Boyton and Secretary, Department of Social Services (Social services second review)

Boyton and Secretary, Department of Social Services (Social services second review) [2019] AATA 775 (1 May 2019)
Division:GENERAL DIVISION
File Numbers: 2018/4465 and 2018/4515
Re:Warwick and Joanne Boyton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:1 May 2019
Place:Brisbane

The Tribunal sets aside the decision under review and substitutes it with a decision that the Applicants are entitled to a higher rate of Age Pension and Carer Payment from 20 March 2017.
............................[SGD]............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – age pension – date of effect of favourable determination – whether section 43(6) of the Administrative Appeals Tribunal Act 1975 applies – decision under review set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Otter Gold Mines Ltd v Australian Securities Commission and Others (1997) 26 AAR 99
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Secretary, Department of Social Security v Geoffrey Hodgson [1992] FCA 338; (1992) Assc 92-126; (1992) 108 ALR 322; (1992) 15 AAR 563; (1992) 37 FCR 32; (1992) 27 ALD 309
SECONDARY MATERIALS
Guides to Social Security Law: Social Security Guide (released 20 March 2019) (Cth)
REASONS FOR DECISION
Member D K Grigg
1 May 2019
INTRODUCTION

On 1 May 2012 Mr Warwick Boyton (“Mr Boyton”) was granted a Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T41, page 186, Centrelink record.
In May 2012 Mr Boyton lodged a Mod R Real estate details form with Centrelink which indicated that he had an interest in a non-operational farming property in New South Wales which had an estimated current market value of $1,750,000. The estimate of the value of the home and surrounding 2 hectares (5 acres) was $1,235,000 (“the Property”).[2]
[2] Exhibit 1, T Documents, T5, pages 26–33, Mod R – Real estate details form dated 23 May 2012.
In June 2012 Mrs Joanne Boyton (“Mrs Boyton”) lodged:
(a)A Mod PC Private company details form with Centrelink which indicated that:[3]
(i)she was the secretary of a company called Ausprawns Pty Ltd;
(ii)her husband was the director of the company;
(iii)she owned 2 ordinary shares in the company with a value of $4;
(iv)her husband owned 998 ordinary shares with a value of $1,996;
(v)the company owned plant and equipment worth $50,630 and vehicles worth $28,950; and
(vi)the company owns the Property; and
(b)a Mod R Real estate details form with Centrelink which indicated that she had an interest in the Property which had an estimated value of $1,750,000.[4]
[3] Exhibit 1, T Documents, T6, pages 34–48, Mod PC – Private company details form dated 1 June 2012.
[4] Exhibit 1, T Documents, T7, pages 49–56, Mod R– Real estate details form dated 4 June 2012.
On 25 June 2012 after the MOD R forms had been received, a Complex Assessment Officer at Centrelink determined that the balance of the asset value ($1,750,000 - $1,235,000)[5] was $515,000.[6]
[5] This amount represents the house and curtilage value.
[6] Exhibit 1, T Documents, T47, page 308, Centrelink record.
On 23 July 2012 Mrs Boyton was granted a Carer Payment from 1 July 2012. Her Carer Payment was calculated on the basis that she had total combined assets of $620,045.[7] Centrelink advised Mrs Boyton that if she did not agree with the decision she should contact Centrelink as soon as possible and, if a request for a review is not made within 13 weeks after being notified and the decision can be changed, she may only receive her entitlement from the date she requested the review.[8]
[7] Exhibit 1, ST Documents, ST4, page 43, Centrelink notice dated 23 July 2012.
[8] Exhibit 1, ST Documents ST4, page 45, Centrelink notice dated 23 July 2012.
Numerous notices were sent to Mrs Boyton between 2012 and 2017 setting out the rate of payment and the asset value upon which her Carer Payment was being calculated.[9]
[9] Exhibit 1, ST Documents, ST8, ST10, ST13, ST16, , ST22, ST26, ST29 and ST31, pages 52-55, 57-58, 63-65, 69-71, 84-86, 93-95, 101-103 and 107-109 Centrelink Notices dated 1 October 2013, 10 October 2013, 14 July 2014, 14 July 2015, 12 July 2016, 30 December 2016, 11 January 2017 and 11 July 2017.
On 24 September 2012 Mr Boyton applied to transfer from the DSP to the Age Pension.[10] In his letter to Centrelink Mr Boyton wrote that he had been told to include evidence that he had owned the Property for over 20 years when applying for the transfer from the DSP to the Age Pension. Mr Boyton attached a document indicating when he originally purchased the property (22 October 1986) which he says was presented to Centrelink at the time he originally applied for the DSP. Mr Boyton also advised that the Property was currently for sale.[11]
[10] Exhibit 1, T Documents, T10, pages 62–66, Transfer to Age Pension form dated 24 September 2012.
[11] Exhibit 1, T Documents, T9, pages 60-61, letter from Mr Boyton to Centrelink dated 24 September 2012.
On 8 November 2012 Mr Boyton’s DSP was cancelled because he turned 65 years of age and he was automatically transferred to the Age Pension.[12] His Age Pension was calculated on the basis that his total combined assets totalled $620,045.[13] Centrelink advised Mr Boyton that if he did not agree with the decision then to contact the Department as soon as possible and, if a request for a review is not made within 13 weeks after being notified and the decision can be changed, he may only receive his entitlement from the date he requested the review. Numerous notices were sent to
[12]    Exhibit 1, T Documents, T41, page 187, Centrelink record.
[13]    Exhibit 1, T Documents, T11, pages 67–69, letter from Centrelink to Mr Boyton dated 25 October 2012.
[14]    Exhibit 1, T Documents, T16, T20, T24, T25, T26, T28, T31, and T34 pages 89-90, 97-99, 109-111, 112-114, 115-117, 121-123, 147-149, and 154-155 Centrelink Notices dated 1 October 2013, 14 July 2014,
Mr Boyton between 2012 and 2017 setting out the rate of payment and the asset value upon which his Age Pension was being calculated.[14]
Mr and Mrs Boyton were struggling financially on the amount of pension they received so in August 2013 Mr and Mrs Boyton filed a request for payment under the Pension Loan Scheme (“the Scheme”).[15] The Scheme is a voluntary reverse equity mortgage which can be used to top up the amount of pension being received. Centrelink advised Mr and Mrs Boyton on 1 October 2013, that a decision had been made to grant payment under the Scheme from 12 August 2013 in the amount of $289.12 per fortnight and that they had a maximum loan available under the scheme of $160,950.00.[16]
[15] Exhibit 1, T Documents, T14, pages 78–84, Request for payment under the Pension Loan Scheme dated 19 August 2013.
[16] Exhibit 1, T Documents, T15, pages 85–88, Letter from Centrelink to Mr Boyton dated 1 October 2013.
As Director and Secretary of Ausprawns, they gave the Commonwealth a guarantee that Ausprawns would pay any debt that became payable by Mr and Mrs Boyton as a result of their participation in the Scheme. The guarantee provided by the company would be secured by a charge over the Property.[17]
[17] Exhibit 1, T Documents, T12, page 75, Company guarantee to pay any Pension Loan Scheme debt to the
Commonwealth dated 14 October 2013.
In April 2014 Centrelink advised Mr Boyton that in order to receive repayments under the Scheme, Centrelink was required to place a charge over the Property to provide security for the loan and that he was responsible for the cost involved in registering the charge totalling $240.85.[18]
[18] Exhibit 1, T Documents, T19, pages 93–96, Letter from Centrelink to Mr Boyton dated 22 April 2014.
In September 2014 (and in November 2016) Mr Boyton was sent Centrelink Statements for his Age Pension, which showed his regular rate of payment and the asset details recorded for him by Centrelink. These notices informed him that he must contact Centrelink within 14 days if circumstances changed.[19]
[19] Exhibit 1, T Documents, T21, pages 100-102; T22, page 103-105; T27, pages 118-120
Mrs Boyton wrote to Centrelink on 13 November 2014 requesting that the caveat over the Property be lifted as they were trying to refinance in order to consolidate their credit card and overdraft into one loan in order to reduce their repayment obligations.[20]
[20] Exhibit 1, T Documents, T23, pages 106–108, Statement to Centrelink by Mrs Boyton dated 30 November 2014.
On 4 May 2017 Mrs Boyton contacted Centrelink by telephone. In relation to the Property, Mrs Boyton ‘thought they may be entitled to have [the Property] assessed under the extended curtilage provisions.[21]
[21] Exhibit 1, T Documents, T46, page 293, Centrelink record.
On 22 May 2017 Mrs Boyton sent a letter to Centrelink regarding a “request to change banks and transfer the Pensions Loans Scheme caveat/conversation of 4 May 2017”.[22]
[22] Exhibit 1, T Documents, T30, pages 127-133, Correspondence from Mr and Mrs Boyton to Centrelink dated 22 May 2017.
On 24 July 2017 Centrelink advised Mr Boyton that a decision had been made that they were no longer eligible for payments under the pension loan scheme as the rate of their Age Pension and carer payments were was no longer being reduced by the income or assets test.[23] That is, Centrelink determined that the extended land use provisions applied which meant that the value of the Property was no longer taken into account in determining the amount of pensions payable. As the Property value was no longer impacting on their rates of pay, their pensions increased, and they no longer required access to the pension loan scheme.
[23] Exhibit 1, T Documents, T32, pages 150–152, Letter from Centrelink to Mr Boyton dated 24 July 2017.
Mrs Boyton wrote to Centrelink on 27 November 2017 to say thank you for removing the Pensions Loan Scheme but stating that “no bank or entity will consider us because the caveat” that remains on the Property.[24]
[24] Exhibit 1, T Documents, T33, page 153, Letter to Centrelink from Mrs Boyton dated 27 November 2017.
On 5 December 2017 Mrs Boyton sent a letter to Centrelink requesting that arrears of their pensions be backdated to 8 November 2012, when Mr Boyton transferred to the age pension, given that the extended land use provisions should have been applied.[25]
[25] Exhibit 1, T Documents, T46, page 297, Centrelink record.
On 10 February 2018 Centrelink wrote to Mrs Boyton and advised that her Carer Payment was now being calculated on the basis that she had total combined assets of $105,045.[26]
[26] Exhibit 1, ST Documents, ST32, pages 110-111, Letter from Centrelink to Mrs Boyton dated 10 February 2018.
On 10 February 2018 Centrelink wrote to Mr Boyton and advised that his Age Pension was now being calculated on the basis that he had total combined assets of $105,045.[27]
[27] Exhibit 1, T Documents, T34, pages 154–155, Letter from Centrelink to Mr Boyton dated 10 February 2018.
CLAIM HISTORY
On 17 April 2018 the matter was referred to an Authorised Review Officer (“ARO”).[28] In May 2018 the ARO determined that the extended curtilage provisions should have been applied to Mr and Mrs Boyton in 2012 but that arrears could not be paid prior to 22 May 2017 due to the operation of section 109 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).[29]
[28] Exhibit 1, T Documents, T35, page 156, Letter from Centrelink to Mr Boyton dated 17 April 2018; ST33, page 112, Letter from Centrelink to Mrs Boyton dated 17 April 2018.
[29] Exhibit 1, T Documents, T37, pages 158–165, Authorised Review Officer’s Decisions and Notes dated 1 May 2018; ST34, pages 113-120, Authorised Review Officer’s Decisions and Notes dated 1 May 2018.
On 25 May 2018 Mr and Mrs Boyton lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[30] The SSCSD affirmed the ARO’s decision on 12 July 2018.[31]
[30] Exhibit 1, T Documents, T38, page 166–172, Application to SSCSD dated 25 May 2018; ST35, pages 121-126, application to SSCSD dated 25 May 2018.
[31] Exhibit 1, T Documents, T2, pages 6–10, SSCSD’s Decision and Reasons for Decision dated 12 July 2018.
Mr and Mrs Boyton have sought a review of the SSCSD’s decision by this Tribunal.[32] Mr and Mrs Boyton contend that it was Centrelink’s error that resulted in their needing to access the Scheme and that if their entitlements had been assessed correctly, under the extended land use provisions, they would not have a pension loan debt.
[32] Exhibit 1, T Documents, T1, pages 1–6, Application for Second Review of a Decision dated 9 August 2018; ST36, pages 127-128.
ISSUES FOR DETERMINATION
The following issues must be determined:
(a)whether Mr Boyton can be paid an increased rate of Age Pension earlier than
22 May 2017; and
(b)whether Mrs Boyton can be paid an increased rate of Carer Payment earlier than 22 May 2017.
This involves determining:
(a)whether the Property’s value should have been taken into account in calculating the rates of payment or whether the extended land use provisions apply;
(b)whether the Applicants were given notice of the decision;
(c)when the Applicants requested a review of the decision; and
(d)whether the Tribunal’s discretionary power to otherwise order, contained in section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) permits the Tribunal to backdate the effect of its decision to a date prior to that determined by the date of effect provisions as contained in the Administration Act; and, if yes
(e)whether the discretionary power should be exercised.
WHEN DID MR BOYTON SATISFY THE EXTENDED LAND USE PROVISIONS?
The rates at which people (who are not permanently blind) are paid an Age Pension and Carer Payment is determined using the Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991 (Cth) (“Act”) and is affected by, among other things, a person’s income and the value of their assets.[33] The maximum basic rate payable varies depending upon a person’s family situation.[34] Some assets, such as a person’s principal home is not taken into account.[35] “Principal home” is defined in section 11A of the Act relevantly as follows (emphasis added):
[33] Sections 55(a) and 210, of the Act.
[34] Section 1064-B1, of the Act.
[35] Section 1118 of the Act relevantly provides:
Certain assets to be disregarded in calculating the value of a person's assets
(1) In calculating the value of a person's assets for the purposes of this Act… disregard the following:
….
(b) if the person is a member of a couple--the value of any right or interest of the person in one residence that is the principal home of the person, of the person's partner or of both of them that is a right or interest that gives the person or the person's partner reasonable security of tenure in the home;
…
(1)A reference in this Act to the principal home of a person includes a reference to:
(a)if the principal home is a dwelling-house--the land adjacent to the dwelling-house to the extent that:
(i) the land is held under the same title document as the land on which the dwelling-house is located; and
(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land;
…
Private land use test
(3) The private land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling-house, is not more than 2 hectares; and
(b) the land is used primarily for private or domestic purposes in association with the dwelling-house.
To whom does the extended land use test apply?
(4) The extended land use test applies to a person in relation to land adjacent to the dwelling-house if:
(a) the person has reached pension age; and
(b) the person is qualified for an age pension or carer payment and that pension or payment is payable to the person; and
(c) the dwelling-house has been the person's principal home for 20 years or more continuously.
(5) Where a person (the first person) to whom the extended land use test applies in relation to land adjacent to the dwelling-house in which the person lives is a member of a couple:
(a) the extended land use test applies to the first person's partner (the second person ); and
(b) the extended land use test continues to apply to the second person if the first person and the second person cease to be members of a couple for any reason, provided the dwelling-house continues to be the second person's principal home.
Extended land use test
(6) The extended land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling-house, is more than 2 hectares; and
(b) the Secretary determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.
For the Applicants to satisfy the extended land use test, a dwelling on the Property must have been Mr Boyton’s principal home for 20 years or more continuously.
The Guides to Social Security Law: Social Security Guide, released 20 March 2019 (“the Guide”) sets out in section 4.6.8.60 that:
The long term (20-year) continuous attachment applies to income support recipients who:
§ currently own their principal home, AND
§ have lived in that principal home continuously for a period of 20 years immediately prior to the date of assessment, OR
§ have lived on the one property (including those held on multiple adjoining titles) continuously for a period of 20 years immediately prior to the date of assessment.
Explanation: An income support recipient can satisfy the long term (20-year) continuous attachment by one of the following:
§ Having owned and lived in their principal home on one title for 20 continuous years immediately prior to the date of assessment.
§ Having lived in their principal home on one title for 20 continuous years immediately prior to the date of assessment, but have owned the property for less than 20 years.
§ Example: A pensioner has lived in the farm home for more than 20 years. The transfer of control of the farm, including the home, to the farmer occurred 13 years ago. Given the farmer has owned the home for 13 years but has lived in the home for more than 20 years, the long-term continuous attachment has been met.
§ Having owned the property on one title for 20 years immediately prior to the date of assessment, and have continuously lived on that property, in more than one dwelling-house, for the last 20 years.
§ Example: A pensioner has owned his farm on one title for more than 20 years. The farmer lived in an old farmhouse for 50 years. The farmer built a new house on the farm 15 years ago. In this case the long-term continuous attachment has been met.
It is not in dispute that pursuant to the Guide Mr Boyton can still satisfy the extended land use provisions even though he has resided in different dwellings on the one property.
The letter Mr Boyton sent to Centrelink dated 24 September 2012 attached a document indicating that Mr Boyton purchased the Property on 22 October 1986.[36] It is not in dispute that Centrelink received that document. However, the Respondent submits that ownership of the land is not evidence that the Property was Mr Boyton’s principal home.
[36] Exhibit 1, T Documents, T9, pages 60–61, Letter from Mr Boyton to Centrelink dated 24 September 2012.

The decision made by Centrelink following Mr Boyton’s letter was made on 25 October 2012. That decision took the form of a notice which set out that Mr Boyton’s rate of Age Pension was calculated on the basis that his total combined assets totalled $620,045.[37] In other words, Centrelink determined that Mr Boyton did not meet the extended land use test at that time.
[37] Exhibit 1, T Documents, T11, pages 67–68, Letter from Centrelink to Mr Boyton dated 25 October 2012.
The Applicants say they thought all they had to provide Centrelink, in order to demonstrate the continuous use of the Property, was to provide confirmation of the date the Property was purchased.
Mrs Boyton says Centrelink did not decide Mr Boyton was not qualified but rather that Centrelink made a coding error. There is no corroborating evidence that a coding error was made.
Centrelink valued the Property as at 8 June 2012 and considered that the building on the Property was built in 2000.[38] This information was provided by Mr Boyton and Mrs Boyton in the Mod R forms. The Mod R forms completed by Mr and Mrs Boyton state that as at 2012, the house on the property was 12 years old and the shed on the property was 12 years old.[39] This means that the structures were built in 2000. Mrs Boyton told the Tribunal that the Mod R form referred to when they moved into their house. It was not a reference to when Mr Boyton moved into the original shed.[40]
[38]    Exhibit 1, T Documents, T8, pages 57-59, Real Estate Details Listing.
[39]    Exhibit 1, T Documents, T5, pages 26–33, Mod R– Real estate details form dated 23 May 2012; Exhibit 1, T Documents, T7, pages 49 – 56, Mod R– Real estate details form dated 4 June 2012.
[40]    Exhibit 3, Applicant’s reply to Respondent’s Statement of Facts Issues and Contentions (Undated)
If the dwellings were built in 2000, this would mean that Mr Boyton would not satisfy the requirement in section 11A(4) of the Act of having continuously resided on the Property for 20 years until 2020.
Mrs Boyton told the Tribunal that Mr Boyton had lived on the Property since 1988. At that time she says he lived in an existing shed on the Property.
Mrs Boyton advised Centrelink in May 2017 that they moved in to their residence 21 years ago, in 1996, even though they had run out of money to complete the necessary renovations and repairs.[41] Mrs Boyton says this was a reference to the house being constructed on the Property, and was not a reference to the shed that Mr Boyton had previously resided in since 1988.
[41] Exhibit 1, T Documents, T30, pages 127-133, Letter to Centrelink from Mrs Boyton dated 22 May 2017.
In October 2018 Mrs Boyton submitted that Mr Boyton had lived in a former dairy shed on the property since 1988, and during this time he farmed the property as a cane farmer.[42]
[42] Exhibit 4, Submission from Applicant received 15 October 2018.
Mrs Boyton provided the following documents:
(a)a rate notice dated 1988;
(b)an invoice for fertiliser for the property dated 8 September 1990;
(c)a site plan of the property drawn in 1995 which shows the shed where Mr Boyton purportedly lived;
(d)photographs of the Property showing the location of the shed in which Mr Boyton lived in 1988;
(e)a letter from Northern Rivers Electricity dated 22 November 1991 confirming that Mr Boyton had applied for “the extension of electricity to a shed and future residence” on the property.[43] Mr Boyton says this was for the second shed and house;
(f)
a letter from Northern Rivers Electricity dated 29 January 1992 confirming that

Mr Boyton’s application for the extension of electricity to a shed and future residence on the Property had been accepted;[44]
(g)a letter from Crown Lands Service regarding a development application lodged in July 1995 to build a dwelling house and farm shed on the Property;[45] and
(h)a letter from North Power in June 1996 confirming that Mr Boyton had installed a Remote Area Power System on the property to supply electricity.[46]
[43]    Exhibit 1, T Documents, T30, page 142, Letter to Centrelink from Mrs Boyton dated 22 May 2017.
[44]    Exhibit 4, Submission from Applicant received 15 October 2018.
[45]    Exhibit 1, T Documents, T30, page 135, Letter to Centrelink from Mrs Boyton dated 22 May 2017.
[46]    Exhibit 1, T Documents, T30, page 136, Letter to Centrelink from Mrs Boyton dated 22 May 2017.
The Tribunal can understand why it may be difficult to obtain corroborating Documents dating as far back as 1988. While there is no document which corroborates that Mr Boyton had lived on the property continuously since 1988, the Tribunal accepts Mrs Boyton’s evidence that this was the case. It is not in dispute that Mr Boyton was operating the farm in 1988. As the sole operator of the farm Mr Boyton would have to be at the Property regularly, if not daily. There is no evidence to demonstrate that Mr Boyton lived anywhere other than the Property from 1988 and continuously since then.
Given the evidence that is available, the Tribunal accepts that Mr Boyton lived continuously on the Property from 1988. This means Mr and Mrs Boyton would have satisfied the extended land use provisions in November 2012 and should have been paid a higher rate of Age Pension and Carer Payment. Mr and Mrs Boyton would not have had to access the Scheme if they had been paid correctly from November 2012.
DATE OF EFFECT OF FAVOURABLE DETERMINATION RESULTING FROM REVIEW
Pursuant to section 123(3)(a) of the Administration Act, when a determination is made about the rate of a social security payment, such as the Age Pension, that determination continues in effect until, a further determination is made under section 78. Section 78 of the Administration Act provides that if the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for, the Secretary must determine that the rate is to be increased to the rate provided for by the Social Security law and specify the rate in the determination.[47] A determination made under section 78 is referred to in the Administration Act as a “favourable determination”.[48]
[47] Section 78, of the Administration Act.
[48] Section 108, of the Administration Act.
Section 109 of the Administration Act, which is relevant here, specifies the day on which favourable determinations will take effect. If the request for a review of a favourable determination is made within 13 weeks, section 109(1) provides that:
(1) If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person 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) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
Pursuant to section 109(2) of the Administration Act, favourable determinations take effect on the day on which an application for review of the decision is made if:
(a)    a decision (the original decision) is made in relation to a person's social security payment; and
(b)    a notice is given to the person informing the person 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)    the favourable determination is made as a result of the application for review;
On 22 May 2017 a favourable determination was made to increase the rate of Age Pension and Carer Payment payable to the Applicants taking into account the extended land use test.
However, the Secretary informed the Tribunal that the Applicants’ rate of Age Pension increased during the arrears period in March and September of each year, comprising of indexed and adjusted amounts pursuant to section 1190 of the Act. These increases are favourable determinations. In that instance, section 109(7) of the Administration Act provides that the Applicants are deemed to have been given notice of the determination and the increased rate.
A rate increase was made on 20 March 2017. Therefore, the decision being reviewed is the decision to increase the rate of payment on 20 March 2017.
Were the Applicants given notice: section 109(2)(b) of the Administration Act?
It is not in dispute that the Mr and Mrs Boyton were given notice of Centrelink’s original decisions to calculate their pensions taking into account, among other things, the value of the Property.
The notices provided information regarding how the pensions had been calculated and set out the combined asset and income total.
Pursuant to section 109(7) of the Administration Act, the Applicants are deemed to have been given notice of this decision and the increased rate on 20 March 2017.
Therefore, section 109(1)(b) of the Administration Act is satisfied.
The date the Applicants applied for a review of a decision?
Mrs Boyton says she requested a review prior to receiving the notice in October 2012 and that the September 2012 letter is a request for review.
This letter cannot constitute a request for review for the purpose of section 109 of the Administration Act because at that date a decision had not been made. Decisions have to be in writing.[49]
[49] Section 236, of the Administration Act.
Mrs Boyton explained that once they received the October notice, they had no reason to query the calculations made by Centrelink. While that is completely understandable, it does not assist them.
Mrs Boyton says they were ill-advised by Centrelink and were not aware that they had any grounds to appeal any of the Centrelink’s determinations. She also submitted that she requested a review of Centrelink’s decision in 2012 when she telephoned Centrelink and provided evidence of “scribble notes” she says she took during the telephone call with a Centrelink officer. There is no corroborating evidence that this telephone conversation took place.
The Tribunal is not satisfied that a request for review was made by the Applicants prior to 2017.
The date of request of review was 4 May 2017, which is within the 13 weeks of 20 March 2017. Therefore, pursuant to section 109(1) of the Administration Act, the favourable determination takes effect on the day on which the determination embodying the original decision took effect. That is the back pay should have been dated back to 20 March 2017. The decision under review will need to be set aside.
THE TRIBUNAL’S DISCRETIONARY POWER
The only possible way in which Mr Boyton can be paid arrears earlier than 20 March 2017 is if the Tribunal has the power to make a different order under section 43(6) of the AAT Act.
Section 43(6) of the AAT Act
Pursuant to section 43(1) of the AAT Act, the AAT has the power to affirm, vary, set aside, make a decision in substitution of, or remit a decision under review. The AAT “stands in the shoes of the decision-maker and, on the material before it, makes the ‘correct or preferable’ decision”.[50]
[50] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane CJ.
The Full Federal Court in Otter Gold Mines Ltd v Australian Securities Commission and Others (1997) 26 AAR 99 said at 106:
‘When reviewing an administrative decision under s 43(1) the AAT stands in the place, and is empowered to exercise all of the relevant powers and discretions, of the decision-maker in respect of the decision under review. The AAT hears the matter de novo in the light of the evidence placed before it.’
(my emphasis)
Section 43(6) of the AAT Act then goes on to provide for what happens if a decision of a decision-maker is varied or substituted:
(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
(my emphasis)
Section 43(6) of the AAT Act only applies where the Tribunal is:[51]
(a)varying a decision; or
(b)substituting a decision.
[51] See Thompson and Secretary, Department of Social Services [2017] AATA 1638, at [21]-[22].
Pursuant to section 25 of the AAT Act the Tribunal can review decisions made in the exercise of powers conferred by an Act, in this case the Social Security Act.
In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 91, Davies J explained that “[t]he Act empowers the Tribunal to exercise all the powers and discretions that are conferred by any relevant enactment upon the person who made the subject decision.” While, in some cases, such as this, additional material not available to the original decision maker can be considered by the Tribunal,[52] this does mean that the Tribunal can exercise a power beyond that of the original decision maker as conferred by the relevant legislation.
[52] See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[1979] FCA 21; (1979) 24 ALR 307 at 335; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Shi v Migration Agents Registration Authority [2008] HCA 31, at [60].
In Re Secretary, Department of Social Security v Geoffrey Hodgson [1992] FCA 338; (1992) Assc 92-126; (1992) 108 ALR 322; (1992) 15 AAR 563; (1992) 37 FCR 32; (1992) 27 ALD 309, Hill J explained:
‘Where its jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision maker was entrusted to do.’
(my emphasis)
The effect of the decision being made by this Tribunal is to grant the Applicants a higher rate of pension from 20 March 2017 pursuant to section 109 of the Administration Act. The limits of this review are those set out in section 109 of the Act.
The Social Security Act and the Administration Act do not permit the decision to take effect in this case from an earlier date. There is no discretion to order otherwise.
DECISION
The decision under review is set aside and substituted with a decision that the Applicants are entitled to a higher rate of Age Pension and Carer Payment from 20 March 2017.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[SGD].........................................
Associate
Dated: 1 May 2019

Date of hearing: 22 March 2019

Applicant: In person

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

14 July 2015, 13 January 2016, 12 July 2016, 30 December 2016 11 January 2017, 11 July 2017, and 10 February 2018.

[2019] AATA 775

1 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Date of hearing:	22 March 2019
Applicant:	In person
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers