Jayasinge v Secretary, Department of Social Security [1998] FCA 624

FEDERAL COURT OF AUSTRALIA SOCIAL SECURITY ‑ Pharmaceutical allowance ‑ Quantum ‑ Reduction in amount ‑ Whether authorised. Social Security Act 1991, ss 1064, 1068. GRANVILLE IVOR JAYASINGE v SECRETARY, DEPARTMENT OF SOCIAL SECURITY VG 326 OF 1997

SUNDBERG J 9 JUNE 1998 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 326 of 1997

BETWEEN: GRANVILLE IVOR JAYASINGE

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 9 JUNE 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 326 of 1997

BETWEEN: GRANVILLE IVOR JAYASINGE

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE: SUNDBERG J

DATE: 9 JUNE 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT BACKGROUND Between 3 August 1993, the date on which he turned 60, and a date in late October/early November 1995 the applicant was paid a Pharmaceutical Allowance (the Allowance) under the Social Security Act 1991 (the Act) at the rate of $5.20 per fortnight. At the time he qualified for the Allowance he was being paid a Newstart Allowance (NSA). On 14 September 1995 he lodged a claim for a Mature Age Allowance (MAA). Upon becoming eligible for MAA in late October/early November 1995 he was paid the Allowance at the rate of $2.60 per fortnight. He complained about the "reduction" in the Allowance. The Social Security Appeals Tribunal (SSAT) affirmed the respondent's decision to pay the Allowance at the lower rate, and the Administrative Appeals Tribunal affirmed the SSAT's decision. The applicant appeals to this court under s 44 of the Administrative Appeals Tribunal Act 1975. The appeal is limited to questions of law. At the conclusion of argument I invited the respondent to file a memorandum setting out the legislative history of the Allowance provisions during the relevant period. This was done, a copy was provided to the applicant, and he filed a response. THE TRIBUNAL'S REASONS The Tribunal recorded the respondent's contention that payment of the Allowance at the higher rate while the applicant was receiving NSA was the result of a computer system fault, and that s 1064 of the Act only entitles MAA recipients who are "partnered" (as the applicant was at all material times) to an Allowance at the lower rate. The Tribunal noted that the Allowance for MAA recipients is calculated according to the Rate Calculator in s 1064. Under s 1064 Module C the amount payable to a person who is not a "member of a couple" is $5.20 per fortnight, and the amount payable to a person who is "partnered" is $2.60 per fortnight: s 1064‑C8. These rates had been increased with CPI increases, so that the partnered rate had become $2.70 per fortnight. The Tribunal concluded that since 25 October 1995 the applicant had correctly been paid at the lower rate of $2.60 and later $2.70. [The applicant contended that the date from which he had been paid at the lower rate was 2 November 1995 and not 25 October 1995. It was on 26 October that the Department wrote to the applicant informing him that MAA "starts from pension payday 2 November 1995". It is not clear whether this means that the entitlement to MAA would commence on that date, or that the first payment of MAA, in respect of an earlier period, would be made on that date. In my view nothing turns on whether the date is 25 October or 2 November or some other date between or around those dates. I will assume in the applicant's favour that the correct date is 2 November.] The Tribunal then dealt with the applicant's argument that there was no legislative warrant for the "reduction" of the Allowance. It rejected this argument on the ground that while he had been in receipt of NSA the applicant had never been entitled to the Allowance at the higher rate, and that he had received it because of a computer programming error. Section 1068‑D10, which governed the payment of the Allowance to NSA recipients at the relevant time, provided for payment to a partnered person of $2.60 per fortnight. The Tribunal concluded by saying that there was no provision in the Act which permitted a recipient to continue to receive payments once it was discovered that they had been made in error. It was satisfied that there was "no reason at law that the applicant's Pharmaceutical Allowance upon claiming MAA could not be reduced from $5.20 per fortnight to $2.60 per fortnight". THE NSA PERIOD When the applicant qualified for the Allowance in August 1993 he was in receipt of NSA. At that time s 1068‑D10 provided for the amount of the Allowance to be worked out in accordance with a Table pursuant to which a person who was not a "member of a couple" was entitled to $5.20 per fortnight and a person who was "partnered" was entitled to $2.60 per fortnight (ignoring CPI increases). The definitions in s 4 of the Act disclose that a person is "partnered" if a "member of a couple", and a person is a "member of a couple" if legally married. The applicant was legally married, and was thus a "member of a couple" and "partnered". He was therefore entitled to an Allowance at the lower rate. As from 19 September 1993 the Table was amended so that a person who was "partnered" but whose rate was "increased for a partner under Module C" was entitled to an Allowance at the rate of $5.20 per fortnight (ignoring CPI increases). See Social Security (Budget and Other Measures) Legislation Amendment Act 1993 Sch 7 cl 11. At that time Module C in s 1068 provided for an amount to be added to a person's maximum benefit rate if the person was a member of a couple and the person's partner was an Australian resident who was in Australia. An additional amount was not to be added if the partner was receiving a social security or service pension or a social security benefit. The applicant's wife was an Australian resident present in Australia and was not at the time receiving such a pension or benefit, and the applicant was thus entitled to an Allowance at the higher rate as from 19 September 1993. As from 20 September 1994 the Table was amended so that a person who was "partnered" was entitled to an Allowance at the rate of $2.60 per fortnight. See Social Security (Home Child Care and Partner Allowances) Legislation Amendment Act 1994 s 2(3) and Sch 2 cll 76 and 77. The definitions of "partnered" and "member of a couple" did not change during the NSA period. The applicant had thus been overpaid for the periods 3 August to 18 September 1993 and 20 September 1994 to 2 November 1995. THE MAA PERIOD As at 2 November 1995, the date on which the applicant became eligible for MAA, the amount of the Allowance was required to be determined in accordance with the Table in s 1064‑C8. A person who was not a "member of a couple" was entitled to $5.20 per fortnight and a person who was "partnered" was entitled to $2.60 per fortnight (ignoring CPI increases). The definitions of "partnered" and "member of a couple" had not changed, and thus the applicant was entitled to payment at the lower rate. CONCLUSION Because the applicant had been overpaid during the NSA period immediately preceding 2 November 1995, the payment of the Allowance at the rate of $2.60 per fortnight as from that date did not involve a reduction in the amount to which he was entitled under the Act. Although the Tribunal mistakenly said that the applicant was at no time entitled to receive $5.20 per fortnight, no relevant error of law on the Tribunal's part has been shown. Immediately before 2 November 1995, and as at that date, the applicant was entitled to an Allowance at the rate of $2.60 per fortnight. The application must be dismissed. The respondent did not seek costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg