Bond and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1458
•25 May 2021
Bond and Secretary, Department of Social Services (Social services second review) [2021] AATA 1458 (25 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4406
Re:Jasmin Bond
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:25 May 2021
Place:Canberra
The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
..........................[sgd]..................................
Member W Frost
Catchwords
SOCIAL SECURITY PAYMENT – age pension – whether the Applicant is taken to have received a decision from the Agency – whether the Applicant was given notice of the decision – whether special circumstances or backdating provisions allow personal circumstances to be considered – whether legislative provisions are discretionary to allow payment of age pension from earlier date – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Social Security Act 1991 ss 43, 179
Social Security (Administration) Act 1999 ss 107, 129, 237Cases
Angel and Department of Family and Community Services [2001] AATA 292
Bagh v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 128
Frost and Secretary Department of Social Security (1995) AAT 10360
Ingram and Secretary, Department of Family and Community Services [2004] AATA 279
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457
Lamotte and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 978
Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR1 64
Re Bendovska and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 134
Re Caporn and SDSS [1996] AATA 879
Re SDSS and Manley [1995] AATA 559
Secretary, Department of Social Security and Marsh [1996] AATA 669
Secretary of Family and Community Services v Rogers [2000] FCA 1447
Threadgold and Secretary, Department of Social Services [2014] AATA 654Secondary Materials
Australian Government, ‘Act of grace payments, waiver of debts to the Commonwealth, Compensation for Detriment caused by Defective Administration (CDDA)’ (Department of Finance) <
REASONS FOR DECISION
Member W Frost
25 May 2021
INTRODUCTION
This decision relates to whether the Applicant, Ms Jasmin Bond, can be paid the Age Pension any earlier than 4 July 2019, being the date she started receiving that social security payment from the Department of Human Services (now called Services Australia and herein referred to as the Agency).
In 2017, Ms Bond’s claim for the Age Pension was rejected by the Agency. A notice to this effect was sent to Ms Bond. She did not take steps within the requisite 13 week timeframe to have this decision reviewed by the Agency in order for any successful review to result in that payment being backdated to the date of her claim. Ms Bond started receiving the Age Pension in July 2019 after making a subsequent claim. In January 2020, Ms Bond appealed the Agency’s decision to grant her the Age Pension from July 2019 and not from an earlier date. That decision was affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
Ms Bond sought review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal) and contended that the Agency had not given her notice of the decision to refuse her 2017 claim for the Age Pension because: it had not made a decision, the notice was not in the terms of a decision made, and the notice was of a different decision.
The Tribunal considered all documents in the bundle of documents lodged in this proceeding pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The submissions made by the parties have also been considered,[1] including a timeline of major events for 2017 and 2018 and a bundle of additional documents lodged by Ms Bond.[2]
[1] Ms Bond’s Amended Statement of Facts, Issues and Contentions dated 18 February 2021 with attachment, marked Exhibit A1; and Respondent’s Statement of Facts, Issues and Contentions dated 29 January 2021.
[2] Exhibits A2 and A3, respectively.
ISSUE
The issue before the Tribunal is whether Ms Bond can be paid the Age Pension from a date earlier than 4 July 2019.
BACKGROUND
Ms Bond is 71 years old and lives near Orange in New South Wales (NSW).[3]
[3] Exhibit R1, T1, pages 1-4.
Relevantly for the application before the Tribunal, on 21 June 2017, Ms Bond attended the Centrelink office in Orange about her intention to claim the Age Pension.[4] On the same day, the Agency sent a letter to this effect and requested Ms Bond provide a completed claim form and any associated documentation.[5]
[4] Exhibit R1, T37, page 631.
[5] Exhibit R1, T7, pages 123-124.
On 26 June 2017, Ms Bond lodged her paper claim form for the Age Pension and accompanying documentation, which included her individual tax return for the 2015 financial year, financial reports for her business and, most relevantly for this proceeding, a Loan Contract dated 30 September 2016 between herself and First Choice Credit Union Ltd ABN 63 087 649 867 in the amount of $340,549.77, which required Ms Bond to provide that entity with a registered first mortgage over real property in Orange.[6] In Ms Bond’s Age Pension claim form, she noted that ‘I owe $340,000 to First Choice Credit Union’.[7] Additionally, the 2015 financial reports for Ms Bond’s company lists an amount of $323,809.23 as a non-current liability to First Choice Credit Union.[8] A file note of the Agency from 26 June 2017 states that Ms Bond had not lodged her individual tax return for the 2016 financial year.[9] A further file note of the same date records Ms Bond’s claim for Age Pension as having been rejected, because ‘Mortgage documents requested have not been provided within 19 days of request’.[10] While not evident from the file note, it appears to be a later annotation or addition to the Agency’s documentary record from June 2017, because that file note states that ‘Document created by DFS on 13 OCT 2017’,[11] which post-dates the file note and was the date of the notice of decision rejecting Ms Bond’s Age Pension claim.
[6] Exhibit R1, T8, pages 125-135; T9, pages 136-174; T10, pages 175-243; and T37, pages 629 and 632.
[7] Exhibit R1, T18, page 129.
[8] Exhibit R1, T9, page 151.
[9] Exhibit R1, T37, page 632.
[10] Exhibit R1, T37, page 633.
[11] ibid.
On 27 June 2017, Ms Bond attended the Centrelink office in Orange, NSW, and provided relevant identification for her Age Pension claim.[12]
[12] Exhibit R1, T37, page 636.
On 2 August 2017, the Agency sent Ms Bond a written request for information to assist in the determination of her Age Pension claim.[13] This requested documentation comprised a completed Agency form regarding a proprietary limited company in Ms Bond’s name and all supporting documentation, together with a separate Agency form for her superannuation fund and her income tax return for the 2016 financial year. The Agency provided Ms Bond with 14 days, being 16 August 2017, to provide this documentation. A file note of the Agency states that further information was requested on 5 August 2017, and was due on 23 August 2017, while also recording that a letter was sent to Ms Bond on 2 August 2017, being the letter requesting information by 16 August 2017.[14]
[13] Exhibit R1, T11, pages 244-245; T37, page 637.
[14] Exhibit R1, T37, page 634.
On 16 August 2017, Ms Bond lodged at the Centrelink office in Orange a completed private company form, a ‘Details of income stream product’ form and associated financial documentation in support of her Age Pension claim, including her requested income tax return for the 2016 financial year.[15]
[15] Exhibit R1, T12, pages 246-288; T13, pages 289-319; T37, page 638.
On 21 August 2017, a file note of the Agency was annotated to note that no further information was requested, but that the claim would be referred to a Complex Assessment Officer (CAO) upon receipt of Ms Bond’s returned documentation requested in the Agency’s correspondence from early August 2017.[16]
[16] Exhibit R1, T37, page 634.
On 30 August 2017, a further file note of the Agency was annotated in the following terms: ‘CAO referral finalised as assessment is not required’.[17] This finalisation was confirmed in a separate file note of the Agency from 30 August 2017.[18]
[17] ibid., page 639.
[18] ibid., page 641.
On 4 September 2017, a file note of the Agency recorded that Ms Bond attended the Centrelink office in Orange and ‘advised that she is in hardship due to medical condition. Appears CAO assessment has been completed. Please follow up claim and contact customer with outcome’.[19]
[19] ibid., page 642.
On 7 September 2017, Ms Bond again attended the Centrelink office in relation to what is recorded as being a ‘General Enquiry for Newstart Allowance’.[20] The file note stated that Ms Bond ‘is in financial hardship and needs claim to be processed and finalised,’ and that attempts ‘have been made to follow this up however previous actdocs have been closed’.
[20] ibid., page 643.
On 8 September 2017, Ms Bond telephoned Centrelink regarding her Age Pension claim. The Agency’s file note records that Ms Bond was ‘concerned as to why claim taking so long’.[21] A further file note from 8 September 2017 refers to there being a ‘CAO referral in place’ and that the officer from the Agency has forwarded ‘the act* to CAO but nothing else I can do at this stage’.[22]
[21] ibid., page 644.
[22] ibid., page 645.
On 11 September 2017, Ms Bond again contacted Centrelink regarding her Age Pension claim. The accompanying file note of the Agency relevantly states: ‘Please action Age Pension claim and all related acts and call docs’.[23]
[23] ibid., page 646.
On 14 September 2017, a file note of the Agency was annotated to record that information requested from Ms Bond was due back on 28 September 2017 and that the Agency was awaiting her response.[24]
[24] ibid., page 634.
On 19 September 2017, Ms Bond telephoned Centrelink and she was asked to provide various documentation in relation to her Age Pension claim including, relevantly, a ‘mortgage statement as at 21.6.17’.[25] It was recorded that Ms Bond informed the Agency that she could provide this requested statement.
[25] ibid., page 647.
On 20 September 2017, Ms Bond lodged various documentation to support her claim for Age Pension.[26] While Ms Bond Provided a number of First Choice Credit Union statements to the Agency, these appear to be for a savings account held by her superannuation fund and not related to the relevant mortgage held by First Choice Credit Union. The Agency’s file note from this date records the following: [27]
cust has provided financial report for period ended June 2016, please see the first page where it indicates the difference between Gourmet Foods and Guest House. Customer has also provided BAS statement – although not required wanted these scanned. Also provided, market analysis for [Ms Bond’s residential property]. Sa330 customer completed to the best of her ability – please phone her if it requires more information – also provided statements for JB Super Fund. This have [sic] been scanned and file in Orange.
Customer will be receiving the letter from the AEC in the next week and will provide this as soon as she receives
[26] Exhibit R1, T14, pages 320-382; T37, page 647.
[27] Exhibit R1, T37, page 647.
On 13 October 2017, the Agency sent a letter to Ms Bond, which relevantly stated as follows: [28]
[28] Exhibit R1, T15, pages 383-384.
Rejection of your claim for Age Pension
· We cannot pay you Age Pension because we have not received a reply to the letter/s we sent you.
…
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review. [emphasis in original]
A ‘Pensions Status History’ document of the Agency records that Ms Bond’s application for an Age Pension was rejected due to her failure to reply to correspondence. The date of effect was listed as 21 June 2017, being the date Ms Bond contacted the Agency regarding her intent to claim the Age Pension.[29] An internal file note of the Agency from 13 October 2017 relevantly stated that ‘Customer Service Officer actioned record on 13 OCT 2017 regarding Claim for Age Pension’ and that the reason for Ms Bond’s Age Pension claim being rejected was that ‘Mortgage documents requested have not been provided within 19 days of request’.[30] The file note further recorded that: ‘Cus to provide information within 13 weeks for a reassessment’. Ms Bond in this proceeding acknowledged that she was sent the Agency’s letter dated 13 October 2017 and that this notice advised of her review rights.[31]
[29] Exhibit R1, T37, page 623.
[30] ibid., page 648.
[31] Paragraph 11 of the ‘Applicant’s Statement of Facts and Contentions’ dated 18 February 2021.
From October 2017 until June 2019, Ms Bond did not contact the Agency.[32] On 6 June 2019, the Agency sent Ms Bond a ‘Claim for Age Pension’ form and other related documentation.[33]
[32] Exhibit R1, T2, page 43; T18, pages 397-416; T32, page 610.
[33] Exhibit R1, T19, pages 417-426; T18, pages 397-416; T20, pages 427-441.
On 4 July 2019, Ms Bond lodged with the Agency another claim for Age Pension, together with her relevant documentation.[34]
[34] Exhibit R1, T21, pages 442-466; T22, pages 467-488; T23, pages 489-511; T24; pages 512-533; T25, pages 534-546; and T26, pages 547-594.
Between August and September 2019, the Agency requested further documentation from Ms Bond.[35] This was provided to the Agency in October 2019.[36]
[35] Exhibit R1, T27, pages 595-597; T28, pages 598-600; and T29, pages 601-603.
[36] Exhibit R1, T37, page 653.
On 8 October 2019, the Agency granted Ms Bond the Age Pension with effect from the time she made her further claim for that social security payment, being 4 July 2019, and not from an earlier date.[37]
[37] Exhibit R1, T30, pages 604-606.
In January 2020, Ms Bond requested a review of the Agency’s decision, because she claimed that she should have been paid the Age Pension from 2017, not from July 2019.[38] The decision was affirmed by an Authorised Review Officer (ARO) on 20 January 2020, who found that: [39]
You contacted the department about making a claim on 21 June 2017. I have found you did not submit the required documents for this claim. Your claim for Age Pension was subsequently rejected on 13 October 2017. You had no further contact with the department between 13 October 2017 and 4 July 2019 when you made a new claim for Age Pension.
You had advised the department you could provide your mortgage documents during a phone conversation on 19 September 2017. You failed to do this despite receiving multiple verbal and written requests. You told me you believed the department should not have needed those documents as they already had your tax returns. I have found your claim was rejected as you did not provide the required documents although they were available to you. Further, I have found you lodged a separate claim for Age Pension on 4 July 2019 which was correctly assessed. This means the start day for your Age Pension is 4 July 2019.
[38] Exhibit R1, T31, page 607.
[39] Exhibit R1, T32, pages 608-613.
In April 2020, Ms Bond applied to the AAT1 for review of the ARO decision.[40]
[40] Exhibit R1, T33, pages 614-615; T34, page 616.
On 15 June 2020, the AAT1 affirmed the decision not to pay Ms Bond the Age Pension from a date before 4 July 2019.[41] The AAT1 found that Ms Bond had not requested a review of the Agency’s 2017 decision within the requisite 13 weeks of that decision to be eligible, if successful, to receive that payment from the date she made her Age Pension claim in 2017. The AAT1 relevantly noted that: [42]
Ms Bond said that from June 2017 when she commenced a claim for AP [Age Pension] she found the experience daunting and feels that she did not receive enough assistance from Centrelink to ensure that she got things correct; she did not know that she could go to her accountant or solicitor to help. She was going through a difficult time trying to sell her business, working very long hours and had serious health problems. It was for these reasons that she did not challenge the decision made by Centrelink on 13 October 2017 to reject her claim for AP. Due to the difficulties she had faced when applying she did nothing further until 2019 when she received advice that she should again apply for AP.
…
Centrelink say that despite receiving multiple verbal and written requests for her to provide her mortgage documents, she advised them during a phone conversation on 19 September 2017 that she could provide the document, but she failed to do so.
[41] Exhibit R1, T2, pages 42-44.
[42] ibid., pages 43-44 at [3] and [6].
In July 2020, Ms Bond applied to the Tribunal for review of the AAT1 decision.[43] In the section of her application responding to the question as to why she thought the decision was wrong, Ms Bond stated that it was: [44]
because it does not take into account the considerable number of acute medical conditions which I was experiencing throughout 2016, 2017, 2018 and 2019. The relevant medical records are attached.
[43] Exhibit R1, T1, pages 1-2.
[44] ibid., page 2.
LEGISLATION
There was no dispute between the parties that Ms Bond was qualified for an Age Pension, pursuant to section 43 of the Social Security Act 1991 (Social Security Act), from the time she lodged a claim for that payment in 2017.
In relation to when a person is taken to have received a decision from the Agency, section 237 of the Social Security (Administration) Act 1999 (Administration Act) relevantly provides that:
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
Subsection 129(1) of the Administration Act provides that a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
In relation to the date of effect of a favourable application for review of a decision rejecting a claim for a social security payment, section 107 of the Administration Act relevantly states that:
(2) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.
For completeness, the Tribunal notes that, under section 179 of the Social Security Act, an application may be made to the Tribunal for review of a decision of the AAT1 that was made under subsection 43(1) of the AAT Act. In this regard, the AAT1 made a decision on 15 June 2020 affirming the decision under its review pursuant to subsection 43(1)(a) of the AAT Act. The Tribunal is therefore satisfied that it has jurisdiction in relation to this application.
CONTENTIONS
Ms Bond
Ms Bond submitted that there is no evidence that any decision was made by the Agency in relation to her claim for the Age Pension. That is, there was no decision in respect of which notice could have been given to Ms Bond. Additionally, the notice was not in the terms of a decision made by the Agency and it was notice of a different decision.[45]
[45] Paragraph 13 of the ‘Applicant’s Statement of Facts and Contentions’ dated 18 February 2021.
Ms Bond provided voluminous material to the Agency over a period of several weeks in August and September 2017 in support of her claim for the Age Pension, in addition to the initial documentation comprising her claim for the Age Pension. It was submitted that in order to make a decision, the Agency must have ‘proper, genuine and realistic’ consideration to the merits of Ms Bond’s case.[46] However, the Agency had, it was contended:[47]
simply ignored or dismissed the applicant's evidence and submission without engaging with it. More was needed. The respondent did not properly, or it seems at all, ‘consider’ or ‘engage with’ the applicant's material.
[46] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457. Paragraphs 29 and 30 of the ‘Applicant’s Statement of Facts and Contentions’ dated 18 February 2021.
[47] Paragraph 33 of the ‘Applicant’s Statement of Facts and Contentions’ dated 18 February 2021.
To this end, Ms Bond’s representative referred the Tribunal to correspondence between himself and a representative of the Agency regarding the documentation provided to it by Ms Bond for consideration of her Age Pension claim.[48] Ms Bond’s submission was that when she delivered documents to the Centrelink office in Orange, they were scanned, with the originals returned to Ms Bond, and the documents where thereafter available to any officer of the Agency with requisite authority to deal with them. To this end, it is necessary to set out the relevant correspondence, as follows.
[48] Exhibit A1.
In November 2020, Ms Bond’s representative relevantly wrote to the Respondent’s representative that:[49]
The ODR’s [Online Document Recording] clearly show that a complex assessment officer (CAO) was involved in the assessment of the pension entitlement of the applicant. When my client instructed me that the persons she spoke to in the office at Orange would not give any advice as to the progress of the pension application and she was told that the papers had to go to Canberra, I inferred that was the location of the complex assessment officer.
Plainly Canberra is the location of the Litigation Section as well.
[49] Exhibit A1.
The Respondent’s representative relevantly responded as follows:[50]
Complex assessment officers (CAO) are located all over the country. I am unable to disclose their exact locations to you.
…
The Agency does not physically transmit the documents anywhere. An individual’s documents are electronically uploaded to their Centrelink record.
…
I am unable to confirm the exact date the CAO accessed or received the relevant documents. These documents are electronically uploaded per the date of receipt, and become available for viewing at any stage after those dates.
[50] ibid.
Ms Bond’s representative replied to the above correspondence, relevantly as follows:[51]
I am reasonably confident that your client has a screen on its computer which shows who (in terms of log on identity) accessed the client’s records and when. I infer from your answer that your client is refusing to say when my client’s record was accessed by the CAO.
At the moment, my client and the AAT have no evidence that the documents in T14 (or the earlier documents lodged on 14 and 16 August) [being supporting and requested documents for Ms Bond’s Age Pension claim] were ever considered by the CAO.
[51] ibid.
In summary, Ms Bond submitted that there is no decision because:[52]
(a)there is no evidence that any officer of the Agency accessed the documents she lodged;
(b)there is no evidence that the contact by Ms Bond (by phone and in person, including lodgement of documents) was taken into account;
(c)it is inconceivable that an officer of the Agency could have considered the contact by Ms Bond with the Agency during the period 2 August and 20 September 2017 and come to the decision that she had not responded to letters;
(d)there are two iterations of the decision, one in the letters and the other being a file note of the Agency from 8 September 2017;[53]
(e)the Agency was unable to identify the decision maker; and
(f)the Agency’s refusal/failure to identify the date, time and officer who accessed Ms Bond’s file to make the decision.
[52] Paragraph 34 of the ‘Applicant’s Statement of Facts and Contentions’ dated 18 February 2021.
[53] At Exhibit R1, T37, page 648.
Respondent
The Respondent contended that, pursuant to section 237 of the Administration Act, Ms Bond was given notice of the decision to reject her claim for the Age Pension on 13 October 2017.
The Respondent also maintained that the notice of the decision was adequate for the purposes of subsection 107(3) of the Administration Act. That notice informed Ms Bond of the Agency’s rejection of her claim for the Age Pension, the reasons for rejection and her options to request a review. In this regard, the Respondent contended, Ms Bond was put on sufficient notice of the importance of requesting such a review within 13 weeks and, additionally, she accepted that she received this correspondence and was advised of her review rights at this time.
The Respondent submitted that Ms Bond did not request a review of the decision to reject her claim for the Age Pension within 13 weeks after receiving that decision in October 2017, and only did so on 2 January 2020 when she requested her Age Pension be backdated to her original claim date in June 2017. In accordance with subsection 107(3) of the Administration Act, because more than 13 weeks had passed since the Agency’s notice of decision was given to Ms Bond, the earliest date that she was entitled to be paid the Age Pension was 2 January 2020.
Furthermore, the Respondent contended that the legislative provisions regarding the date of review and date of effect are not flexible or discretionary in order to allow for payment of the Age Pension from a date earlier than 4 July 2019, when Ms Bond was granted that payment following a separate Age Pension claim. Accordingly, the date of effect of any favourable outcome from the Tribunal’s review would be 2 January 2020, resulting in it being of no practical effect, because Ms Bond commenced receiving the Age Pension in July 2019 as a result of that separate claim.
CONSIDERATION
Was a decision made?
Based on all the evidence before the Tribunal, it is satisfied that a decision was made by the Agency. It rejected Ms Bond’s claim for the Age Pension. In relation to determining the date a decision takes effect, section 107 of the Administration Act relevantly requires that ‘a decision is made rejecting a person’s claim for a social security payment’. On 13 October 2017, the Agency sent a letter to Ms Bond which was headed ‘Rejection of your claim for Age Pension’ and listed her options if she did not agree with that decision, including the statutory timeframes involved in any requested review. This correspondence plainly conveyed the Agency’s decision in relation to Ms Bond’s Age Pension claim. It was brief, but unambiguous; the Agency had made a decision to reject Ms Bond’s claim.
In Secretary of Family and Community Services v Rogers [2000] FCA 1447 (Rogers), there were numerous different notices sent to the applicant regarding the change of rate for a social security payment, such that it was difficult to identify the Agency’s decision and its effect. That is distinguishable from Ms Bond’s application before the Tribunal. Here, there is one clear decision of the Agency. It rejected Ms Bond’s claim for the Age Pension. The decision is intelligible. That is, in accordance with Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR1 64, the means employed to communicate the decision were intelligible to the person to whom the notice was given so that that person was informed of the making of the decision and the content of it.
It is unclear to the Tribunal whether, as submitted by Ms Bond, the requested documents she lodged were not accessed or considered by the Centrelink officer before a decision was made to reject her Age Pension claim. It may be that the documentation was not fully considered in the making of that decision. It appears on the evidence before the Tribunal that Ms Bond had in June 2017 provided a document in the form of a Loan Contract that referred to a mortgage she had agreed to provide to the other party, but her failure to provide a requested mortgage statement from that time was said in the Agency’s file notes to be the reason for its rejection of her Age Pension claim in October 2017. The notice of decision said the Agency could not pay Ms Bond the Age Pension because she had not replied to its correspondence. In this regard, the Agency rejected Ms Bond’s claim after, at times, apparent internal confusion as to its status.
Despite this, Ms Bond’s contentions regarding the potentially incorrect decision of the Agency to reject her Age Pension claim, or indeed the alleged non-decision of the Agency, due to, among other things, information not being considered and the unclear terms of the rejection decision, are all immaterial for the purpose of the date of effect provisions in the Administration Act and the Tribunal’s consideration in this proceeding. In this regard, the Respondent’s representative conceded that the Agency does, at times, make incorrect decisions and that this is the purpose of the review rights afforded a person under the legislation. A decision was made by the Agency and communicated to Ms Bond. It was unequivocal in rejecting her claim for the Age Pension. She did not seek review within 13 weeks. The Tribunal is limited under the legislation in what it can do in such circumstances. The date of effect provisions in the Administration Act deliberately contemplate and provide for the backdating of decisions in certain circumstances. In relation to a successful review requested within 13 weeks of a decision, payment can be backdated to the date a person made their claim for a social security payment. Outside of this legislated 13 week period, under subsection 107(3) of the Administration Act, the backdating can go no further than the date a review of the decision was requested. Unlike a review requested within 13 weeks of notice of a decision, it cannot be taken back to the date of the claim for a payment.
The Tribunal’s decision in Re SDSS and Manley [1995] AATA 559 is instructive. The Department made a decision in March 1993 regarding the rate of age pension based on an incorrect treatment of income from an allocated pension. It was not until September 1994 that the error was discovered, but the Department held that the resulting increase in pension could not be backdated to March 1993, because of the operation of section 107 of the Administration Act. The then Social Security Appeals Tribunal (SSAT) held that, as the advice given to Ms Manley in 1993 was based on incorrect information, the Department did not actually give her correct notice of her decision until September 1994. The Tribunal subsequently rejected this approach, noting that, while it may have been a way of overcoming a possible injustice, it did not accord with the Act. The relevant ‘decision’ in 1993 was the decision to vary the amount of pension payable and not, as the SSAT found, the decision to calculate pension on an incorrect factual basis.[54]
[54] See also Re Caporn and SDSS [1996] AATA 879.
In summary, for the aforementioned reasons, the Tribunal has found in this proceeding that the Agency made a decision rejecting Ms Bond’s claim for Age Pension.
Was Ms Bond given notice of the decision?
The Tribunal is satisfied that the Agency provided Ms Bond with notice of its rejection decision in October 2017; this was not in contention.
On 13 October 2017, a notice was sent by the Agency to Ms Bond’s postal address. Ms Bond accepted that she received the letter advising that her claim for Age Pension was rejected. Accordingly, pursuant to section 237 of the Administration Act, Ms Bond was given notice of the decision to reject her claim for Age Pension on 13 October 2017. Ms Bond also accepted that she was advised of her review rights in that correspondence, and had therefore been put on notice of the importance of requesting a review within 13 weeks.
Ms Bond sought to rely on the alleged ‘failure by the respondent to provide particulars of access to the documents as evidence that the documents were not considered in the making of the decision’. However, that contention is of no moment for the purpose of the application before the Tribunal. For the reasons set out above, the Tribunal has found that a decision was made by the Agency and notice of it was sent to Ms Bond. The notice stated that the Agency had rejected her claim for Age Pension and that if Ms Bond did not agree ‘with a decision we have made’ she had 13 weeks to request a review.[55] Ms Bond received the decision and did not apply for a review of that decision within the requisite 13 weeks in order for a successful claim to be backdated to the date of that claim, being 2017. It is, again, immaterial that there is disagreement regarding the decision made by the Agency. The Tribunal cannot disregard the legislative provisions established by the Parliament regarding the date of effect of a favourable decision following a review requested more than 13 weeks after notice of the decision is given to the person. In this way, the Tribunal cannot in this proceeding review the Agency’s decision to reject Ms Bond’s Age Pension claim. It is limited to the application of the date of effect provisions in the legislation. The date of effect is the date Ms Bond requested a review of the Agency’s decision.
[55] Exhibit R1, T15, pages 383-384.
When did Ms Bond request review of the decision?
The Tribunal is satisfied that Ms Bond did not seek review of the Agency’s rejection decision within the legislated 13 week period to allow any future favourable determination to take effect from the date she lodged her Age Pension claim in June 2017.
It was not until 2019 that Ms Bond made any contact with the Agency after receiving the notice of the decision to reject her Age Pension in October 2017. This chronology was not disputed by Ms Bond.[56] At this time, Ms Bond lodged a new claim for the Age Pension. It was not until 2 January 2020 that Ms Bond requested a review of the Agency’s decision in 2017 to reject her Age Pension.[57] In accordance with subsection 107(3) of the Administration Act, if more than 13 weeks has passed since the notice of decision was given, the favourable determination takes effect on the day on which the review was requested.
[56] Exhibit R1, T2 page 43 at [3].
[57] Exhibit R1, T37, page 661.
There is no requirement in the Administration Act or related legislation for a person to apply for review of a decision in any particular form of words. The Tribunal has previously accepted ‘a very broad definition’ of the term ‘application for review’.[58] An inquiry about a decision has been treated as an application for review.[59] In Ingram and Secretary, Department of Family and Community Services [2004] AATA 279 the Tribunal considered, at [28], that:
For that to be done, the Tribunal would need to be satisfied that the substance of the decision was referred to in such an inquiry.
[58] Secretary, Department of Social Security and Marsh [1996] AATA 669 at [14].
[59] See Frost and Secretary Department of Social Security (1995) AAT 10360 and Angel and Department of Family and Community Services [2001] AATA 292.
Additionally, in Threadgold and Secretary, Department of Social Services [2014] AATA 654, there was a dispute about the validity of a decision to cancel a payment. The Tribunal, at [15] to [16], relevantly found that:
Whether or not the decision to cancel was the correct decision is not a matter for this Tribunal to determine. The issue to [sic] the Tribunal is whether Ms Threadgold can be paid arrears of parenting payment between 15 May 2012 and 16 December 2012. The first date on which Ms Threadgold sought review of the decision to cancel her parenting payment was 17 December 2012. Subsection 109 (2) of the Administration Act provides that the earliest date from which payments could be made upon a favourable determination is the date upon which the application for review was made. This could not have occurred before 17 December 2012 when Ms Threadgold was re-granted parenting payment. Even if the decision to cancel Ms Threadgold’s parenting payment was made incorrectly, because she did not contact Centrelink or seek a review of the decision until 17 December 2012, the earliest date from which she could be paid parenting payment was in fact 17 December 2012.
The law does not permit any other outcome and for these reasons I determine to affirm the decision under review.
The Tribunal is not satisfied that Ms Bond’s contact with the Agency in 2019 in relation to making a new claim for Age Pension can be taken to be a request for review of the Agency’s 2017 rejection decision the subject of this proceeding. In Lamotte and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 978, the Tribunal found that a new claim cannot, of itself, amount to a request for review of a previous adverse decision by the Agency. It relevantly found that:[60]
While it is accepted that social security legislation is beneficial and should be construed generously and keeping in mind difficulties recipients can have with legislative provisions, there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe that it is incorrect. Simply applying for an alternative benefit cannot normally be accepted as a request for review of a decision to reject a prior claim.
[60] At [8].
On the evidence before the Tribunal, when Ms Bond contacted the Agency in 2019 regarding her new claim for the Age Pension she did not communicate any disagreement with the Agency’s 2017 rejection decision. For the purposes of subsection 129(1) of the Administration Act, regarding an application for review of a decision, Ms Bond’s request for review of the decision to reject her 2017 claim for Age Pension was only made on 2 January 2020, when she requested her Age Pension payments be backdated to the date of her earlier claim in June 2017. Plainly, Ms Bond’s request in 2020 was made after 13 weeks from the notice of the Agency’s rejection decision in October 2017. Accordingly, the earliest date that Ms Bond is entitled to be paid Age Pension under subsection 107(3) of the Administration Act in relation to her claim the subject of this proceeding is 2 January 2020.
The Tribunal in Re Bendovska and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 134 (Bendovska) correctly articulated the strict application of section 107 of the Administration Act, as follows:
10. Section 107(2), which the Department referred to in the Statement of Facts and Contentions effectively says that you must appeal from a decision made about a pension within 13 weeks. If you do not appeal within that time the decision is taken as being made and cannot be appealed against. That section of the Act has been considered a number of times by this Tribunal and also by the Federal Court of Australia.
…
11. These cases have a common theme and approach and this is summarised in the Bagh Case (Bagh v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 128):
The general rule in relation to the payment of social security entitlements is that if a person is qualified for a payment on the date upon which they lodge a written claim for that payment and their claim for the payment is granted, then they are paid the relevant entitlement from that day. Even where a person’s claim is rejected, they may still be paid from the date they lodged their claim if they challenge the decision rejecting their claim within 13 weeks of being notified of it, and that challenge is successful. However, where a person seeks a review of a rejection decision more than 13 weeks after being notified of that decision, then any decision granting their claim only takes effect from the date they sought review of the rejection decision.(Tribunal emphasis)
12. In this matter there is no disagreement that there was a notice given of the original decision. And the case law says, regardless of the particular circumstances, section 107 only allows a claim to be backdated where a request for review has been made within 13 weeks. It seems to me that the Applicant has provided some good reasons for not requesting a review of that decision within 13 weeks. It is understandable that the Applicant may have thought that she was receiving the pension as her name appeared on the pension card. It is also particularly difficult for Applicants in the Bendovskas’ situation where they do not understand English that well and where the correspondence might be confusing.
13. However, the legislation does not provide for any exceptions to that rule and accordingly the pension cannot be backdated to 2008 by this tribunal. I note, however, that the Applicant may choose to pursue an Act of Grace payment through the Department of Finance scheme and I understand also that the Applicant been given some documentation in relation to pursuing an Act of Grace payment.
Can Ms Bond’s medical conditions be taken into account?
For completeness, and in circumstances where Ms Bond applied to the Tribunal based on the contention that her medical conditions had not been taken into account by the AAT1, the Tribunal finds that there are no special circumstances or backdating provisions under the relevant legislative instruments allowing Ms Bond’s personal circumstances to be considered, in addition to her stated misinterpretation of the claim process or failure to request a review within 13 weeks after receipt of the Agency’s decision. As unfortunate as these medical and other circumstances may have been in and around the time of the Agency’s rejection decision in 2017, these are immaterial to the application of the legislative provisions regarding the date of effect of a favourable determination regarding Ms Bond’s Age Pension claim. The aforementioned case of Bendovska confirms there are no exceptions to the rule in section 107 of the Administration Act. As a result, there is no discretion for the Tribunal to consider whether Ms Bond’s medical conditions prevented her from applying for a review of the Agency’s decision in the required time so as to allow payment of the Age Pension to be backdated to June 2017.
Is there another avenue for Ms Bond to seek relief?
Having regard to the particular circumstances of this application described by the Tribunal in these reasons, it is open to Ms Bond to apply for financial assistance under the ‘Scheme for Compensation for Detriment caused by Defective Administration’ (known as the CDDA Scheme).[61] The CDDA Scheme is a discretionary mechanism available to Commonwealth entities, such as the Agency, allowing the payment of compensation when a person or organisation has suffered detriment as a result of the entity’s defective administration, when there is no legal requirement to make a payment.
[61]
The CDDA Scheme operates on the basis of authority provided to individual portfolio ministers under the executive power of sections 61 and 64 of the Constitution and portfolio ministers decide applications made under the CDDA Scheme, although this power may be delegated to an official in their portfolio. The Department of Finance website states that:[62]
The CDDA Scheme provides that if a minister or an official authorised by the minister forms an opinion that an official of the entity, acting, or purporting to act, in the course of duty, has directly caused a claimant to suffer detriment, or, conversely, prevented the claimant from avoiding detriment, due to:
·a specific and unreasonable lapse in complying with existing administrative procedures that would normally have applied to the claimant's circumstances
·an unreasonable failure to institute appropriate administrative procedures to cover a claimant's circumstances
·giving advice to (or for) a claimant that was, in all circumstances, incorrect or ambiguous
·an unreasonable failure to give to (or for) a claimant, the proper advice that was within the official's power and knowledge to give (or was reasonably capable of being obtained by the official to give) the minister or the authorised official may authorise a payment to the claimant.
The CDDA Scheme is permissive, in that it does not oblige the decision-maker to approve a payment in any particular case. However, the decision to approve or refuse a payment must be publicly defensible, having regard to all the circumstances of the matter.
[62] ibid.
CONCLUSION
The legislative provisions regarding the date of review and date of effect in the Administration Act are not flexible or discretionary so as to allow payment of the Age Pension to Ms Bond from a date earlier than 4 July 2019.
Because Ms Bond did not seek review within 13 weeks of being given the Agency’s decision dated 13 October 2017, which rejected her claim for Age Pension, the date of effect for any subsequent payment following a decision that the payment be granted is the date of her requested review, being 2 January 2020. However, in circumstances where, due to a separate claim, Ms Bond was granted the Age Pension from an earlier date than 2 January 2020, being 4 July 2019, a favourable determination in relation to this application would have no practical effect. That is, payment of the Age Pension to Ms Bond could start no earlier than 4 July 2019.
DECISION
For the reasons set out above, the Tribunal affirms the AAT1 decision of 15 June 2020 pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
..................................[sgd]......................................
Associate
Dated: 25 May 2021
Date of hearing: 25 February 2021 Date final submissions received: 18 February 2021 Solicitor for Applicant: Mr Stephen Hodges, Hodges Legal Solicitor for Respondent: Mr Kelvin Defranciscis, Services Australia
Australian Government, ‘Act of grace payments, waiver of debts to the Commonwealth, Compensation for Detriment caused by Defective Administration (CDDA)’ (Department of Finance) <
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