Angel and Department of Family and Community Services - [2001] AATA 292

DECISION AND REASONS FOR DECISION [2001] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/882

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Miro Angel
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date11 April 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefore, the Tribunal decides that Mr Angel was eligible for payment of the Age Pension at the single rate from 6 October 1998. The matter is remitted to the Respondent for determination of the quantum of arrears.
  ...................[sgnd]....................
  Ms SM Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY - Age Pension - Arrears - Single Rate - Request For Review

Social Security Act 1991 (Cth), ss 4, 71, 76, 80, 1239, 1240

Re Frost and Secretary, Department of Social Security (1995) AAT 10360, 17 August 1995
Re Secretary, Department of Social Security and Mangano (1997) 2(11) SSR 156
Re Secretary, Department of Social Security and Trevisan (1990) 22 ALD 537
Re Eatt and Secretary, Department of Social Security (1992) 28 ALD 268
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Re Marsh and Secretary, Department of Social Security (1996) 42 ALD 639

REASONS FOR DECISION

11 April 2001 Ms SM Bullock Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Miro Angel of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 27 April 2000, that Mr Angel could not be paid arrears of Age Pension at the single rate earlier than 5 March 1999 (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Secretary, Department of Family and Community Services ("the Department") made on 16 March 2000 (T51). The ARO varied the original decision of a delegate of the Department made on 8 December 1999, that Mr Angel was not eligible to receive Age Pension at the single rate from 28 January 1998. The ARO determined that arrears of Age Pension at the single rate could be paid from a date of 5 March 1999, the date when Mr Angel had enquires made of the Department through his Local Member of Parliament as to the correct rate of his Age Pension.
A hearing was held before the Tribunal in Sydney on 15 January 2001. Mr Angel was represented by Ms S Clark, a Solicitor with the Welfare Rights Centre, Sydney. The Respondent, the Secretary, Department of Family and Community Services was represented by Ms M Buckley, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T Documents", T1-T55) and the following exhibits:
Exhibit Number     Description Date
T1-T55           T Documents Various
A1      Applicant's Statement of Facts and Contentions          30 November 2000
A2      Customer Record Access Monitor Report          From 1 August 1998 – 31 October 1998
A3      Customer Record Access Monitor Report          From 1 February 1999 – 20 February 1999
A4      Letter to Mr Angel from Centrelink          1 March 1999
A5      Letter to Mr Angel from Centrelink          5 March 1999
A6      Letter to Mr Angel from Centrelink, including additional handwritten notes 28 May 1998
R1      Respondent's Statement of Facts and Contentions     3 October 2000
R2      Statement of Ms J McIntosh, Officer, Call Centre Coffs Harbour, Centrelink          12 January 2001
R3      Registration form for Pension Bonus Scheme   Lodged 9 December 1998
R4      Accommodation computer screen print-outs     20 November 2000
R5      Payment Summary computer Print-out    12 January 2001

Issues

The issue to be determined in this matter is whether or not the single rate of Age Pension can be paid to Mr Angel from a date prior to 5 March 1999.
Legislation
A determination in this matter requires consideration of the provisions of the Social Security Act 1991 (Cth) ("the Act").
Section 4 of the Act deals with family relationships definitions – couples. As relevant, subsections 4(2) and (3) provide:
"Member of a couple—general
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b)      all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii)      the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
* an ancestor of the person; or
* a descendant of the person; or
* a brother or sister of the person (whether of the whole blood or the part-blood).
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)        the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b)      the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii)      the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c)      the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d)      any sexual relationship between the people;
(e)      the nature of the people's commitment to each other, including:
(i)       the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.
…"
Division 8 of Part 2.2 of the Act deals with continuation, variation and determination of Age Pensions. Of specific relevance to this matter is subsection 71(2) which as relevant at the time stated:
"Rate determination
71(2) A determination of the rate of an age pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 73A or 74; or
(b) a further determination in relation to the pension under section 76 or 77 has taken effect.
Note: for paragraph (b) see also section 78B.
…"

Section 76 of the Act provided at the relevant time:
"Rate increase determination
If the Secretary is satisfied that the rate at which an age pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 80."

Section 80 of the Act deals with the date of effect of a favourable determination. Subsections 80(1), (2), (3), (4) and (5) are relevant and state:
"Date of effect of favourable determination
80(1)The day on which a determination under section 76 or 79 (in this section called the favourable determination) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
80(2) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a person's age pension; and
(b) a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
80(3) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a person's age pension; and
(b) a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
80(4) If:
(a) a decision (in this subsection called the previous decision) is made in relation to a person's age pension; and
(b) no notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
80(5)Subject to subsections (5A) and (5B), if the favourable determination is made following a person having advised the Department of a change in circumstances, the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
..."

Subsection 1239 (1) of the Act at the relevant time stated:
"Secretary may review decisions
1239(1) The Secretary may review:
(a) a decision of an officer under this Act; or
…
if satisfied that there is sufficient reason to review the decision.
…"

Section 1240 of the Act deals with applications for review and as relevant at the time subsection 1240(1) stated:
"Application for review
1240(1) Subject to subsections (1AA), (1B) and (2), a person affected by:
(a) a decision of an officer under this Act; or
…
may apply to the Secretary for review of the decision.
…"

Background

The following is provided by way of background and the information contained within is not disputed.

Mr Angel was born on 10 March 1931 in Yugoslavia and married in Wellington, New Zealand on 15 March 1959 (T3, p12).
By Deed of 12 February 1974, Mr Angel renounced and abandoned the use of his former Christian and Surnames of "Miroslav Angelkovic" and assumed the name of "Miro Angel" (T30, p65). On the same date, by Deed, Mr Angel's wife renounced the surname of "Angelkovic" and assumed the new surname of "Angel" (T30, p66).
On 28 February 1996, Mr Angel lodged a claim for Age Pension (T3) which was subsequently granted, commencing on 21 March 1996 at the married rate of $190.20 per fortnight (T6).
Mr Angel separated from his wife on 28 January 1998 (T30, p63) and claimed to have continued to live separated under the same roof from that date.
On 9 December 1998, Mrs Euphemia Angel lodged a "Registration for Pension Bonus Scheme" form (Exhibit R3), reporting that her partner was Mr Miro Angel.
On 5 March 1999, a staff member from the office of Mr Angel's Federal Member of Parliament, the Hon J Howard, Prime Minister, contacted Centrelink to inquire about the correct rate of Mr Angel's Age Pension.
On 12 April 1999, Mr Angel advised Centrelink that he had been separated from his wife for some time and had filed for divorce (T27). He was advised by a Departmental officer to complete forms for the "Assessment of separated under one roof". Mr Angel advised that Mrs Angel refused to complete these forms.
On 21 May 1999, a divorce Application was heard by the Family Court of Australia ("The Family Court"). The Divorce Application was not granted because of there being "Insufficient evidence of separation under one roof (Question 13)" (T29). The Family Court directed that Mr Angel must provide evidence concerning the breakdown of the marriage including when the marriage was over and the arrangements he and Mrs Angel had whilst living under the one roof.
On 18 June 1999, the Family Court heard Mr Angel's application for dissolution of the marriage between himself and Mrs Angel and the Court decreed that Mr and Mrs Angel's marriage be dissolved. The decree nisi was issued on 18 June 1999 and became absolute on 19 July 1999 (T31, p67).
On 23 August 1999, the rate of Mr Angel's Pension was adjusted to the single rate, effective from 18 June 1999 (T28, T33) for the period 24 June 1999 to 17 August 1999, following Mr Angel's providing documents on 18 June 1999, recording the dissolution of his marriage and the change of his status.
On 14 December 1999, Mr Angel wrote to Mrs O Renner at Centrelink noting that he had advised Centrelink officers of his marital separation on several occasions including in 1998; on 3 June 1998 at 3.45 pm when he spoke to "Jenny"; in late August or September 1998 when discussing his rent increase; late February 1999 at 6.00 pm and later in 1999 (T32).
An internal review of Mr Angel's dissatisfaction with the Department's decision about the commencement of the single rate of Age Pension was conducted by a Departmental delegate and on 15 December 1999, the decision to pay single rate of Age Pension from 24 June 1999 was affirmed (T33).
Mr Angel's letter to Centrelink of 24 December 1999 was treated as a request for review by an ARO (T35). The ARO requested further information, including a "review of separation under one roof" form (T40).
On 5 February 2000, a determination was made by a Departmental delegate that Mr Angel was not currently a member of a couple, but the delegate was unable to decide whether a separation had occurred from 28 January 1998 (T41, p98).
Mr Angel further requested an ARO review on 22 February 2000 and on 16 March 2000, an ARO wrote to Mr Angel that the single rate of Age Pension was payable to Mr Angel from an earlier date of 5 March 1999, which was the date that Mr Angel's Federal Member of Parliament's Office made contact concerning Mr Angel's rate of Age Pension. This contact was considered to be the first request for review of the rate of payment of the Age Pension on the basis of Mr Angel's changed marital status (T51). The ARO noted that by Departmental letter of 28 May 1998, Mr Angel had been informed of the decision to reduce his rate of Age Pension because of a change in the combined income of his partner and himself. The ARO further noted that there was no record of Mr Angel requesting a review of this decision until the enquiry made by his Local Member of Parliament's Office.
On 29 March 2000, Mr Angel appealed to the SSAT and on 27 April 2000, the SSAT affirmed the decision of the ARO not to pay arrears of Age Pension at the single rate before 5 March 1999 (T2).
On 9 June 2000, Mr Angel lodged an application for review to the Tribunal (T1).

Evidence of Mr Angel

Mr Angel stated that at the time of claiming Age Pension in February 1996 at the Ryde Departmental Office, he was having marital problems but was still married. Mr Angel stated that he did ask at the time of claiming or soon after, about receiving the single rate of Age Pension in light of his marital difficulties, and was told by a Departmental officer that unless he was legally separated and divorced, he was not eligible for payment of the Age Pension at the single rate. Mr Angel further stated that it was not explained to him what was meant by the term "legally separated". Mr Angel explained to the Tribunal that he believed that a legal separation meant a separation order made by the Family Court authorities.
Mr Angel informed the Tribunal that he subsequently attended the Ryde Departmental Office on several occasions receiving similar advice. On 28 January 1998, Mr Angel considered himself separated from his wife following a heated argument about money. Mr Angel stated that Mrs Angel was extremely angry and did not agree with this decision to separate. She was further concerned at the cost of divorce proceedings and did not want "expensive lawyers" involved. Mr Angel told the Tribunal that he stated to his wife at the time that he would arrange the divorce himself. Mr Angel told his wife, "from today I leave you – you go your way and I will go mine".
Mr Angel attended the New South Wales Legal Aid Commission's Sydney Office and received advice about how to obtain a divorce. He was told that he was required to be separated from his wife for twelve months before a divorce could be granted. Mr Angel was unable to inform the Tribunal when precisely he visited the Legal Aid Commission Office. In addition to obtaining advice, Mr Angel was provided with a brochure about divorce and was told there were information sessions about divorce proceedings. At the time of this separation in January 1998, Mr Angel had no other accommodation and had tightened financial circumstances. In such a situation, Mr Angel remained separated from his wife while still living in the same home.
In relation to divorce proceedings, Mr Angel stated that he made an application to the Family Court for divorce on 7 April 1999, but on 24 May 1999, he was advised by the Registrar of the Family Court that there was insufficient proof of separation (T29). By this stage, Mr Angel had approached a number legal firms about obtaining legal assistance for divorce proceedings, but found that it was impossible to afford the associated legal fees.
Following receipt of a letter dated 22 May 1998 from Mr M Bishop, Departmental delegate (T11), Mr Angel attended an interview with Mr Bishop on 28 May 1998 and took with him the documentary material requested. Mrs Angel did not attend this interview although Mr Bishop had requested in his letter that she should attend. Mr Angel's evidence to the Tribunal was that Mrs Bishop was unable to attend that interview as she was working. Mr Angel told the Tribunal that he did not talk to Mr Bishop at interview about his marital situation. He did not consider that it was appropriate to discuss his marital circumstances and further, Mr Angel was not asked about this. Mr Angel explained to the Tribunal that he was asked certain questions by Mr Bishop which he answered. He also agreed that he provided to Mr Bishop copies of relevant documents outlining Mrs Angel's financial situation, including pay slips and the like. Mr Angel agreed in questioning that at the time he saw Mr Bishop, he had taken steps to secure a divorce. He confirmed that the Legal Aid Office had not provided any advice that he should inform Centrelink of the divorce proceedings. Mr Angel explained to the Tribunal that he did not think that he was "legally separated" from his wife at that time, though he was separated in the practical sense while still living under the same roof.

In relation to the domestic situation following Mr Angel's separation from his wife in January 1998, Mr Angel stated that he and Mrs Angel had an understanding about the payment of bills and rent. Having agreed with Mr Bishop that Mr Angel's Age Pension should be paid into Mrs Angel's cheque account, the arrangements were then that Mrs Angel would take money from the account to cover Mr Angel's contribution to rent and other household expenses. Mr Angel stated that he trusted his wife with this arrangement. Mrs Angel would then provide him with the balance of his Age Pension following his meeting household and other financial commitments. Mr Angel estimated that he was receiving approximately $201.00 per fortnight from social security payments, from which he was left with approximately $41.00.
Following Mr Angel's interview with Mr Bishop on 28 may 1998, he received a letter of the same date informing him of a reduction in his Age Pension (T14, Exhibit A6). Having received this letter, on 3 June 1998 Mr Angel telephoned the Department and spoke to a female officer whose name is "Jenny". Mr Angel told the Tribunal that he wanted to explain to this Departmental officer that he was separated from his wife under the same roof and he was not in receipt of any financial support from her. The reduction in pension by $5.00 meant a great deal to Mr Angel in circumstances where his financial situation at that time was already extremely straitened. Mr Angel stated that he was very offended by the Departmental officer's attitude and they had an argument. "Jenny" would not provide Mr Angel with her full name but gave him a reference number. Mr Angel also asked to be put through to the supervisor but again this request was not fulfilled. Mr Angel estimated that the telephone conversation lasted for approximately four or five minutes. During this time he asked about the reduction in pension and there was a discussion about superannuation. The Departmental officer told Mr Angel that he was confusing Centrelink with the Taxation Department. Mr Angel informed the Tribunal that he came to the view that he was not progressing anywhere in his conversation with "Jenny" even though he had told her that he was prepared to take a lie detector test to prove his various assertions. Mr Angel reiterated that he most definitely had told "Jenny" about his separated marital circumstances and could not understand why such important details were not listed in the file note of the telephone conversation (T18). Mr Angel stated that he did not formally ask for a review of the decision notified in the letter of 28 May 1998, because by the end of his discussion with "Jenny" he was "satisfied". Mr Angel stated that he had "cooled off" towards the end of the telephone conversation and agreed that "Jenny" tried to explain the situation. Mr Angel stated to the Tribunal:
"I didn't want to complain any more and accepted I couldn't get any money back".
Mr Angel informed the Tribunal that in relation to the copy of the Centrelink letter to him of 28 May 1998 (Exhibit A6), the handwriting on the reverse of the letter was his and indicated that the name of the person he had spoken to on the telephone on 3 June 1998 was "Jenny" and a telephone number and address of "70 Phillips St" was in fact the address of his Local Member, the Hon Mr J Howard, Prime Minister. Mr Angel's evidence is that he made these handwritten notes contemporaneous with his telephone conversation with "Jenny".
Mr Angel told the Tribunal that he later went to the Ryde Centrelink Office and by chance saw Mr Bishop, to whom he showed the letter of 28 May 1998. Mr Angel could not be precise about when this encounter occurred but thought it may have been in the first or second week of July. Mr Angel was advised by Mr Bishop to make an appointment, which he made for 26 August 1998. Mr Angel had no evidence of this appointment but told the Tribunal that he went to the office, was called to the window and at this time was interviewed by a female officer who during the course of the interview entered and left the room on approximately three occasions.
Mr Angel maintained to the Tribunal that every person he saw or spoke to in the Ryde Centrelink Office or on telephone calls, apart from Mr Bishop, he told about his separation under the one roof and that he had no support from his wife.
Mr Angel did agree, however, that he had signed Mrs Angel's "Registration for Pension Bonus Scheme" form on 8 December 1998 (Exhibit R3), signing as Mrs Angel's partner. Mr Angel stated that he had done this because he thought he was still "legally" married and therefore was obliged by law to sign the form.
Mr Angel was questioned about his letter of 14 December 1999 to Mrs O Renner at the Ryde Centrelink Office (T32). In the letter, Mr Angel had advised that he had contacted Centrelink personnel at various times and told them certain things. In this regard Mr Angel had recorded that he spoke about his marital situation with: a "lady interviewer" in 1996; a lady called "Jenny" whom he spoke to on 3 June 1998 at 3.45pm from which a receipt number 9742 was issued; a lady who interviewed him in late August or September 1999 in relation to a rent increase; a lady who telephoned him in February 1999 at 6.00 pm to inform him that his account would be credited with an amount of $35.50 which had been deducted mistakenly from his Age Pension; a person who informed him that his ex-partner did not want to complete any papers requested by Centrelink in relation to the couple's relationship; and finally, a conversation with a Departmental officer, Mrs Chitrani. In his letter of 14 December 1999, Mr Angel concluded:
"To all above mentioned i (sic) have clearly stated that my marriage was at an end and that we live in separate rooms and that i (sic) had no support from my ex wife at the time. As to why none of them ever asked me if i (sic) have filled the form of separation is a mystery to me." (T32).

Under cross-examination about the letter of 14 December 1999, Mr Angel conceded that in 1996, Mrs Angel was still supporting him in part and therefore point one of the letter was not accurate. Further, in relation to point four of the letter concerning him telling a female Departmental officer in February 1999 about his marital situation, he also agreed that he did not tell this person about his marital situation as he had claimed. He had told the officer in the Local Member's Office, whose name also was "Jenny", about his marital situation and believed that the Local Member's representative would have told the Department of Social Security. Mr Angel concluded that his letter at T32 was not accurate in relation to both points one and four.
It was after receiving a Departmental letter of 23 February 1999, advising of a further reduction in his pension, that Mr Angel made contact with his Local Member's Office. He was subsequently contacted late one evening by a representative of the Local Member and was informed that the deduction from his Age Pension had been an error.
Evidence of Ms Jennie McIntosh, Officer, Call Centre, Coffs Harbour Office of Centrelink
Ms McIntosh provided a written statement to the Tribunal dated 12 January 2001 (Exhibit R2), and provided oral telephone evidence at the hearing.
In her written statement, Ms McIntosh noted that she has been an officer at Centrelink's Call Centre Coffs Harbour from early 1998 and continues to work at this location. Ms McIntosh further reported that it is her practice to record the particulars of telephone conversations with customers as soon as possible in the customer's computer records. Referring specifically to Mr Angel, Ms McIntosh noted that she wrote a screen document on 3 June 1998 concerning a contact with Mr Angel (T18). Ms McIntosh noted that she could not now recall specifics of the telephone conversation with Mr Angel but having referred to the document she wrote at the time, she understood that Mr Angel was upset about his financial situation as his pension had been reduced due to an increase in his partner's earnings. Ms McIntosh further noted in her statement that she was unable to calm Mr Angel down at that time. Ms McIntosh wrote that it was her practice that if a customer mentioned anything which alerted her to a possible change in circumstances, then such information was included in the document recording the contact. In this regard, Ms McIntosh noted that if a customer had advised her that he or she was separated from a person who was being treated by Centrelink as their partner at the time, whether they were living together or not, she would have at least included that in her comments. Ms McIntosh concluded that she did not record any advice from Mr Angel arising out of their conversation on 3 June 1998 that he was separated from Mrs Angel and accordingly, she believed that she was not alerted to this circumstance from her conversation with Mr Angel.
In oral evidence to the Tribunal, Ms McIntosh noted that at the time she took Mr Angel's call, she would answer 60 calls per day and in terms of recalling what was discussed in those various calls, she could only rely on what she recorded in the computer document which she, as a matter of routine practice, writes directly at the time of the call. Providing a historical prospective, Ms McIntosh advised the Tribunal that the Coffs Harbour Call Centre commenced operation in early 1998 and there was a six week training period for staff which Ms McIntosh attended. By the time Ms McIntosh had a conversation with Mr Angel on 3 June 1998, she had been working in the centre for approximately six months. Ms McIntosh agreed that there was still a lot to learn at the time she had dealings with Mr Angel. Ms McIntosh's duties at the time included responsibility for handling calls on matters as diverse as the Disability Support Pension, Age Pension, Carer Payment and Parenting Payment.
Ms McIntosh agreed that the call with Mr Angel would have been an upsetting call and considered, from her computer record, that the call was longer than usual, given the length of the computer record. Ms McIntosh did not agree that because she was new at her job that she might have been anxious taking a call from someone who was upset and angry. Ms McIntosh stated that she probably took longer with the call to try and calm Mr Angel down and steer the conversation to a more rational level.
Ms McIntosh's recollection was that Mr Angel did not understand about Centrelink's Income Test and was confusing Centrelink with the Tax Office and the matters that that office is concerned with. She stated:
"He [Mr Angel] felt that we were incorrectly calculating his pension entitlement in regard to earnings that his wife was receiving. He seemed to be confusing us with the Taxation Office. He was talking about how we were rounding off the total annual income and putting him into another bracket and I was trying to explain that: that is how taxation works, but Centrelink income test is quite different and I clearly tried to show him what our income test was and how his wife's – or partner then – [income] were affecting his payments, but I didn't feel that he understood that. I think – I felt that he was still confusing us with the Taxation Office." (Extract from Transcript, page 3).
Ms McIntosh stated that if Mr Angel had told her about his marital situation and the separation under the one roof, then she would have considered this very important information and would have included it in her computer record. Ms McIntosh stated that she did not think that she could have overlooked such details, as it would have been to her a "major issue" which should have been recorded. Such information would, Ms McIntosh stated, "trigger separation action". Such action would have included advice about issues such as being a member of a couple, looking at financial aspects and organising for specific forms to be sent to record the information and further, to set up an appointment between the customer and a Departmental officer. Such action at the time may also have warranted putting Mr Angel's telephone call "on hold" and transferring him to another officer who could deal with issues such as changes in marital status.
In cross-examination, Ms McIntosh agreed that because Mr Angel's telephone conversation was an upsetting call, it might have taken longer to calm Mr Angel down as he was angry. Ms McIntosh reiterated that the main issue that she was aware of, and which was recorded, was the issue of his money reduction relating to income issues. Ms McIntosh stated that it would be impossible to record everything that was said in the telephone conversation and she did not recall the conversation some years later. She could only go on what she documented in the file note, which is always done before taking the next call. Ms McIntosh denied, however, making any statements to the effect that Mr Angel should be grateful that he was receiving any benefits. She noted that she herself had been "on benefits" and was very happy to have been the recipient. Ms McIntosh considered that she had a great deal of compassion in relation to such matters. In answer to a question as to whether it was possible that she might not have recorded details of Mr Angel's discussion of being separated under the one roof, Ms McIntosh replied "anything is possible", but added that it was highly unlikely that if Mr Angel had mentioned such important details as to his marital circumstances, that she would not have recorded such information and not have made arrangements to send out forms and organise a follow-up appointment with a Departmental officer. While Ms McIntosh could not recall the Departmental protocols in operation at the time she spoke with Mr Angel, she stated that if Mr Angel had mentioned anything about a change of marital status, even if still living in the same house she:
"… would definitely have put that on my document here because that's important information. I would then have either put a message through to the local office to contact him, made an appointment, or send (sic) out necessary forms." (Transcript Extract, page 5).

Evidence of Ms Susan MacAndrew, Officer, Ryde Centrelink Office

Ms MacAndrew advised that she had been working at the Ryde Centrelink Office since 1991. Ms MacAndrew recalled receiving a telephone call from the Local Federal Member's office on or about 5 March 1999 from a Ms Jenny Steele. The issue discussed was a rent assistance reduction of $35.00 to Mr Angel's Age Pension. At that time, Ms MacAndrew was a Disability Support Pension Officer but dealt with other matters. Following that phone call, Ms MacAndrew contacted Mr Angel. He discussed the rent reduction and further told her that he had "personal problems", but, Ms MacAndrew stated, Mr Angel did not go into what these problems were. Ms MacAndrew told the Tribunal that she told Mr Angel that he could, if he wished, speak to a social worker about these personal problems. Ms MacAndrew reiterated that neither Jenny Steele nor Mr Angel went into any specifics about the nature of his personal problems. Ms MacAndrew further stated that she thought she provided Mr Angel with the opportunity to discuss the problems with her, but he did not take up that opportunity which is why she suggested that he might like to discuss his concerns with a social worker. Ms MacAndrew informed the Tribunal that she felt that she could not press Mr Angel about these problems, but does not recall her precise wording to him. If Mr Angel had specifically mentioned something to her about his wife, his marital situation or there being a separation under one roof, she would have dealt with this, Ms MacAndrew advised. If he had mentioned such matters, Ms MacAndrew stated that she would definitely have taken certain actions known to her in relation to dealing with a customer's change of circumstances as related to the status of a married couple.
Ms MacAndrew informed the Tribunal that she had further contact with Mr Angel later in 1999, and then in January 2000, because he had a Freedom of Information request. She recalls that in December 1999 and January 2000, Mr Angel frequently spoke about the status of his relationship with Mrs Angel.
Ms MacAndrew was questioned as to how it could be that a computer file note of 5 March 1999 (T25), which recorded contact from a Local Member in relation to Mr Angel's "personal issues" gave rise to a letter some four days ealier on 1 March 1999, indicating that Mr Angel would be credited with arrears of $35.50 (Exhibit A4). Ms MacAndrew indicated that by the time the file note was written on 5 March 1999, the matter had in fact been "fixed", hence the letter of 1 March 1999, which was followed up with a confirmatory letter of 5 March 1999, from herself (Exhibit A5).
Submissions
Ms Clark, for the Applicant, submitted that Mr Angel sought to have his Age Pension paid at the single rate from 28 May 1998, on the basis that his communications with the Department on 3 June 1998 and in August 1998 each constituted separate requests for review of his Age Pension because of a changed marital status.
Dealing firstly with relevant case law, Ms Clarke referred the Tribunal to Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 in which the full bench of the Federal Court noted that social security legislation is beneficial and should be construed generously. In that decision, the Court held that subsection 159(5) of the Act as it then stood, dealing with a claim for an Invalid Pension, should be construed generously because it extended benefits conferred by beneficial legislation and was intended to overcome technicalities. Tribunal decisions in Re Secretary, Department of Social Security and Trevisan (1990) 22 ALD 537 and Re Eatt and Secretary, Department of Social Security (1992) 28 ALD 268, Ms Clark submitted, provided a line of authority that culminated in Re Frost and Secretary, Department of Social Security (1995) AAT 10360, 17 August 1995. At paragraph 10, that Tribunal concluded, amongst other things, that a submission before the Tribunal which contended that an applicant who did not use the word "review" should forfeit her entitlements,
"…is high-handed nonsense which totally ignores the scheme of the legislation. It reflects a Departmental attitude that is totally at odds with the attitude shown for many years now by the Department of Veterans' Affairs. That Department treats, properly so in the view of the Administrative Appeals Tribunal, the most informal query as a request for review – that is, it does so if that is necessary in the particular circumstances of a case."

Ms Clark further noted that in Re Marsh and Secretary, Department of Social Security (1996) 42 ALD 639, that Tribunal was prepared to apply a very broad definition to the term "review" and further, in Re Secretary, Department of Social Security and Mangano (1997) 2(11) SSR 156, an inquiry about a pension claim was treated as a request for review and this decision was consistent with previous cases before the Tribunal, which concluded that an application for review is made when a client is making enquires about, in particular, the rate of payment. Nothing in the authorities limits this principle to new claims or even to cases where there might be a Departmental error, Ms Clark submitted. Those cases are intended to be read very broadly, Ms Clark further contended.
Ms Clark submitted that the facts have been considerably narrowed since Mr Angel's application for review to the Tribunal. In this regard, Ms Clark noted that the Respondent has agreed that a contact made by Mr Angel on 6 October 1998, was in fact an application for review. Despite this concession by the Respondent, Ms Clark still contended that Mr Angel made an application for review firstly on 3 June 1998, when he spoke with the Call Centre Officer, Jennie McIntosh, at the Coffs Harbour Centrelink Office, making inquiries about his payments of Age Pension. This telephone conversation lasted at least five minutes which indicated that there would have been a substantial amount of information passing between Ms McIntosh and Mr Angel and as reflected in the brevity of the computer record, a great deal of this discussion was not recorded, Ms Clark submitted.

Ms Clark submitted that near the end of cross-examination, Ms McIntosh noted that Mr Angel "may" have said that he was living in a separate room from his wife and he "may" have said that his wife was not supporting him. Such evidence is unclear, Ms Clark contended, as to what was actually said in that conversation and it is quite possible that such information was provided by Mr Angel. Ms Clark submitted that Ms McIntosh had only been working in the Coffs Harbour Call Centre for six months but when looking at the type of issues which she was dealing with, namely matters of Age Pension, Disability Support Pension, Parenting Payment and Carer Payment, there was an enormous amount of material for her to absorb and understand to be able to answer the type of questions which would have come before her. Even an experienced officer may have missed the type of information that Mr Angel was discussing about his relationship with his wife, Ms Clark further contended.
The Applicant's contention is that Mr Angel rang up about his payments on 3 June 1998, because he was having financial problems. He was receiving very little more than to cover his rent and he believed that he spoke to Ms McIntosh very clearly about his marital situation. Mr Angel had also referred to another telephone conversation with a Departmental officer which he originally thought occurred in August or September 1998, but which now, Ms Clark submitted, occurred on 26 August 1998. This telephone discussion related to a $10.00 increase in his rent. He also submitted that at that time, he had explained to the officer that he and Mrs Angel lived in separate rooms and Mrs Angel did not financially support him.
Referring to Exhibit A2, Ms Clark noted that Mr Angel's records were accessed on 26 August 1998. There is no explanation from the Department as to why these records were accessed at that time. Further, access was undertaken by the Department as noted in the "Customer Record Access Monitor Report" ("CRAM") (Exhibit A2), on 22 September 1998. This record notes an extensive access for which there is no real explanation. Indeed, Ms Clark contended that there is a great deal missing from Mr Angel's file by way of explanation as to the reason for various events and their outcomes.
Referring to Ms MacAndrew's evidence, Ms Clark submitted that Ms MacAndrew detailed a conversation she had with Mr Angel which is also not recorded in the computer file records. This indicates a systemic problem with the Department in general and particularly with Mr Angel's case, that there are contacts made between customers and Departmental officers with no explanation as to why those contacts had occurred. It is up to the Tribunal, Ms Clark contended and with reference to Cooper (supra), that a generous construction be given to what such contacts might imply.
In relation to the legislation, Ms Clark noted section 76 of the Act at the relevant time provided that the rate of pension could be increased by the Secretary, if he or she was satisfied that the rate being paid was less than the rate provided for by the Act. Further, Ms Clark noted subsection 1239(1) of the Act at the time, which provided that the Secretary may review a decision of an officer under the Act if he or she was satisfied that there is sufficient reason to undertake such a review.
Ms Clark contended that Mr Angel made requests for review of his rate of pension and further that there is no requirement in the relevant legislation that requests for review be in a particular form. This contention is confirmed by reference to subsection 1240(1) of the Act, Ms Clark submitted.
Ms Clark concluded that the Departmental letter of 28 May 1998 contains a decision about Mr Angel's pension rate. His first request for review in relation to that decision was made on 3 June 1998, which was within three months of the decision being made. In the event that the Tribunal agreed that a request for review was made on 3 June 1998, then Ms Clark submitted that Mr Angel was qualified to receive a single rate of Age Pension with effect from 28 May 1998.
Ms Buckley, for the Respondent, submitted that the issue in this matter is whether the single rate of Age Pension is payable to Mr Angel prior to the date to which he has been currently backdated, as from 5 March 1999. Ms Buckley submitted that Mr and Mrs Angel were married and not living separately or apart at the time of Mr Angel's claim for Age Pension in 1996. The Respondent conceded, however, that Mr Angel was separated from his wife but living under the same roof from 28 January 1998. There is a disagreement about when this information was communicated to the Department and also when Mr Angel requested a review of Departmental decisions that he be paid the Age Pension at the married rate.
The Respondent further conceded at hearing that at an appointment between Mr Angel and a Departmental officer on 6 October 1998, during which Mr Angel raised issues regarding organising his papers for divorce and issues of separation from his wife, that the matters raised would have been appropriate to cause the Secretary to undertake a review of the decision as to the rate of payment of Mr Angel's Age Pension.
Ms Buckley accepted that there had been various contacts between Mr Angel and the Department between January 1998 and 5 March 1999, but certainly between 1996 and 6 October 1998, Mr Angel's marital status was that he was married to Mrs Angel. The Department's view of Mr Angel's marital status was unchanged following Mr Angel's interview with Departmental officer, Mr Bishop, on 28 May 1998. At that time all of Mr Angel's circumstances including his financial circumstances were considered as part of an administrative review and no evidence was provided by Mr Angel to indicate he had separated from his wife. Mr Angel's evidence was that he did not discuss any issue of his separation from his wife with Mr Bishop. Mr Angel did, however, discuss with Mr Bishop his wife's earnings and that she had been not able to attend the interview as Mr Bishop had requested, because she had work commitments. Further, Mr Angel provided his consent to Mr Bishop that his Age Pension payment be deposited in his wife's cheque account. Such advice and actions are not indicative, Ms Buckley submitted, of a person who was separated from his partner. Accordingly, Ms Buckley submitted that the decision of 28 May 1998 concerning the rate of Mr Angel's Age Pension would be very difficult to overturn when one took into account the evidence of discussions and documentary material provided to Mr Bishop at that interview. Certainly to Mr Bishop, Mr Angel was not presenting himself as a member of a separated couple.
In relation to Mr Angel's telephone discussion with Ms McIntosh on 3 June 1998, while Mr Angel maintained that his marital separation was communicated to Ms McIntosh, that clearly was not the message received or understood by Ms McIntosh. Ms Buckley submitted, however, that if the Tribunal interpreted the authorities in such a way as that any inquiry regarding a pension constituted a request for review of a specific decision, then the contact of 3 June 1998 might be treated by the Tribunal as a request for review. In the case of Re Cooper (supra), Ms Buckley agreed that that case certainly pointed to the social security legislation being beneficial. Ms Buckley submitted, however, that the majority of cases referred to by the Applicant are dealing with an issue of error, which is not the case in Mr Angel's situation, where the issue was a change of circumstances having taken place. Further, Ms Buckley contended that the facts of Mr Angel's case did not relate to a new claim situation as in Re Cooper (supra) and in Re Mangano (supra).
Mr Angel's application for review to the Tribunal relates to an existing payment where a new decision needs to be made in accordance with subsections 4(2) and 4(3) of the Act, Ms Buckley submitted. It is a somewhat complex decision for the rate of payment to change from that of a member of a couple to a single person, Ms Buckley submitted. It is further, a question of fact whether Mr Angel applied for review to the Department, in his opinion, voicing his concerns about him and his wife living as separated people and Mrs Angel not supporting him financially.
The Respondent contended, that a request for review to the Department involves an effective communication by the customer that is at least indicative of the customer's concern about a decision that the Department has made, which in Mr Angel's case was about whether or not he was a member of a couple and what rate of Age Pension he was qualified to receive. In order for that to occur, an officer must have information to point to there being an issue about Mr Angel's marital status. Ms Buckley submitted that the Department disputed that such information was provided by Mr Angel to raise issues which would trigger a review in this area. Further, Ms Buckley noted that Mr Angel's documentary evidence, such as his letter to the Department of 14 December 1999 (T32), and the oral evidence to the Tribunal has differed on a number of points. In this regard, Ms Buckley noted that Mr Angel acknowledged that his information was not always strictly correct. In all the circumstances, Ms Buckley concluded that the married rate of Age Pension should continue in accordance with subsection 71(2) of the Act until there is a determination under section 76 to determine that a higher rate is applicable. The first time at which the single rate of Age Pension could have been payable was, in the Respondent's submission, from the date of Mr Angel's interview with a Departmental officer on 6 October 1998. Ms Buckley concluded that the date of effect from which the single rate of Age Pension would have been payable was from 1 October 1998, when there was an increase in the rate of payment in accordance with the "Consumer Price Index" ("CPI").
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the case law and the legislation. The Tribunal accepts, as conceded by the Respondent, that Mr and Mrs Angel became separated under the same roof from 28 January 1998. This event was not communicated to the Department at the time. At an interview with a Departmental officer, Mr Bishop, on 28 May 1998, the Tribunal finds that a number of matters were discussed between Mr Angel and Mr Bishop which did not include the status of Mr Angel's relationship with Mrs Angel. The matters which were discussed included the issue of Mrs Angel's earnings, the provision of Mr Bishop with evidence of these earnings and a general discussion of Mr Angel's financial situation. Mrs Angel did not attend this interview, although the letter requesting Mr Angel attend the interview also requested that Mrs Angel attend. The Tribunal understands and accepts the reason provided to Mr Bishop for Mrs Angel's absence related to her work commitments. It is surprising to the Tribunal, given the nature of the discussions with Mr Bishop and Mr Angel's obvious knowledge of the impact of Mrs Angel's financial situation on his pension rate, that he did not communicate to Mr Bishop any detail of his marital separation. It is also difficult for the Tribunal to understand how Mr Angel might have thought that the Department knew at the time of his interview with Mr Bishop of his being separated from Mrs Angel under the same roof and how, if Mr Angel did not communicate such information, the Department would have been in a position to decide he was qualified to receive the single rate of Age Pension.
It is contended that the single rate of Age Pension should have been paid from 28 May 1998, the date upon which, following Mr Angel's interview with Mr Bishop, a Departmental letter was issued notifying of the decision that Mr Angel's married rate of pension was to be reduced because of the combined income of himself and Mrs Angel (T14). Subsequently, on 3 June 1998, Mr Angel telephoned Ms McIntosh at the Coffs Harbour Call Centre and claims to have told her about his separated status. While the Tribunal accepts that Ms McIntosh had a number of different pension and benefit inquiry responsibilities and Mr Angel's call occurred only six months after her commencement of duties at the Call Centre, it does not consider that such important information as that relating to Mr Angel's marital status would have been omitted from her computer file note due to Ms McIntosh's inexperience or the pressure of work. Ms McIntosh's evidence was that it might have been possible that she did not record such information, but she thought it highly unlikely given that the issue of a pensioner's marital status has great implication for the rate of pension. Ms McIntosh's evidence was that she would have been highly sensitive to such information at that time. The Tribunal found Ms McIntosh's evidence to be objective and truthful while acknowledging that in reality, it is always possible that mistakes or omissions could be made in the recording of information provided by customers. However, in relation to information concerning a pensioner's marital status, particularly in the context of a call concerning financial circumstances, the Tribunal considers that if such information had been provided it would have been recorded and triggered a variety of responses. The Tribunal accepts Ms McIntosh's evidence that it was highly unlikely that had Mr Angel mentioned his changed marital status, that it would not have been recorded. Further, the Tribunal is confirmed in its findings when it notes that Mr Angel did not consider it relevant to tell Mr Bishop about his marital status in the interview which gave rise to the letter of 28 May 1998. The Tribunal further finds that no review was undertaken at the time of the call to Ms McIntosh, because there was no information which was provided to her which could have alerted her and consequently the Department, that there was a different marital status. In such circumstances and on the available evidence, the Tribunal does not consider that the contact made by Mr Angel with Ms McIntosh on 3 June 1999 provided any information which could have been considered a request for review in light of Mr Angel's changed circumstances.
There were further contacts by Mr Angel with the Department as noted in the CRAM report, indicating contacts on 26 August 1998 and 22 September 1998. There are no file notes or computer records detailing the reason for or outcome of such contacts. The Tribunal must agree with Ms Clark in her submissions that the Department's recording of customer contact with Mr Angel was sorely lacking and indicative of poor record keeping. Having made this comment, the Tribunal is left in a position of not being able to make a finding one way or the other as to whether or not such contact included discussion of Mr Angel's marital status, a change of circumstances or indeed any detail which could be construed as a request for review. It may well have been that arising out of the contact on 22 September 1998, that a letter of the same date was written providing an interview time and the opportunity for a Departmental officer "[to] be able to answer any questions you may have about your entitlement to this payment [Age Pension]" (T21). It may also be the case that as a result of Mr Angel's contact with the Department on 22 September 1999, the issues which he claims to have raised earlier with the Department were in fact raised and as a consequence an interview arranged to deal with such matters.
There is no dispute that Mr Angel attended an interview with a Departmental officer on 6 October 1998 and that issues were raised concerning Mr Angel's separation and his filing for divorce. The Respondent concedes and the Tribunal so finds that, arising out of the interview of 6 October 1998, it was appropriate that a Departmental delegate should have accepted that Mr Angel's contact with the Department at that time was tantamount to a request for review of the decision concerning Mr Angel's rate of Age Pension (Transcript of Submissions, page 4).
The Tribunal accepts Mr Angel's evidence that at an interview with a Departmental officer at the Ryde Centrelink Office in late 1998, which the Tribunal finds occurred on 6 October 1998, Mr Angel raised the issue of his separated marital status. Although this information was not in the form of a formal request for review of his rate of Age Pension, relying on Re Trevisan (supra), Re Eatt (supra) and Re Frost (supra), the Tribunal concludes that matters arising at this interview should have been considered by the Department as a request for review upon which the Department should have acted, but did not.
The Tribunal therefore determines that at the interview of 6 October 1998, Mr Angel made a request for review in relation to his rate of Age Pension and, had the Department made inquiries at that time, it would have satisfied itself that Mr Angel was separated from his wife under the same roof and should have been paid at the single rate of Age Pension pursuant to subsection 80(3) of the Social Security Act 1991.
In so finding, the Tribunal notes the "Registration for Pension Bonus Scheme" form signed by both Mr and Mrs Angel on 8 December 1998. While Mr Angel signed this as Mrs Angel's partner, the Tribunal accepts Mr Angel's evidence that he signed the form in these terms as he believed he was still "legally married" and obliged therefore to sign the form.
In all the circumstances and for the reasons set out above, the decision under review is set aside and in substitution therefore, the Tribunal decides that Mr Angel was eligible for payment of the Age Pension at the single rate from 6 October 1998. The matter is remitted to the Respondent for determination of the quantum of arrears.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ............[sgnd]..................................................................
  Ms Stella Vaughan, Associate
Date of Hearing  15 January 2001
Date of Decision  11 April 2001
Representative for the Applicant              Ms S Clark, Solicitor, Welfare Rights Centre, Sydney
Representative for the Respondent        Ms M Buckley, Departmental Advocate