Brown and Secretary, Department of Family and Community Services

[2004] AATA 347

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/573

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Janet Gwendoline Brown

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date              3 March 2004

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act1975, affirms the decision under review. 

..............................................

Ms S M Bullock     

Senior Member   

CATCHWORDS

SOCIAL SECURITY – Age Pension – Review Sought after 13 Weeks – Whether Arrears Payable

Social Security (Administration) Act 1999 (Cth) s109

REASONS FOR DECISION

3 March 2004

Ms S M Bullock, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that the preceding page is a true copy of the decision and reasons for decision herein of Ms S M Bullock, Senior Member

Signed:         .....................................................................................

Associate

Date of Hearing   3 March 2004
Date of Decision   3 March 2004
Representative for Applicant        Self-Represented      

Representative for Respondent     Ms A Garcia, Departmental Advocate      

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/573
By Ms S M BULLOCK, Senior Member
BROWN AND SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, NEWCASTLE, WEDNESDAY, 3 MARCH 2004.

1.This is the matter of the Applicant, Mrs Janet Brown and the Respondent, Secretary, Department of Family and Community Services.  The Administrative Appeals Tribunal’s File Number is N2003/573.

2.Mrs Brown has made an application for review to the Administrative Appeals Tribunal (the Tribunal”) of a decision made by the Social Security Appeals Tribunal on 13 March 2003.  I will refer now to the Social Security Appeals Tribunal as “the SSAT” for ease of reference.  The SSAT decided that no arrears of Age Pension could be paid to Mrs Brown for the period from 12 March 2002 to 25 August 2002.

3.A Hearing was held in Newcastle before the Tribunal on 3 March 2004. Mrs Brown was self represented but had the assistance of her friend, Ms Blayden.  Mrs Brown provided oral evidence.  The Respondent, was represented by Ms A Garcia, Departmental Advocate. 

4.Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and were taken into evidence.  Those documents which are referred to as the “T documents” are from T1 through to T29.  Also taken into evidence was Exhibit R1, which is the Secretary’s Statement of Facts and Contentions dated 22 December 2003.  The issue in this matter is whether or not Mrs Brown can be paid arrears of Age Pension for the period 12 March 2002 to 25 August 2002.  The legislation in this matter principally comes from the Social Security Administration Act 1999 and specifically subsection 109 (1), and subsection 109(2) and I will read this section for the record. Subsection 109(1) states:

“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 the review;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

Subsection 109(2) of the Social Security Administration Act 1999 states:

“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;

the favourable determination takes effect on the day on which the application for review was made.

Section 129 of the Social Security Administration Act 1999 allows for a person to seek review of a decision. 

5.I will turn now to the evidence of Mrs Brown.  Mrs Brown told the Tribunal that she did receive a letter from Centrelink dated 6 March 2002 seeking information about her AMP superannuation investments.  That letter is found at T5 of the documents.  Mrs Brown told the SSAT that she did not precisely recall providing this information but clearly Centrelink did receive some information.  Mrs Brown stated that she also received a further letter from Centrelink dated 12 March 2002 but did not look at this letter or read it in any way until about August 2002.

6.Mrs Brown explained that from about 8 April 2002 she was in hospital for a period of approximately six weeks.  Her own hospitalisation occurred about one week after her, at that time, 89 year mother was admitted to hospital having had a fall.  On 8 April 2002 Mrs Brown visited her mother at the John Hunter Hospital on two occasions at lunch time and then again in the evening.  It was after this last visit that Mrs Brown fell, fracturing her right knee in two places, and fracturing her left ankle.

7.Obviously this was extremely distressing for Mrs Brown.  It was extremely distressing in terms of her own health but also in terms of her mother who was also in hospital.  Mrs Brown explained that her concern was for caring for her mother and it is also the situation that Mrs Brown has Power of Attorney over her mother’s affairs.  After leaving hospital, Mrs Brown was still very preoccupied (she explained to the Tribunal), as she was told that her mother had to be found alternate accommodation to hospital and it seemed that she was unable to return home.  Mrs Brown stated that she had to prioritise things in her life and her mother and the arrangements for her mother were a priority.

8.Mrs Brown stated that she did not contact Centrelink to advise of her health problems or the problems with her mother as she needed to attend to her mother.  Mrs Brown explained that her pain was extreme and that indeed her situation deteriorated because of complications with the wire in the fractures of her knee, so much so that this resulted in her having to undergo further surgery in about December 2002, followed by rehabilitation.

9.In terms of her mail, Mrs Brown explained that the mail was being collected for her whilst she was in hospital, some of which was brought to her in hospital.  It was not until August 2002, however, that Mrs Brown read and understood the impact of the 12 March 2002 letter from Centrelink.  She attended the Wallsend Centrelink Office to seek clarification about the reduction of her Age Pension.  She did this on about 26 August 2002.  After that visit, Mrs Brown also sought advice from her financial adviser, Mr Grieves.

10.Mrs Brown stated that Centrelink has made a mistake in its understanding concerning an amount of $30,000 in superannuation she has with AMP.  It is Mrs Brown’s view that Centrelink had treated that amount as a separate or additional amount of superannuation which in fact, in her submission, it was not.  Following Mrs Brown’s attendance at the Centrelink Office, a review was subsequently conducted at some time later and it was indeed the situation that the Age Pension was increased but only from 26 August 2002, the day on which she went to the Wallsend Centrelink Office.  It was explained to Mrs Brown that she had not sought a review within 13 weeks of the letter of 12 March 2002, so an earlier date for payment of the Age Pension could not be achieved.

11.Mrs Brown told the Tribunal that she was not happy with the SSAT Hearing because it was conducted by telephone.  Mrs Brown felt that not being able to see the three-member Tribunal in person put her at some disadvantage.  Mrs Brown did not dispute the factual information in the decision but questioned, for example, in paragraph 8 of the SSAT’s decision, the Tribunal’s interpretation of the amount of $30,000.  Mrs Brown said to the Tribunal that in fact it was somewhat unclear.

12.Turning to the submissions, Mrs Brown submitted that there is no question that she was underpaid the Age Pension between 12 March 2002 and 25 August 2002.  Mrs Brown stated that the legislation is unfair and harsh in only allowing 13 weeks review without any possibility of considering the special circumstances of people.  Specifically, Mrs Brown noted that she works with elderly, disabled and disadvantaged people and for them the legislation is unjust.

13.Mrs Brown stated that she will be taking this matter up at a political level in terms of the harsh legislation.  Mrs Brown stated that she would have complied with the 13 week period in which to seek review had she been able to do so, but she submitted that she was not able to do so because of the circumstances at the time.  If this situation was difficult for Mrs Brown who has many resources, it would be very difficult for many of the other elderly people with whom she works, in trying to comply with these harsh provisions.

14.The Tribunal also understood Mrs Brown’s submission that she believed that it was inequitable in terms of a circumstance that if Centrelink was owed money, then it would vigorously pursue outstanding debts.

15.Turning to the submissions of the Respondent,  Ms Garcia submitted that the Respondent empathises with Mrs Brown’s situation of her having to cope in April 2002 with not only her own health but with the ill-health and the future arrangements concerning her mother.  Ms Garcia acknowledged the painful consequences of all of these matters for Mrs Brown.  Furthermore, Ms Garcia understood Mrs Brown was prevented from reading her correspondence from Centrelink.  Ms Garcia contended however that there is no discretion in the legislation to allow for regard to be had for special circumstances for a person who does not seek review of a decision within 13 weeks of the date of the decision, that is in this case, the decision of 12 March 2002.

16.Ms Garcia submitted that Mrs Brown’s evidence is that she accepts that she received the letter of 12 March 2002 and she did not reply within 13 weeks.  Ms Garcia also noted that there was no attempt to contact Centrelink until 26 August 2002, which was approximately five months after the letter of 12 March 2002.  As I understood Ms Garcia’s submission, she acknowledged the error of Centrelink in reducing the Age Pension and suggested, as did the SSAT, that Mrs Brown might like to make an application for compensation for detriment due to defective administration.  Ms Garcia indicated her willingness to assist Mrs Brown with that process.

17.Ms Garcia submitted that the Respondent is aware of difficulties in terms of customers complying with various notices sent to them by Centrelink, that is precisely why, Ms Garcia submitted, that notices such as the letter of 12 March 2002, contain information which clearly states that if a customer does not ask for a decision to be reviewed within 13 weeks of being told about that decision, then if there is going to be a favourable decision, payment can only be made backwards to a date upon which the review is requested. That specific reference is contained in the letter of 12 March 2002 T6 page 19. Ms Garcia submitted that section 109 of the Social Security Administration Act 1999 is clear that if no review of a decision is sought within 13 weeks, then the earliest a favourable decision can be made is on the date of the application for review of the original decision.

18.I now turn to the findings in this matter.  I have come to a decision taking into account the oral and documentary evidence, the submissions and obviously the legislation.  Mrs Brown impressed me as a very honest person with great community spirit and was considered by the Tribunal as a thoroughly credible witness.  There is no dispute in this matter that Mrs Brown received a letter from Centrelink dated 12 March 2002.  Mrs Brown did not actually read the letter or understand its impact until some time later in August 2002. 

19.The circumstances of reading the letter somewhat later than the date that it was written, is understandable in that Mrs Brown was hospitalised for six weeks and furthermore she had, at a simultaneous time, her mother in hospital.  There were also further arrangements to be made in terms of Mrs Brown’s mother’s future care. Mrs Brown is in fact, on my understanding of the evidence, instrumental in her mother’s care.  She has Power of Attorney and the concerns for her elderly mother are paramount.  Thus the period from March 2002 was distressing for Mrs Brown.  There were issues of her own ill-health, the ill-health of her mother and future arrangements for her mother’s care.  Mrs Brown did not, during this period, contact Centrelink to advise of her stressful experiences and difficulties.  Mrs Brown’s evidence was that she had to prioritise her time and the letter from Centrelink was not, at that relevant time, her highest priority.

20.I am satisfied that the letter of 12 March 2002 was properly served on Mrs Brown and that this letter is a notice informing Mrs Brown of a decision, that is the original decision, to reduce her Age Pension and that Mrs Brown was also advised in that letter (or notice) of 12 March 2002, of the requirement that if Mrs Brown disagreed with the decision to reduce her Age Pension, then she needed to seek a review within 13 weeks.  To seek a review after that time would result in her only being able to be back-payed, in her circumstances, the Age Pension, on the date on which she made a request for review.

21.I am also satisfied that the first contact Mrs Brown made with Centrelink about the decision to reduce her Age Pension was on 26 August 2002, when she attended the Wallsend Centrelink Office. I am satisfied that Mrs Brown’s contact with Centrelink at Wallsend on 26 August 2002 constitutes a request for a review of the original decision of 12 March 2002. In such circumstances, subsection 109(2) of the Social Security Administration Act 1999 applies. This provides (and I have already read out the relevant provisions of the Act but subsection 109(2) provides) that where a review is sought in a period greater than 13 weeks after the original decision, then the earliest that a favourable decision or the decision to increase the Age Pension, in Mrs Brown’s circumstances, is from 26 August 2002.

22.While I understand the difficulty Mrs Brown was experiencing with her health and her mother’s health and looking after her mother’s future arrangements, she placed a priority on those matters and that is understandable. The legislation however in relation to the relevant notice of 12 March 2002 in my understanding is clear that there is no discretion (much as I would like to be able to exercise it) for me to allow a date for payment of the Age Pension other than on 26 August 2002. In all of the circumstances therefore, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, I affirm or agree with the decision under review. 

23.I understand, Mrs Brown, that you will be disappointed by this decision and that is in the circumstances I think considered by all to be of concern, however the legislation is clear.  From your submissions I understand that you are going to seek some process for legislative review of the specific section.  I would also encourage you, Mrs Brown, as did the SSAT and Ms Garcia, to investigate the possibility of you being successful in an application for compensation for detriment due to defective administration.  I am not sure whether you will be successful, but certainly I would recommend that you make such an application.