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

Brown and Secretary, Department of Social Services (Social services second review) [2022] AATA 1076 (10 May 2022)
Division:GENERAL DIVISION
File Number: 2021/4274
Re:Ryan Brown

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:10 May 2022
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 21 May 2021, which affirmed a decision of a delegate of the Respondent, made on 3 March 2021, not to pay the Applicant a back payment for an increased rate of his disability support pension, is affirmed.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant is entitled to receive the back payment for an increased rate of his disability support pension – notice of decisions – date of effect of favourable decisions resulting from review – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 23(12), Part 3.16
Social Security (Administration) Act 1999(Cth) – ss 109, 109(7), 109(7)(b), 237
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
10 May 2022
INTRODUCTION

Mr Brown has been in receipt of disability support pension (DSP) since 16 October 1997. During the period 24 May 2016 to 29 April 2020, Centrelink calculated the rate of Mr Brown’s DSP on the basis that he was earning $366.40 a fortnight from employment with Peel Resources. Mr Brown has said that he did not work for Peel Resources during this period, and accordingly his rate of DSP for this period was less than the rate he was entitled to receive.
Mr Brown seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 21 May 2021 (the Reviewable Decision). The Reviewable Decision affirmed an earlier decision made by the Authorised Review Officer (ARO) of Services Australia (Centrelink), dated 3 March 2021, which increased the rate of Mr Brown’s DSP for the period 20 March 2020 to 29 April 2020, but not for the period 24 May 2016 to 19 March 2020 (T2/7).
This matter was heard by the Tribunal on 22 March 2022 via video conference. Mr Brown did not participate in the hearing and was represented by his mother Ms Victoria Donnelly-Andrews. The Respondent states that Ms Donnelly-Andrews is Mr Brown’s correspondence nominee at Centrelink (Exhibit R1, para 4.2) (see also para 25 below).
The Respondent was represented by Mr James Bernasconi of Services Australia.
BACKGROUND
On 9 May 2016, Centrelink notified Mr Brown and his nominee that his rate of DSP from 19 May 2016 was $505 based on regular fortnightly earnings of $366.40 (T4/89-91). The notice also stated:
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.
(Original emphasis.)
On 23 August 2016, Centrelink again notified Mr Brown and his nominee that his rate of DSP from 8 September 2016 was $757.70 based on regular fortnightly earnings of $366.40 (T8/100-102). The notice stated:
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.
(Original emphasis.)
Mr Brown and his nominee were sent similar notices on 23 November 2016 (T10/105-107), 28 November 2016 (T11/108-110), 28 February 2017 (T13/113-115), 2 March 2017 (T14/116-118), 2 June 2017 (T16/121-123), 13 June 2017 (T17/124-126), 13 September 2017 (T20/130-132), 19 September 2017 (T21/133-135), 31 October 2017 (T22/136-138), 31 January 2018 (T25/144-146), 5 February 2018 (T26/147-149), 7 May 2018 (T28/152-154), 15 May 2018 (T29/155-157), 7 August 2018 (T30/158-160), 18 September 2018 (T32/163- 165), 18 December 2018 (T34/168-170), 20 December 2018 (T35/171-173), 20 March 2019 (T37/176-178), 2 April 2019 (T38/179-181) and 15 October 2019 (T40/183-185).
On 8 May 2020, Mr Brown’s nominee contacted Centrelink and requested that Centrelink review the rate of DSP payable to Mr Brown for the period from 24 May 2016 to 29 April 2020 on the basis that he was not earning income of $366.40 per fortnight during this period (T51/230-231). Centrelink then sent both Mr Brown (T2/14) and his nominee (T2/13) an Income Statement.
On 3 March 2021, the ARO determined that Mr Brown could be back paid an increased rate of DSP from 20 March 2020 as the request for review on 8 May 2020 was within 13 weeks of a Consumer Price Index (CPI) rate decision made on this date. However, the ARO found that Mr Brown could not be back paid an increased rate of DSP for the period 24 May 2016 to 19 March 2020 (T49/222).
On 21 May 2021, the AAT1 affirmed the decision made by the ARO on 3 March 2021 (T2/6).
On 29 June 2021, Mr Brown applied to the Tribunal for a second review (T1/1).
In claiming that the Reviewable Decision was wrong, Mr Brown’s nominee disputed paragraphs 15, 17, 18 and 19 of the Reviewable Decision, and further stated (T1/2-3):
I have in my file, my original statement dated the 8 May 2020 which is totally different than the statement from Centrelink to The Appeal Tribunal dated 8 May 2020. On my original document 8 May 2020 is different from the 20 May 2020 when on that day - the Office of Centrelink change Ryans details once I had made them aware of the facts.
I also made reference during the Appeal that Ryan spoke almost weekly with Centrelink and told them he was not working when asked.
These phone calls are recorded, hence the proof of the above statement/information, which would be easily obtained by the Tribunal. Never was I given any information either by mail or phone that Ryan’s payments for Disability Support Pension were being calculated using his previous employer Peel Resources, wage income payments.
I am appalled to find two different documents dated the same day to be total different. I would ask for the next hearing to be inperson
(Errors in original.)
ISSUE
The Tribunal in this matter must decide whether Mr Brown is entitled to receive arrears for an increased rate of DSP for the period 24 May 2016 to 19 March 2020 (the Relevant Period). The Tribunal relies on Centrelink’s records to ascertain the Relevant Period.
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the relevant provisions of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The Tribunal must also have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (645)).
Section 109 of the Administration Act states that:
Date of effect of favourable determination resulting from review
(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.
(2)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.
(3)If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is not given notice of the original decision; and
(c)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.
(4)If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(5)If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.
(6)This section does not apply to determinations to which section 109A or 110A apply.
(7)For the purposes of this section, if:
(a)the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and
(b)the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;
then:
(c)each person whose rate of social security payment is, or was, affected by the determination is taken to have been given notice of the determination and of the increased rate; and
(d)the notice is taken to have been given on the day on which the amount was so indexed or adjusted.
(Original emphasis.)
Section 237 of the Administration Act provides when notice is considered to be given, as follows:
Notice of decisions
(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 23(12) of the Act provides that s 237 of the Administration Act applies even when the Secretary, or the Tribunal, is satisfied that the person did not actually receive the notice.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had the following material before it:
·The Section 37 T-Documents (labelled T1–T52, consisting of pages 1–289);
·Secretary’s Statement of Issues, Facts and Contentions, dated 3 February 2022 (Exhibit R1); and
·The oral evidence of Ms Donnelly-Andrews.
CONSIDERATION
It is not in dispute that during the period 24 May 2016 to 29 April 2020, Mr Brown was paid a rate of DSP on the basis of him earning $366.40 per fortnight. The Respondent accepts that Mr Brown was not earning this income during this period (Exhibit R1, para 5.1). However, the Respondent contends that Mr Brown is not eligible for a back payment of an increased rate of DSP during the Relevant Period, as he did not request review of the rate decisions until 8 May 2020 (Exhibit R1, para 5.2).
The key elements of Ms Donnelly-Andrews’ submissions during the hearing are as follows:
(a)She became aware that Mr Brown was not receiving the maximum rate of DSP during a visit to the traffic department in Bunbury on 8 May 2020, and that prior to that time she had not been notified that Mr Brown was being assessed on an income of $9,526.40 a year (Transcript/9).
(b)Without the assessment information prior to 8 May 2020, she was unable to protect Mr Brown and she considered this unfair (Transcript/10).
(c)Although she also received DSP, she did not understand how the rate of DSP payment was assessed. She said that Mr Brown had also been going through Robodebt and had been contacting Centrelink every two weeks to advise that he was repaying his debt. At no time did she attempt to ascertain the prevailing maximum rate of DSP or check on the rate of DSP being paid to Mr Brown (Transcript/11).
(d)She did not know what Mr Brown did with letters he received from Centrelink, and suggested that he may have thrown them out. She did not open Mr Brown’s mail, as she thought it was illegal to do so and that doing so would take away the little pleasure he derived from opening his own mail (Transcript/14-15).
Pursuant to s 109(7)(b) of the Administration Act, Part 3.16 of the Act provides for a large number of automatic changes to some factor in the DSP rate calculation process, such as the Consumer Price Index (CPI) basic rate increases each year. On 20 March, 1 July and 20 September each year, the rate of DSP may increase in line with CPI changes or because of changes in DSP income and asset test thresholds. If a person’s DSP increases on these dates, it is deemed that Centrelink notifies the person about the rate of their DSP. Should the person seek a review within 13 weeks of these dates, and the review succeeds, Centrelink pays an increased rate of DSP from these dates. If the person does not seek review within 13 weeks, Centrelink can only pay any increase from the date the person requests the review.
The evidence is that Mr Brown was issued a notice on 17 August 2016 advising him that his DSP was being paid on the basis that he was receiving regular fortnightly earnings of $366.40 (T7/97). Mr Brown was also issued further similar notices (see para 7 above). These notices were sent to Mr Brown’s nominated postal address (T1/1). During the hearing, Ms Donnelly-Andrews stated that she and Mr Brown had been residing at the address since 2005 (Transcript/14).
Having regard to the application of s 109(7) of the Administration Act, the Tribunal finds that whenever an automatic rate increase occurred during the Relevant Period, Mr Brown was deemed to have been given notice of his DSP payment rate. As the notices were sent to Mr Brown’s nominated postal address, they can be taken, for social security purposes, to have been given to Mr Brown. Pursuant to s 23(12) of the Act, it is irrelevant whether Mr Brown or Ms Donnelly-Andrews contend that they received the notices or not.
As a consequence of Ms Donnelly-Andrews contending that she personally had not received Centrelink correspondence regarding the assessment of the rate of Mr Brown’s DSP, the Tribunal considers the relevant submissions by Mr Bernasconi before the Tribunal (Transcript/13-14):
The Secretary doesn’t actually have any evidence other than the AAT application before it that actually indicates that Ms Donnelly-Andrews is actually the applicant’s nominee. We do have confirmation in our records, and that’s attached to our SFIC at attachment 1 that Ms Donnelly-Andrews is in fact the applicant’s nominee. But in terms of the most recent document that’s available on the records, that wouldn’t have been until the application that was submitted to the tribunal at T1. So we are willing to accept, though, that Ms Donnelly-Andrews may have been informally or through a phone call or something that’s not been recorded the nominee of the applicant; but to us it’s not a relevant question to the facts. But if – notwithstanding the CPI issue, it’s our contention that given the fact that they reside at the same address, and Ms Donnelly-Andrews had knowledge that she was the nominee, that is the applicant’s nominee, it follows from that that any letter that’s addressed to the applicant which would have gone into her mailbox was for her eyes as well.
In the absence of evidence, legislative provisions or policy guidance to the contrary, the Tribunal accepts these submissions and considers the issue immaterial in the present matter.
There is no file evidence before the Tribunal that Mr Brown or Ms Donnelly-Andrews requested Centrelink during the period 24 May 2016 to 29 April 2020 to review Mr Brown’s rate of DSP. The evidence is that Mr Brown first requested a review of the original decision in question on 8 May 2020, being the date Ms Donnelly-Andrews contacted Centrelink to enquire about his rate of DSP payment (T51/230-231). The AAT1 decision relevantly states (T2/9): “[t]he Secretary considers, and Ms Donnelly-Andrews agrees, that the first date on which anything was actioned that could constitute an application for review of the decision was 8 May 2020. I am also satisfied as to that fact.”
It follows that Mr Brown is only eligible for a back payment of an increased rate of DSP under s 109(1) of the Administration Act if he was notified of a rate decision after 7 February 2020, that being 13 weeks prior to 8 May 2020. The earliest Centrelink notified Mr Brown of a DSP rate decision after 7 February 2020 was on 20 March 2020 when Centrelink was deemed to have notified him of a CPI rate increase pursuant to s 109(7) of the Administration Act.
The Tribunal finds that the earliest date from which Mr Brown can be back paid DSP is 20 March 2020.
CONCLUSION
The Tribunal notes and agrees with the apposite conclusion of the ARO in the decision dated 3 March 2021 (T49/224):
This means Services Australia can pay you a back payment of your Disability Support Pension for the period 20 March 2020 to 29 April 2020. This is because you or your nominee asked Services Australia for the review within 13 weeks after the CPI increase in your Disability Support Pension on 20 March 2020.
Services Australia cannot pay you a back payment of your Disability Support Pension for the period 24 May 2016 to 19 March 2020. This is because you did not ask Services Australia for a review within 13 weeks of the dates of the letters Services Australia sent to you during this period about the rate of your Disability Pension. This is also because you did not ask Services Australia for a review within 13 weeks after the increase to the rate of your Disability Support Pension from 20 March, 1 July and 20 September of 2016, 2017, 2018 and 2019.
DECISION

The Reviewable Decision is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member

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Associate
Dated: 10 May 2022

Date of hearing:

Advocate for the Applicant:

22 March 2022

Victoria Donnelly-Andrews

Counsel for the Respondent: James Bernasconi

Solicitors for the Respondent: Services Australia

[2022] AATA 1076

10 May 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Standing