Barrington and Secretary, Department of Family and Community Serv Ices

[2003] AATA 322

Administrative

Appeals

Tribunal

 

REASONS FOR DECISION [2003] AATA 322

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1027

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARRY BARRINGTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date1 April 2003 

PlaceBundaberg

Decision The Tribunal affirms the decision under review.

(Sgd) O Rinaudo

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – mature age allowance – arrears owing to applicant – whether applicant entitled to be paid those arrears – whether application for reinstatement of cancelled payment made within 13 weeks of cancellation

Social Security (Administration) Act 1999 s 109(1)

WRITTEN REASONS FOR ORAL DECISION

7 April 2003  Mr O Rinaudo, Member    

1.      This is an application by Mr Barry Barrington for review of the decision of Centrelink not to pay arrears of Mature Age Allowance to him for the period 31 December 2001 (the date of cancellation of his payment) to 5 July 2002 (the date of reinstatement of his allowance).

2. Mr Barrington had been in receipt of Mature Age Allowance for some years until 31 December 2001 when it was cancelled. The allowance was restored, subsequent to an application for reinstatement being made to Centrelink, from 5 July 2002. The Social Security Appeals Tribunal affirmed the decision not to backdate arrears of payment to 31 December 2001. The reason that Mr Barrington is not entitled to arrears of allowance from the date of cancellation (31 December 2001) is because he applied for reinstatement of the allowance more than 13 weeks after its cancellation: see section 109 (1) of the Social Security (Administration) Act 1999. 

3.      It appears that the circumstances of the cancellation of his allowance were as follows.  On or about 10 December 2001, the applicant and his wife, who were caravaning in Western Australia, attended at the Albany Centrelink office to lodge a continuance form to ensure the continued payment of his benefit. 

4.      It is clear from the documentary evidence, and the respondent accepts, that the applicant attended the Albany Office of Centrelink on 10 December 2001 (see T14 p26).  As the result of something that was told to Mr Barrington by a Centrelink officer on that day, he did not lodged his form or any other forms until July 2002 when he applied for reinstatement of his Mature Age allowance. 

5.      On 31 December 2001, as a result of the applicant not having lodged his form, his allowance was cancelled and a notice advising of this fact was sent to his correct mailing address, which was, at the time, care of his daughter (see T5 p10).  The applicant told the Tribunal that his daughter had not received the notice.  It appears that the arrangement was that his daughter would open any mail and notify her parents about its contents.  The applicant told the Tribunal that his daughter would have notified him of a letter such as this, as a matter of urgency, had she received it. 

6.      The issue for the Tribunal in this case is whether the applicant is entitled to arrears of Mature Age Allowance from 31 December 2001 until 5 July 2002.

7. Section 237 of Social Security (Administration) Act 1999 states that notices that are correctly addressed and sent by prepaid post are deemed to have been received.  Accordingly, in this case, Mr Barrington is deemed to have received the notice advising of the cancellation of his allowance, as it was addressed to his correct mailing address and forwarded by prepaid post. 

8. Pursuant to section 109(2) of the Act, Mr Barrington was to apply within 13 weeks of the cancellation if he was to have payments reinstated from the date of cancellation. He did not do so. An application for reinstatement was not made for some seven months after the date of cancellation. Accordingly the Tribunal must affirm the decision under review.

9.      Although the Tribunal has found against the applicant based on the provisions of the Social Security (Administration) Act 1999, the Tribunal is satisfied that the applicant attended the Albany office of Centrelink in December 2001 and was given incorrect advice.  As a result, the applicant did not lodge continuation forms which caused his allowance to be cancelled by Centrelink. 

10.     There is no reason not to believe what the applicant has told the Tribunal.  He has, by all accounts, put in forms and otherwise complied with Centrelink’s obligations for the 4½ years he has been in receipt of the allowance.  Why then would he stop putting in the forms at this particular time?  It seems clear that the only reason he would have stopped would have been as a result of the incorrect advice given to him by the Centrelink officer in Albany.

11.     Both Mr and Mrs Barrington gave evidence and impressed the Tribunal as being very honest people.  It seems clear that once the mistaken advice had been given events overtook them. The notice was either overlooked or not received.  Again it should be noted that, because of the wording of the Act, the Tribunal cannot take this into account.  However, but for the wrongful advice, no letter would have ever been sent.

12.     The applicant and his wife were away for a lengthy period and did not have access to bank accounts.  Apparently bank statements were not to be opened by their daughter as they were private.  This seems reasonable given that the applicant and Mrs Barrington thought that they had their financial affairs in order.

13.     The Tribunal was told that the applicant is pursuing compensation and the Tribunal assumes that the applicant will continue to pursue this avenue of redress.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  1 April 2003 at Bundaberg
Date of Decision  1 April 2003
Date of Written Reasons          7 April 2003

The Applicant Appeared in Person
For the Respondent                  Ms H Wallis-Dunn, Departmental Advocate