Fokas v The Department of Family & Community Services

REASONS FOR JUDGMENT Factual Background 1 The Applicant ("Mrs Fokas") was born in Greece on 12 December 1946, and arrived in Australia in November 1971. She is therefore presently 56 years of age. On 5 August 1979, a decree nisi for dissolution of her marriage became absolute, at which time she was 32 years of age with two young children. 2 On or about 13 November 2000, when she was 54 years of age, Mrs Fokas made claim under the Social Security Act 1991 (Cth) ("the Act") for a type of social security payment called a 'Widow Allowance' pension. As that claim progressed through the various review tribunals below, Mrs Fokas re-orientated her claim as one for an analogous social security pension, but with different eligibility criteria, known as the 'Widow B' pension. 3 The criteria for grant of a Widow Allowance is contained in s 408BA of the Act. In support of her original application for a Widow Allowance pension, Mrs Fokas stated that she assumed the status of a deserted wife after her husband had left her in 1979 with her two young children (born in 1973 and 1976 respectively). She also stated that she had been dependent on her husband before he had deserted her, and that by this time in November 2000, she no longer had the care, custody and control of her children. Section 408BA of the Act has at all material times stipulated as follows: "408BA(2) … a woman is qualified for widow allowance in respect of a period if: (a) she has turned 50; and (b) she was a member of a couple and since turning 40: … (iii) she divorced from her husband; …" 4 That claim for a Widow Allowance was rejected by the Department of Family and Community Services ("the Department"), primarily on the ground that Mrs Fokas had become widowed, divorced or separated prior to her attaining the age of 40 years. Subsequent to such refusal, Mrs Fokas requested a review of that Department decision, and on 14 December 2000, the original decision-maker confirmed the decision of 14 November 2000 to refuse the Widow's Allowance pension. 5 An Authorised Review Officer ("ARO") subsequently at Mrs Fokas' request reviewed the original decision made by the Department to refuse a Widow Allowance, and on 25 January 2001 conveyed its findings to Mrs Fokas by letter substantially to the following effect: · that Mrs Fokas had enquired about a Widow Allowance by telephone on 11 August 2000; · that she had lodged a claim for a Widow Allowance by means of a letter received by the Department on 13 November 2000; · that she was born on 12 December 1946; and · that she was divorced on 4 July 1979, and the decree nisi to her marriage became absolute on 6 August 1979, at a time when she was only 32 years of age, and would not turn 33 years of age until 12 December 1979. · Entitlement of woman to a Widow Allowance crystallised only if, having turned 50 years of age (which was by then the case), she had, since turning 40 years of age, divorced her husband (or since turning 40 years of age, her partner had died or she had separated from her partner). The ARO concluded that since Mrs Fokas had been 32 years of age when she had divorced her husband, she could not satisfy s 408BA(2)(b)(iii) of the Act in order to entitle her to a Widow Allowance. 6 In the course of the ARO's consideration of Mrs Fokas' application for a Widow Allowance, it appears that Mrs Fokas contended that she was alternatively qualified to receive a widow's pension in the form of a Widow B Pension, pursuant to Part 2.8 of the Act. By s 362 of the Act, it is provided, so far as potentially or possibly relevant, as follows: "362(1) A woman is qualified for a widow B pension if: (a) the woman: (i) was, immediately before 1 July 1987, receiving a widow's pension as a class B widow under the 1947 Act; or (ii) on 1 July 1987 had turned 45 years old and: (A) was receiving a supporting parent's benefit or a widow's pension as a class A widow on or after that day; or (B) was receiving a sole parent's pension after 1 March 1989; or (iii) on 1 July 1987 had turned 50 years old; and (b) the woman is not qualified for parenting payment; and (c) the woman: … (iii) is divorced from her husband; or … (d) the woman is not a member of another couple; and (e) either: (i) the woman had been an Australian resident for a continuous period of at least 5 years immediately before the day she lodged the claim for the widow B pension; or (ii) the woman has, at any time, been an Australian resident for a continuous period of at least 10 years; or (iii) the woman has a qualifying residence exemption for a widow B pension; or …" 7 By s 362A of the Act, it is provided, so far as is conceivably relevant, as follows: "362A(1) In spite of anything else in this Part, a widow B pension must not be granted to a woman unless: (a) the woman's claim for the pension is lodged before 20 March 1997; and (b) the woman is qualified for the pension before the day. (2) If subsection 366(2) applies to a woman, the woman is taken, for the purposes of subsection (1) of this section, to have lodged a claim on the day on which the initial claim was made." 8 However the ARO pointed out to Mrs Fokas that the Widow B pension was in the process of being phased out, and that new grants thereof had ceased from 20 March 1997, but that women who were presently receiving the Widow B pension were entitled to continue receiving that class of benefit until they assumed the age of qualification for the aged pension. The ARO concluded that Mrs Fokas did not qualify for a Widow B pension, since as at 1 July 1987, she was only 40 years of age, and had not in any event lodged a claim for a Widow B pension before 20 March 1997, at which time she was 50 years of age and would become 51 years of age on 12 December 1997. 9 On 8 February 2001, Mrs Fokas lodged an appeal to the Social Security Appeals Tribunal ("SSAT"), and that appeal was heard in Sydney on 15 March 2001. The SSAT recorded that Mrs Fokas did not dispute that she was not qualified for a Widow Allowance. Therefore , the primary issue dealt with in submissions by Ms Fokas to the SSAT related to the question whether Mrs Fokas was qualified for a Widow B Pension. 10 According to the SSAT, Mrs Fokas drew attention to the following matters: (i) In response to the ARO's indication that the Widow B Pension was being phased out, and that new grants had ceased from 20 March 1997, and that only women receiving the Widow B pension before that date can continue to receive that pension until they would be transferred to an age pension, Mrs Fokas drew attention to what was recorded in the Australian Social Security Guide as follows: "… this pension is being phased out over a 15 year period which commenced in 1981." meaning thereby, so she contended, that the Widow B pension had already commenced before she was 45 years of age; (ii) The said Guide references referred to by the ARO were not authorised official versions of the Act or regulations; (iii) The heading to s 362A of the Act, namely "Widow B pension not to be granted in certain cases", implied that the pension could be granted in some cases; (iv) A computer file note on her Centrelink file indicated that she wanted to apply for a Widow B Pension on the basis that she was a migrant, and that she did not understand that the application had to be lodged prior to 20 March 1997. In her initiating letter to Centrelink (an administrative arm of the Department), she had written, in part, as follows: "I no longer had the custody of the care and control of the children. I was 46 years of age. Therefore I was eligible for Widows B pension that I never received. What is it that your office can do now. I am a migrant and I could not understand much English then. I believe that other migrant women would be in the same situation." (v) She had never been informed that she was eligible for the Widow B Pension, and had been disadvantaged because of her inadequate understanding of the English language, and like other migrant women did not know about her eligibility; (vi) She had suffered considerable hardship since her arrival in Australia, and was prepared to work hard, and her preference was to be in employment, including unpaid community work; and (vii) She was entitled to rely upon s 59 of the Social Services Consolidation Act 1947 (Cth), which provided that a Class B Widow was defined in s 60(1)(b) as follows: "… a widow who does not have a dependent child and: (i) has attained the age of 50 years; or (ii) having been in receipt of a widow's pension as a widow referred to in paragraph (a), has, after attaining the age of 45 years, ceased to receive that pension by reason of the fact that she no longer has a dependent child…" The provision stated above was cited by the SSAT as it stood in 1985, following amendment by the Social Security and Repatriation Legislation Amendment Act 1985 (Cth), Schedule 4, being Act No. 95 of 1985. However, I observe that further amendment occurred to that section in 1987, to which I have referred at [16] below. 11 The SSAT accepted the decision of the ARO that because Mrs Fokas did not lodge a claim for a Widow B pension before 20 March 1997, she could not qualify for the same on the basis of s 362(1)(a) of the Act. However Mrs Fokas had argued that the effect of s 362(2) was that "despite the prohibition on new claims in section 362A(1), an earlier claim can be taken to have been for widow B pension". The SSAT recorded that subs 366(2) of the Act, albeit repealed by Act No. 192 of 1999, s 3, Schedule 1(43), had stated as follows: "366(2) If: (a) a woman makes a claim (in this subsection called the initial claim) for: (i) a social security or service pension, a social security benefit or a parenting allowance; or (ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a widow B pension; and (b) on the day on which the woman makes the initial claim, the woman is qualified for a widow B pension; and (c) the woman subsequently makes a claim for a widow B pension; and (d) the Secretary is satisfied that it is reasonable for this subsection to apply to the woman; the woman's provisional commencement day is the day on which the woman made the initial claim." 12 The SSAT responded to the effect that Mrs Fokas was unclear about the circumstances of the previous claim, which she regarded as a claim for a Widow B pension. It stated that on the basis of the evidence available to the Tribunal, the last claim made by Mrs Fokas, other than for a widow allowance in November 2000, was for a Newstart/Jobsearch or training allowance in 1995, and that there was no evidence that she subsequently lodged a claim for a Widow B Pension. 13 Moreover the SSAT pointed out that even if the 1995 claim could be regarded as similar in character to a claim for a Widow B pension, a claim which the SSAT did not resolve, and a subsequent claim had been made for a Widow B Pension, Mrs Fokas would still have had to satisfy the qualification for a Widow B Pension, being the qualification set out in s 362(1)(a) of the Act which I have already extracted in [6] above. 14 The SSAT explained Mrs Fokas' non-fulfilment of any such tests in the following detailed terms: "32. The part of the qualification provisions for widow B pension reproduced in this report (section 362(1)(a)) contains a threshold test which Mrs Fokas must satisfy before the remaining qualification provisions become relevant. Section 362(1)(a)(i) provides that to qualify for widow B pension Mrs Fokas must have been receiving a widow's pension as a class B widow under the 1947 Act, or she must satisfy either section 362(1)(a)(ii) or (iii). The basic qualification provisions for class B widow pension under the 1947 Act were expressed as follows: 60(1)(b) a widow who does not have a dependent child and - (i) has attained the age of 50 years; or (ii) having been in receipt of a widow's pension as a widow referred to in paragraph (a), has, after attaining the age of 45 years, ceased to receive that pension by reason of the fact that she no longer has a dependent child;… 33. There was no documentary evidence before the tribunal which demonstrated that immediately before 1 July 1987 Mrs Fokas was not receiving a class B widow pension. However, she had neither reached the age of 50 for the purpose of subsection (i) or the age of 45 for the purpose of subsection (ii). In July 1987 Mrs Fokas was aged 40. Therefore the tribunal was satisfied that Mrs Fokas was not receiving class B widow pension immediately before 1 July 1987, because she was not qualified for that payment. 34. Similarly, the tribunal was satisfied that Mrs Fokas does not satisfy subsections (ii) or (iii) of section 362(1)(a) of the Act because she had neither reached the age of 45 for the purpose of subsection (ii) or the age of 50 for the purpose of subsection (iii) in 1987. 35. Even if the tribunal's assumption that the earlier claim Mrs Fokas is relying on was not the claim made in 1995 (there was a claim for newstart in 1992 for example) she would still be caught by the same age related provisions by which she is now, and has always been, disqualified from receiving a widow B pension. Therefore the tribunal decided to agree with Centrelink's decision that Mrs Fokas is not qualified for a widow B pension." 15 The Decision of the Administrative Appeals Tribunal ("AAT"), pursuant to the application of Mrs Fokas for review of the Decision of the SSAT, was more lengthy in content, and was made on 12 December 2001. It recorded that Mrs Fokas stated at the hearing before the AAT that she accepted her ineligibility for a Widow Allowance, and that the issues before the AAT were first, whether or not Mrs Fokas' request for a stay of the SSAT's Decision should be granted, and whether or not Mrs Fokas was qualified to receive a Widow B Pension. The AAT acknowledged that the application required consideration of various provisions of the Social Services Consolidation Act 1947, as well as of the 1991 Act, and also of the Social Security (Administration) Act 1999 (Cth). 16 As to Mrs Fokas' purported reliance upon the 1947 Act, the AAT explained that the basic qualification provisions for a Class B Widow Pension were contained in s 60 thereof, which had undergone amendment on a number of occasions. In its latest form, as amended by Act No. 88 of 1987, there was contained within s 60 of the 1947 Act the following paragraph (b) of sub-section (1) reading (relevantly) as follows: "(b) a widow who does not have a dependent child and who: (i) immediately before 1 July 1987 was in receipt of a widow's pension and is a former class B widow; (ii) on 1 July 1987 had attained the age of 45 years and was in receipt of supporting parent's benefit or a widow's pension as a class A widow on that day or commences to receive such a benefit or pension after that day; or (iii) on 1 July 1987, had attained the age of 50 years; or …" 17 The AAT presented the background facts in careful detail, most of which I have earlier recorded. However I should set out part of the content of her letter of 13 November 2000 to the Department, which, after mentioning that she was dependent on her husband before he deserted her, and that she no longer had the custody, care and control of her children when she was 46 years of age, proceeded as follows: "… I am a migrant, I could not understand much English then. I believe that other migrant women be in the same situation. As I have been in stress and started having difficulty with my health, I contact (sic) the Centrelink over the phone asking if I was eligible for Widow's Pension. I did not know anything then. I was told over the phone that Centrelink will contact me. An appointment was made. I was told that I am not qualified for Widow Allowance, (I did not ask for Widow Allowance), and I was refused to be given any form. On my persistence I was given the form for Widow Allowance. Since then I did some research that led me in discovering of the earlier mentioned [Widow B]…" 18 The AAT recorded at some length the numerous statements and submissions Mrs Fokas made in the course of her application for review of the SSAT decision. It is apparent that since her arrival in Australia, her life has been characterised by emotional stress and hard menial work undertaken both before and after her husband's desertion of her. She appears to have reared her children in difficult financial circumstances. It is unclear as to the extent she has received social security assistance, apart from a Sole Parent Pension from 1 March 1989 to 15 August 1992, and in more recent times a form of unemployment benefit. Her husband returned to Greece after deserting his family, and apparently provided no, or no adequate, financial support for her. To add to her personal hardships, she has suffered and continues to suffer from an asthmatic condition. She told the AAT she now felt old and tired, and hence the status of widow was more appropriate to her by way of social security assistance. She insisted that she was not sick and disabled, and would not accept sickness benefits. Nor did she want to receive (or continue to receive) unemployment benefits, because of the stigma of being a "bludger". Her claim for a Widow B pension reflected her perception of personal dignity. 19 One central theme which Mrs Fokas conveyed to the Tribunal was to the effect that had she known earlier of the Widow B Pension, she would have applied for the same before it was said to her to be too late, and that she originally applied for the Widow Allowance, because that course reflected the form provided to her by the Department, an officer of the Department being said to have refused to give her a Widow B form to complete. The AAT additionally recorded that she did not want to obtain or remain on Newstart Allowance because of the stigma attached to being unemployed, and because it was a form of harassment for a woman of her age and of her life's experience to be required to lodge quarterly forms for that benefit. 20 It is readily apparent from my reading of the lengthy AAT decision that Mrs Fokas made confusingly complex submissions to the AAT concerning her claimed entitlement to a Widow B Pension, being submissions which extended throughout the sixteen paragraphs of the AAT Decision numbered 30 to 46. The Department's representatives sought to grapple with and respond to the same, as recorded throughout the ensuing fourteen paragraphs numbered 47 to 61 of the decision. It is not expedient or appropriate to unravel and rationalise the complexity of those respective submissions, at least most of which made by Mrs Fokas were inherently incapable of leading anywhere in the direction of an entitlement of Mrs Fokas to a Widow B Pension. The appropriate course is for me to move forthwith to the reasons provided by the AAT for its Decision, since the task of the Court is to determine whether those reasons of the AAT reflect any error of law. 21 The AAT's reasons focused upon 13 November 2000, being the date when, as indicated in [2] above, Mrs Fokas applied originally for a Widow Allowance Pension. As at that date, the qualification for a Widow B Pension was governed by s 362 of the Act, the potentially relevant parts of which I have extracted in [6] above. The provisions of s 362(1)(a) provided for qualification in respect of a Widow B Pension in a number of ways, including the case where a woman was, immediately before 1 July 1987, receiving a Widow's Pension as a Class B widow under the 1947 Act, or where a woman had turned 45 years of age by 1 July 1987. Immediately before 1 July 1987, Mrs Fokas was not receiving a Widow's Pension as a Class B widow under the 1947 Act, and there was nothing Mrs Fokas could effectively do to eliminate the fact that before 1987, she was not receiving a Class B Widow's Pension. At that time, she still had the care, control and custody of at least one of her children, and indeed that situation continued until 1992. Moreover by 1 July 1987, Mrs Fokas had not turned 45 years old. Moreover as at 13 November 2000, so the AAT inevitably concluded, Mrs Fokas did not meet the requirements of s 362(1)(a)(iii) of the Act, because on 1 July 1987, she had not turned 50 years of age. 22 The AAT then addressed subs 362A(1) of the Act, which has been extracted in [7] above, and which stipulates that a Widow B Pension may not be granted unless a woman had lodged her claim for that pension before 20 March 1997, which Mrs Fokas did not do. 23 In an endeavour to assist Mrs Fokas in her quest for a Widow B Pension, it was recorded by the AAT that attempts had been made by the Department to ascertain whether or not her previous claims from 1992 through to 1995 for Jobsearch Allowance, Austudy and Sickness Allowance might be considered as claims for the Widow B Pension, within the scope of subss 362A(2) and 366(2) of the Act (albeit that the AAT observed that s 366(2) was repealed by Act No. 192 of 1999 and replaced in substance by s 15 of the Social Security Administration Act 1999 (Cth)), but those attempts apparently proved to be unfruitful. The AAT also attempted to explore Mrs Fokas' possible qualification for a Widow B Pension at an earlier point in time to her application. The AAT assumed the task of testing every option or avenue in terms of attempting to reach a favourable determination as to Mrs Fokas' qualification for the Widow B Pension. In the result, the AAT was able to express its satisfaction that all options had been explored in relation to any possible qualification that Mrs Fokas might have for the Widow B Pension. As the AAT rightly said, the legislation is complex, and there had been changes thereto over time, but the legislative amendments potentially applicable to Mrs Fokas' circumstances had not operated to exclude her from the restrictive requirements of the legislative provisions applying at the time of her claim on 13 November 2000, namely those contained in ss 362A and 362 of the Act. 24 The hearing of the present applicant for review to the Court extended over two afternoon hearings, each of which was almost wholly taken up with Mrs Fokas' oral submissions. I did not find it necessary to call on the Respondent to reply. Both before and during the hearing of the application, Mrs Fokas provided lengthy written submissions, which she asserted continuously but erroneously to engage errors of law on the part of the AAT. Mrs Fokas is not of course legally qualified, and understandably had no real appreciation of the nature and extent of the task she was endeavouring to undertake. Her submissions to the Court have plainly failed to make good her application for review of the AAT decision, and must inevitably be dismissed. In particular, the notion she pursued as to having an accrued entitlement, in the absence of not having actually lodged a timely claim for a Widow B Pension, cannot be sustained in the face of the clear legislative intention to phase out future qualification for the Widow B Pension. 25 Nevertheless as I indicated at the time of delivering an ex tempore judgment on 19 April 2002, for reasons which will have been implicit from my earlier account of Mrs Fokas' life in Australia, she has been subjected to strained personal circumstances to the point where she is now 56 years of age, and rather obviously in need of social security broadly of the designation she persists in demanding. Despite her obstinacy in continuously pressing for that particular classification of pension which is clearly unavailable to her particular circumstances, namely of course the Widow B Pension, I am constrained to record that Mrs Fokas struck me as a decent, proud and honourable woman, being an observation which has been implicitly reflected by the remarkable extent of consideration and assistance given to her by the Department, the SSAT and the AAT, albeit consideration and assistance thus far ignored or rejected by Mrs Fokas. Perhaps there may still exist some avenue of social security which can satisfy a measure of the status and security which she has pursued by this protracted litigation. 26 At the commencement of the proceedings, I explained to Mrs Fokas that an unsuccessful outcome to her present application for review to the Federal Court would expose her to an adverse order as to costs. Whilst appreciating that she probably does not have the financial means to satisfy any such order, I am unable to see any justifiable basis for me to withhold from making the same, if pressed by the Department to that end. I invite submissions in writing to my Associate within twenty-one days, but the same must be confined to the matter of costs of the present proceedings. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.