Carey and Secretary, Department of Social Services (Social services second review)
[2016] AATA 926
•21 November 2016
Carey and Secretary, Department of Social Services (Social services second review) [2016] AATA 926 (21 November 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1614
Re
Dennis Carey
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 21 November 2016 Place Sydney The decision under review is set aside and is remitted to the Secretary with the following directions:
(a) The correct start day for Mr Carey’s new claim for the Age Pension is 3 June 2015; and
(b) Mr Carey may not receive arrears of his Age Pension.
...............................[sgd].........................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – cancellation of Age Pension – applicant failed to notify Centrelink of changed address – Age Pension later reinstated – correct start date of age pension – whether applicant entitled to arrears of Age Pension – decision remitted
LEGISLATION
Social Security Act 1991 (Cth) s 23(12)
Social Security (Administration) Act 1991 (Cth) ss 13, 109, 237
REASONS FOR DECISION
Professor R McCallum AO, Member
21 November 2016
BACKGROUND
The Applicant, Mr Dennis Carey commenced to receive the Aged Pension on 25 July 2003. On that date, Mr Carey was transferred from Disability Support Pension to the Age Pension.
The Cancellation of Mr Carey's Age Pension
The Department of Human Services which is better known as Centrelink, wrote letters to Mr Carey dated 3 and 26 April 2013 seeking information about his Age Pension.
Centrelink sent these two letters to Mr Carey's last known address as recorded in its files. However, Mr Carey had changed his mailing address, but he had not notified Centrelink about his change of address.
Mr Carey did not reply to these letters because he did not receive them.
By letter dated 17 May 2013 which was sent to the former address, Centrelink suspended Mr Carey's Age Pension, and on 2 August 2013 by a further letter sent to the former address, Centrelink cancelled Mr Carey's Age Pension.
The 2 August 2013 letter stated in part as follows:
Your Age Pension has been cancelled because we have not received a reply to the letter/s we sent you.
The 29 May 2015 Centrelink Telephone Call
Centrelink telephoned Mr Carey about a debt on 29 May 2015. Mr Carey told Centrelink that he had not been paid his Age Pension for almost two years. He explained that he had changed his address.
Centrelink wrote Mr Carey a letter to his current mailing address dated 3 June 2015, which confirmed the telephone conversation of 29 May 2015 where Mr Carey had expressed the intention to apply for the Age Pension. This letter further requested Mr Carey to lodge the enclosed claim forms no later than 12 June 2015. However, Mr Carey did not lodge these forms to make a new claim for the Age Pension until 17 June 2015. Centrelink subsequently granted Mr Carey’s new claim for the Age Pension from 3 June 2015. In other words, Centrelink held that the correct start day on which Mr Carey could receive the Age Pension was 3 June 2015.
Mr Carey Seeks a Review
On 3 June 2015, Mr Carey sought a review of the decision which cancelled his Age Pension on 2 August 2013.
Mr Carey received a letter from Centrelink dated 8 September 2015. The material portion of this letter is as follows:
I am writing to you about the decision made on 17 May 2013 not to pay you Age Pension.
After carefully considering the information you have provided I have decided the original decision was incorrect. The decision is now to reinstate your pension from 17/05/2013.
It does appear that this letter embodies a favourable determination setting aside the decisions to suspend and then to cancel Mr Carey’s Age Pension.
In a letter dated 14 September 2015, an Authorised Review Officer (ARO) dealt with the 3 June 2015 review application by Mr Carey. The ARO held that 29 May 2015 was the correct start day for Mr Carey to receive the Age Pension. Relying on several provisions of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) which I will discuss below, the ARO further held that Mr Carey could not receive arrears of his Age Pension for any period before 29 May 2015.
Mr Carey sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an ‘AAT first review’. The AAT first review made its decision on 22 February 2016, and this decision was posted on 3 March 2016. The AAT first review upheld the decision of the ARO, albeit with slightly differing reasons.
Mr Carey has appealed to the General Division of the AAT which is known as an ‘AAT second review’.
THE ISSUES BEFORE THE TRIBUNAL
There are two issues which I am required to decide as I stand in the shoes of the Secretary.
The first issue which I am required to decide, is to determine the correct start day of Mr Carey’s new claim for the Age Pension.
The second issue is whether Mr Carey may receive arrears of his Age Pension.
THE EVIDENCE OF MR CAREY
Mr Carey attended the hearing in person and represented himself.
Mr Carey gave evidence by affirmation. I found Mr Carey to be an honest witness who did his best to assist the Tribunal.
Mr Carey said that he commenced receiving the Age Pension on 24 July 2001.
Mr Carey said that he thought his mail was being interfered with, so some time in 2013 he changed his post office box number. He said that he did not notify Centrelink that he had changed his address for receiving mail.
When asked why he did not make inquiries of Centrelink when he stopped receiving his Age Pension after 17 May 2013, he said that he thought Centrelink would sought things out and put him back on the Age Pension.
Mr Carey said he recalled the telephone call from Centrelink on 29 May 2015. Mr Carey said that the staff member of Centrelink who had made the telephone call stated that he owed Centrelink $9,500.
Mr Carey said that he explained to Centrelink that he had altered his mailing address.
Mr Carey also said that in a phone call from Centrelink he was told that he would receive arrears of his Age Pension from when it was suspended on 17 May 2013.
Mr Carey had previously forwarded to the Tribunal the letter from Centrelink dated 8 September 2015 which I have quoted above. He said that he thought he could rely on this letter and that he would receive arrears of his Age Pension.
Given the reviews by the ARO and the AAT first review, it was explained to Mr Carey that several provisions of the Administration Act applied to his situation.
Mr Carey was asked whether there were any medical reasons which would explain his delay in submitting the Age Pension forms and he answered that he did not have any health issues at that time.
CONSIDERATION
There are two issues which I am required to decide. First, what is the correct start day of Mr Carey’s new claim for the Age Pension. Second, whether Mr Carey may receive arrears of his Age Pension.
The answers to these two issues require me to unpack several complex provisions of the Administration Act.
The Correct Start Day
The general rule for determining the start day of a social security payment is set out in subclause 3(1) of Schedule 2 of the Administration Act. Subclause 3(1) provides as follows.
3 Start day—general rule
(1) If:
(a) a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.
However, during Centrelink’s telephone call of 29 May 2015, Mr Carey did express the intention to make a new claim for the Age Pension. In these circumstances subsection 13(1) of the Administration Act applies by regarding the intention to claim as a deemed claim. Subsection 13(1) is as follows.
13 Deemed claim—person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
It is clear that Mr Carey complied with paragraphs (a), (b) and (c) of subsection 13(1). During the 29 May 2015 telephone call he expressed the intention to make a new claim, on that day he was qualified to receive the Age Pension, and in its letter of 3 June 2015 Centrelink confirmed the telephone contact.
However, Mr Carey did not comply with paragraph (d) of subsection 13(1) because he did not lodge the new claim within fourteen days after the contact with Centrelink.
Put another way, Mr Carey was in contact by telephone with Centrelink on 29 May 2015. However, he did not lodge his application for a new claim within fourteen days of the contact, that is by 12 June 2015. He lodged his new claim on 17 June 2015 and thus he was out of time. Therefore subsection 13(1) does not enable Mr Carey’s start day to be 29 May 2015.
Subsections 13(2), 13(3) and 13(3A) provide exceptions where there has been a failure to lodge claims within the fourteen day period. Put briefly, where the claimant is suffering a medical condition, is caring for a partner or other person with a medical condition, or where special circumstances exist, the claim can be regarded as having been made on the day on which the contact took place, that is on 29 May 2015.
In his evidence, Mr Carey said that at the time when he lodged his new claim, he was not suffering any medical condition. There is no evidence before this Tribunal that Mr Carey was caring for a partner or for another person with a medical condition, or of any special circumstances in Mr Carey’s case. Accordingly, I find that Mr Carey’s start day cannot be 29 May 2015.
Paragraphs 24-27 of the Respondent’s statement of facts and contentions are as follows (footnote omitted):
24.The applicant did not lodge his new claim for age pension until 17 June 2016.
25.In these circumstances, Centrelink decided to grant the applicant’s claim for age pension from 3 June 2015, the next day on which the applicant had contact with the Department (to seek review of the decision to cancel his age pension).
26.There is no evidence in the material before the Tribunal that any of the exceptions in ss 13(2) to (3A) of the Administration Act apply such that the applicant could be taken to have made the claim on 29 May 2015.
27.The applicant’s start day in relation to the age pension payment is 3 June 2015.
Mr Carey was in contact with Centrelink on 3 June 2015 when he sought review of the decision to cancel his Age Pension, he was qualified on that day to receive the Age Pension, and he submitted his claim on 17 June 2015, that is within the fourteen day time limit.
Having regard to all of the circumstances and to paragraphs 24-27 of the Respondent’s statement of facts and contentions, I am prepared to make the finding that the Centrelink letter of 3 June 2015 which acknowledged the contact with Mr Carey, complies with paragraph (c) of subsection 13(1) of the Administration Act.
Having regard to the evidence before me and to all of the surrounding circumstances, I find that the correct start day for Mr Carey’s new claim for the Age Pension is 3 June 2015.
May Mr Carey Receive Arrears of his Age Pension?
To determine whether Mr Carey may receive arrears of his Age Pension, it is necessary to unpack subsections 109(1), 109(2) and 109(3) of the Administration Act. These three subsections are lengthy, however, it is necessary to set them out as follows.
109 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.
Put simply, subsections 109(1) and 109(2) make it clear that different consequences will flow where a person challenges a Centrelink decision either within thirteen weeks after being notified of the decision, or more than thirteen weeks after being notified of the decision. Where the application to review is made within the thirteen week period, and where a favourable determination is made, that favourable determination takes effect on the day on which the original decision was made.
If, on the other hand, the application to review is made beyond the thirteen week period, and where a favourable determination is made, that favourable determination takes effect from the day on which the person applied to have the decision reviewed.
Subsection 109(3) covers the situation where the person has not been notified of the decision. Subsection 109(3) makes it clear that where the person has not been notified of the decision, where there has been an application for review, and where a favourable determination is made, that favourable determination takes effect on the day on which the original decision was made.
Mr Carey’s Age Pension was cancelled on 2 August 2013. Mr Carey applied for a review of the cancellation decision on 3 June 2015 which is almost two years after the decision to cancel. Thus, Mr Carey was well outside the thirteen week period.
However, if Mr Carey was not given a notice informing him of the original decision to cancel his Age Pension, where a favourable determination is made, that favourable determination takes effect on the day on which the original decision to cancel was made, that is on 2 August 2013.
Centrelink notified Mr Carey of its decision to cancel his Age Pension in a letter dated 2 August 2013, the material portion of which is quoted above. Centrelink sent this letter to Mr Carey’s last known postal address. In his evidence, Mr Carey said that he had changed his mailing address, but that he had not informed Centrelink of this change of address.
In these circumstances, section 237 of the Administration Act comes into play. It provides as follows.
237 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.
(4)This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
From the evidence before me, I find that the letter of 2 August 2013 was posted by Centrelink to Mr Carey’s last known address and that he is deemed to have received this notice in the ordinary course of the mail.
The operation of section 237 of the Administration Act is strengthened by subsection 23(12) of the Social Security Act 1991 (Cth) which is as follows:
(12) If:
(a)section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
In his evidence, Mr Carey said that he did not receive the letters dated 3 and 26 April, 17 May 2013 and 2 August 2013 because they were sent to his former mailing address. He did not inform Centrelink of the change of his mailing address. Even though Mr Carey did not receive the letter dated 2 August 2013 cancelling his Age Pension, by virtue of section 237 of the Administration Act when read with subsection 23(12) of the Social Security Act 1991 (Cth), Mr Carey was notified of the cancellation decision. As his application for review dated 3 June 2015 was well outside the thirteen week period, subsection 109(2) of the Administration Act applies. Therefore, I find that Mr Carey cannot receive arrears of his Age Pension for the period before 3 June 2015. As 3 June 2015 is the correct start day of his new claim for Age Pension, I further find that Mr Carey cannot receive any arrears flowing from the suspension and cancellation of his Age Pension.
CONCLUSION
For the reasons which I have set out above, I find that the correct start day for Mr Carey’s new claim for the Age Pension is 3 June 2015. I further find that Mr Carey may not receive arrears of his Age Pension.
I have some sympathy for Mr Carey. He did receive the letter from Centrelink dated 8 September 2015 which I have quoted above. It did say that he could receive arrears flowing from the suspension and cancellation of his Age Pension. However, the provisions of the Administration Act which I have analysed do not enable Mr Carey to receive arrears of his Age Pension.
I am surprised that the letter from Centrelink of 8 July 2015 was not forwarded to the Tribunal with the other documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
DECISION
The decision under review is set aside and is remitted to the Secretary with the following directions:
(c)The correct start day for Mr Carey’s new claim for the Age Pension is 3 June 2015; and
(d)Mr Carey may not receive arrears of his Age Pension.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...............................[sgd].........................................
Associate
Dated 21 November 2016
Date(s) of hearing 28 October 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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