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

[2017] AATA 516

Bridson and Secretary, Department of Social Services (Social services second review) [2017] AATA 516 (24 March 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1013

Re:Andrew Bridson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:N Gaudion, Member

Date:24 March 2017

Date of written reasons:        21 April 2017

Place:Sydney

For the reasons given orally at the conclusion of the hearing, the Tribunal decides that:

1.the reviewable decision is set aside.

2.the matter is remitted to the Respondent for reconsideration, with a direction that the reconsideration be undertaken in light of the Tribunal’s finding that during the period 4 to 14 July 2014 the Applicant provided notification to the Respondent of the matters set out in the Applicant’s letter dated 1 July 2014.

............................[sgd]............................................

N Gaudion, Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – date on which the applicant provided notification of a change in circumstances – decision under review set aside and remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 43(2A)

Social Security (Administration) Act 1999, s 109; s 110

REASONS FOR DECISION

N Gaudion, Member

21 April 2017

1. At the conclusion of the hearing of the above matter heard on 24 March 2017, the terms of the decision intended to be made and the reasons for that decision were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after. On 27 March 2017 the Respondent, pursuant to s 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal provide written reasons for its decision.  The written reasons are set out below. 

   INTRODUCTION

2. On 21 January 2014, the Applicant was granted age pension with a date of effect of 21 November 2013.  The Applicant’s rate of age pension was initially calculated based on information provided at the time of the application.

3. The Applicant’s circumstances changed a number of times in the 12 months following the initial application.  The Applicant provided various notifications to Centrelink of his change of circumstances.  The Applicant requested the calculation of his pension to be reviewed.  The result of the review process was that the Applicant’s pension was ultimately recalculated taking into account all but one of the notifications, being a letter dated 1 July 2014 that the Applicant asserts to have provided to Centrelink on or around 4 July 2014.

   THE ISSUE

4. The critical issue in this matter is whether or not the information that was contained in the letter from the Applicant, dated 1 July 2014, was notified to Centrelink on or around 4 July 2014.

5. The information set out in the Applicant’s letter dated 1 July 2014 included the following notifications and was therefore relevant in the calculation of his pension entitlements:

   (a)That the loan that was outstanding at the time of the pension application has now been repaid;

   (b)As at 30 June 2014 the Applicant received a wage bonus of $8,000;

   (c)From 1 July 2014 the Applicant’s salary has been reduced to $250 per week; and

   (d)The Applicant’s superannuation fund balance had been reduced to $33,012 with the reduction being as a result of money being paid to the Applicant by the fund. The money was expended to refurbish the Applicant’s home.

6. The date on which the Applicant notified Centrelink of the above changes in his circumstances is relevant. 

7. Section 110 of the Social Security (Administration) Act 1999 (“the Administration Act”) provides rules relating to the date and effect of an increase in a person’s payment. Relevantly, s 110(1) provides that where a person advises the Department of an event or a change in circumstance that results in an increase in payments, the increase occurs from the day on which the person informed the Department of the event or change, or the day on which the event or change occurred, whichever is the later.

8. Section 109 of the Administration Act provides the rules for the date of effect of favourable decisions made as a result of a review. Subsection 109(2) provides that where a person is given notice about a decision in relation to their social security payment and does not request a review within 13 weeks, then any increase in payment can occur only from the date the review is requested. If a review is requested within 13 weeks, the date of effect of a favourable determination will be the date of the original decision.[1]

   [1] Social Security (Administration) Act 1999, s 109(1).

   MATTERS RELATING TO THE DATE OF NOTIFICATION

9. The Respondent states at paragraph [6.18] of its Statement of Facts, Issues and Contentions that:

   The Applicant has provided a letter dated 1 July 2014 advising that his wages had reduced to $250 per week from 1 July 2014.  The Secretary accepts that this could be taken as a request for review.  However, Centrelink’s systems reveal no evidence that this document was uploaded correctly.  In particular, the Applicant has been unable to produce any electronic receipt to establish that Centrelink received this information.  On the basis of the available evidence, the Secretary contends that the letter dated 1 July 2014 was not received by Centrelink and, therefore, cannot be taken as a request for review. (emphasis added, footnotes omitted)

10. The Respondent’s assertion that “the letter dated 1 July 2014 was not received by Centrelink” is incorrect. The letter has been received by Centrelink.  The question is on what date did the Applicant provide the letter to Centrelink.

11. At paragraph [19] of the Administrative Appeals Tribunal – Social Services & Child Support Division (AAT1) decision in this matter there is reference to Centrelink acknowledging receipt of the Applicant’s letter dated 1 July 2014 on 1 July 2015.[2]  During the hearing, the Respondent’s representative also made reference to the letter being received by Centrelink on or around 1 July 2015.

    [2] T-documents,T2-5.

12. Centrelink’s records confirm that during a telephone discussion on 20 June 2015 the Applicant emailed a copy of the letter to Centrelink when he became aware that it appeared Centrelink did not have a copy of the letter.[3]

    [3] T-documents, T21-174.

13. There also appears to have been an issue with the records maintained by Centrelink. Centrelink’s electronic document records dated 23 June 2015 state:

    Pls note that SME initially had scans available during the SME check but this facility was lost during the check.  SMe is reasonably certain that they located all relevant corro but cannot be certain beyond all doubt [sic].[4]

    [4] T-documents, T21-176.

14. The Applicant gave evidence that he initially attempted to upload the letter dated 1 July 2014 via Centrelink’s website on 4 July 2014.  However, he was concerned that the letter did not upload correctly.  Therefore, sometime between 4 July 2014 and 14 July 2014 he attended Centrelink’s Leichardt office and hand delivered a copy of the letter.  The Applicant’s evidence included computer records showing that the letter had been created on 4 July 2014.[5]

    [5] T-documents, T20-156 and Exhibit A2, p 5.

15. The Tribunal acknowledges that the Applicant’s evidence and his recollection regarding the handing of the letter to someone at the Centrelink office were not perfectly consistent.  However, with the passage of time one’s ability to recall specific circumstances and sequences of events is not always clear. This is especially true when those events occurred sometime ago and were routine or ordinary in nature; the significance of the letter was only recognised at some point in the future.  Regardless of the specifics of the events that occurred at the time the Applicant contends that he hand delivered a copy of the letter dated 1 July 2014 to Centrelink during the period 4 July 2014 to 14 July 2014.

16. The Tribunal accepts the Applicant’s evidence that he attended the Leichardt Centrelink office some time on or around 4 to 14 July 2014 and hand delivered the letter dated 1 July 2014.

17. The Tribunal acknowledges that Centrelink records do not show a record of the letter being received by them during this period.  However, there is no certainty that a document hand delivered to a person at the Centrelink office was correctly allocated to the Applicant’s file.  Also, there is the possibility that some correspondence may be missing from the Applicant’s file.

    DECISION

18. The decision of the Tribunal is therefore to set aside the decision under review and remit the decision for reconsideration, with a direction that the reconsideration be undertaken in light of the Tribunal’s finding that during the period 4 to 14 July 2014 the Applicant provided notification to the Respondent of the matters set out in the Applicant’s letter dated 1 July 2014.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of N Gaudion, Member

...............................[sgd].........................................

Associate

Dated: 21 April 2017

Date of hearing:	24 March 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services