 37.5 hours per week. She was receiving her widow allowance and had told Centrelink about her job. She also heard of the economic security strategy payment and saw Centrelink about it but was told she was not eligible for that payment.
10. The applicant is a widow and lives alone. She confirmed that the information she provided to the authorised review officer and the SSAT were true and correct.
11. The applicant confirmed that folios 26 – 30 of the T documents were a correct record of her employment at Queensland Apprenticeship Services.
12. Mr Guthrie relied on the respondent’s statement of facts and contentions dated 15 January 2010. The applicant confirmed the particulars in folio 29 of the T documents and, that the date expressed on her application form for widow allowance at folio 53 of the T documents was 30 January 2009.
13. Mr Guthrie referred to the relevant legislation and argued that 1) the earlier decision be affirmed as the cancellation of the applicant’s widow allowance in these circumstances was correct according to the relevant legislation, and; 2) that she was not entitled to the ESS payment.

CONSIDERATION AND FINDINGS

14. The Tribunal finds that the applicant worked full time at Queensland Apprenticeship Services from 4 August 2008 until 29 January 2009. Her gross earnings during that time were $1,142.31 per fortnight. Pursuant to the relevant legislation, Centrelink suspended the applicant’s widow allowance from 16 August 2008 and subsequently cancelled it from 8 November 2008.
15. The Tribunal finds that widow allowance was not payable to the applicant due to her income from Queensland Apprenticeship Services exceeding the allowable limit.
16. On 2 February 2009, the applicant again applied for widow allowance. At the time of lodging this application she had “recent work experience” as defined in s 408BA(3) of the Act given her employment at Queensland Apprenticeship Services. Consequently, she did not qualify for widow allowance.
17. The applicant also claimed she was entitled to the ESS payment. However, to qualify for this payment pursuant to the legislation, the applicant must have received a widow allowance in respect of 14 October 2008 and, that payment must have been as a result of a claim made prior to 14 October 2008.
18. Based on the material and evidence before it, the Tribunal finds that the applicant did not receive a widow allowance payment in respect of the period 14 October 2008 and accordingly she is unable to qualify for the ESS payment pursuant to s 900 of the Act (see also Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635 and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and McCormick [2009] AATA 746).

DECISION

19. The Tribunal affirms the decision under review.
    

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ........................[Sgd]...................................................

Kate Slack, Research Associate

Date/s of Hearing 2 February 2010

Date of Decision 11 February 2010

Applicant was self represented

Solicitor for the Respondent Mr J Guthrie, Departmental Advocate