Catt and Department of Family and Community Services - [2000] AATA 1101

DECISION AND REASONS FOR DECISION [2000] AATA 1101

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/616

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ROBYN MARGARET CATT
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date14 December 2000
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Respondent, Secretary, Department of Family and Community Services dated 22 November 1999 as affirmed by the Authorised Review Officer on 21 December 1999 and the Social Security Appeals Tribunal on 21 March 2000 to refuse the payment of arrears of parenting payment to the Applicant, Ms Robyn Margaret Catt for the period 18 June 1999 to 22 November 1999 pursuant to section 511(3) and in the alternative, section 1243A of the Social Security Act 1991.
  …...........................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Social Security – qualification, payment of arrears of parenting payment – thirteen week rule – notification "given" – decision affirmed – recommend recompense for Applicant pursuant to CDDA scheme

LEGISLATION

Social Security Act 1991 ss 23(12), 511(3), 1243A and 1302A(1)
Acts Interpretation Act 1901 ss 28A, 29

CASE LAW

Estate of Thomas Biggin and Secretary Department of Family and Community Services [2000] AATA 125
Fancourt and Mercantile Credits Ltd (1983) 154 CLR 87
Quynh Ngoc Luong and Secretary, Department of Social Security (AAT 13355, 25 September 1998)
Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207
Re Oates and Secretary, Department of Social Security, (1994) 37 ALD 241
Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631
Secretary of Social Security and Manley (AAT 10285, 11 July 1995)
Secretary, Department of Family and Community Services and Thipthorp (1999) AATA 823
Secretary, Department of Family and Community Services and Warby (2000) AATA 1067

REASONS FOR DECISION

14 December 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal (the Tribunal") was the decision of the Respondent Secretary, Department of Family and Community Services ("the Department") dated 22 November 1999 (T6/14) as affirmed by the Authorised Review Officer on 21 December 1999 (T36/59) and the Social Security Appeals Tribunal ("the SSAT") on 21 March 2000 (T2/2) to refuse the payment of arrears of parenting payment ("PP") to Ms Robyn Margaret Catt, the Applicant in these proceedings, for the period 18 June 1999 to 22 November 1999.
In its primary decision, the Respondent refused to grant the payment of arrears on the basis that Ms Catt was not entitled to arrears because she had applied for a review of the decision to reduce her PP outside the prescribed thirteen week period allowed for such an appeal (section 511(3) of the Social Security Act 1991).
The Applicant was self-represented and the Respondent Department was represented by its advocate, Mr A Cox.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
·Whether Ms Catt was entitled to arrears of parenting payment for the period 18 June 1999 to 22 November 1999, having particular regard to the legislative requirement that arrears may only be paid where the person has sought a review of a decision within thirteen weeks of having been notified in writing of that decision (section 511(3) and in the alternative, section 1243A of the Social Security Act 1991 ("the Act")),("the thirteen week rule").
In order to decide the above issue, I was required to consider:
· Whether a letter from the Department said to have been sent to Ms Catt on 18 June 1999 (T4/9) advising her of the reduction in her parenting payment was "given" pursuant to sections 1302A(1) and 23(12) of the Act.
· Whether sections 511(3) and 1243A of the Act operated to preclude the payment of arrears even if the decision to reduce entitlement to PP was made as a result of an administrative error of the Respondent.

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991, in particular sections 23(12), 511(3), 1243A and 1302A.
Sections 511(3) and 1243A(1) of the Act provide the legislative basis for the thirteen week rule and outlines the circumstance in which certain determinations can not be revived:
"511              Date of effect of favourable determination
…
511(3)           If:
(a)a decision (in this subsection called the previous decision) is made in relation to a parenting payment; and
(b)a notice is given to the person to whom parenting payment is payable advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
…
"1243A          Certain determinations not to be revived
1243(1)If:
(a)the Secretary makes a determination (the first determination) that:
(i)a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the second determination):
(i)to cancel the social security payment; or
(ii)to reduce the rate at which the social security payment is payable; and
(c)notice of the second determination is given to the person; and
(d)the person applies under section 1240 for review of the second determination; and
(e)the application is made more than 13 weeks after the notice is given; and
(f)a decision (the review decision) is made by the Secretary, the CEO, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i)to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i)the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2)In this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a)the person applies for review of another determination or decision; and
(b)an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
Note 1:For the meaning of given in relation to a notice of a decision see section 1302A.
Note 2:A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3:This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4:If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increased rate, certain sections (eg section 887) restricts the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
…"

Notice is deemed to be "given" pursuant to section 1302A of the Act. It provides:
"1302A Notice of Decisions under this Act
1302A(1) If a notice of a decision under this Act 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 pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1:compare section 28A of the Acts Interpretation Act 1901
Note 2:Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
1302A(2)Notice of a decision under this Act may be given to a person by properly addressing, prepaying and posting the document as a letter.
Note: compare first limb of section 29 of the Acts Interpretation Act 1901
1302A(3)If notice of a decision under this Act 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 letter would be delivered in the ordinary course of the post unless the contrary is proved.
Note: compare second limb of section 29 of the Acts Interpretation Act 1901
…"
In instances where either section 1302A of the Social Security Act 1991 and sections 28 and 29 of the Acts Interpretation Act 1901 apply, section 23(12) of the Social Security Act 1991 stipulates that a notice is "given", even where the Secretary is satisfied that it was not received. Specifically, section 23(12) of the Act provides:
"23(12) If:
(a)section 1302A of this Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 1302A applies, or sections 28A and 29 apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
NoteAn example of a circumstance that is likely to satisfy the Secretary that the person did not actually receive the notice is if the notice is sent back to the Department marked "return to sender" or "not at this address" or "whereabouts unknown.
…"

THE EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents"), and the following Exhibits.
ITEM DATE NAME
Letter from Col Haines, Post Master       Dated stamped 31 July 2000        Exhibit A1
Bundle of letters from the Applicant                    Exhibit A2
T-Documents Exhibit R1
Respondent's Statement of Facts and Contentions together with Attachments      29 September 2000   Exhibit R2

Oral evidence was given by the Applicant, Ms Robyn Margaret Catt.
EVIDENCE OF THE APPLICANT, MS ROBYN MARGARET CATT
Ms Catt, whose date of birth was 1 November 1965, gave oral evidence before the Tribunal. She gave evidence of how meticulous she is in respect of her dealings with Centrelink and the nature of her record keeping. She explained how she attended in person at the Centrelink offices to report variations in the income of her partner, Mr Anthony Morris rather than relying on conveying the information by telephone. Ms Catt also told the Tribunal that she always followed up and confirmed with Centrelink any action taken as a result of her visits.
Ms Catt said that in June 1999, she attended the offices of Centrelink in Taree to report that Mr Morris was earning a fixed amount of $540. per fortnight. Ms Catt said that if there was any fluctuation in her partner's income she reported it so that her parenting payment would be amended accordingly, ensuring that no overpayment occurred. This case centred around the Respondent's use of the figure of $699.38 per fortnight for Mr Morris' income as the basis for its calculation of Ms Catt's entitlement to PP (T4/10), (letter dated 18 June 1999).
Ms Catt said that she became very ill and was hospitalised in July 1999. It was not until 22 November 1999, following a lengthy convalescence, that Ms Catt realised that her PP was incorrect and as a result, she telephoned Centrelink to try to ascertain what had occurred and to rectify the problem. She said it was only when she contacted Centrelink in November 1999 that she heard of a letter dated 18 June 1999 which was said to have been sent to her by the Respondent. Ms Catt also emphasised she could not appeal against a decision of the Respondent if she had no knowledge such decision had been made.
Ms Catt detailed a number of problems and errors that had been made by the Department with regard to their mailings. Ms Catt said that in January and February 2000, she was informed by the Respondent that a number of letters had been sent to wrong addresses, including one to her. I noted this was not denied by the Respondent, who, nevertheless, added that these errors did not occur within the relevant period. Ms Catt said that she was concerned about a breach of confidentiality when her mail was forwarded to an incorrect address. In this regard, the Tribunal noted her letters to Mr B Martin of Centrelink dated 15 February 2000, 10 March 2000 and 22 March 2000 and to the Privacy Commissioner on 10 May 2000 at Exhibit A2, raising her privacy concerns.
Ms Catt said that due to the small population in her community, mail services were restricted and residents were required to collect their mail from the post office counter. Ms Catt said that the postmaster had been her next-door neighbour for many years, and now the post office operated one house along from its previous location. She assured the Tribunal that she was well known within the community and that there was no chance her mail could have been collected by anyone else.
The Applicant gave evidence that there had been a change in her street name from Lansdowne Road to East Lansdowne Road in April 1999 but that this had not affected any mail in the past.
SUBMISSIONS AND CONCLUSIONS
I must take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether in law Ms Catt was "given" the relevant letter by the Department, and whether she was prevented from obtaining arrears of PP for the period 18 June 1999 to 22 November 1999 because she did not appeal within the thirteen week prescribed period.
As noted above, in order to decide whether the Respondent was entitled to arrears of PP during the relevant period, I was first required to consider:
· Whether a letter from the Department said to have been sent to Ms Catt on 18 June 1999 advising her of the reduction in her parenting payment was "given" pursuant to sections 1302A(1) and 23(12) of the Act;
· Whether section 511(3) and in the alternative, section 1243A of the Act operated to preclude the payment of arrears where application for review was made outside the prescribed thirteen week period, even if an administrative error of the Respondent had occurred.
I must say at the outset that Ms Catt was a most credible witness and presented her case well. I was somewhat disappointed with the preparation of the Respondent's case. Mr Slattery had prepared a comprehensive submission titled Respondent's Statement of Facts and Contentions with relevant attachments, which was admitted into evidence as Exhibit R2. However, on the first page he had failed to record the dates relevant to Ms Catt. They appeared to be dates relating to another matter. These were amended during the hearing.
Mr Cox, who replaced Mr Kenny as the advocate at the hearing, appeared ill-prepared and raised only very few points, which I have considered, amongst other relevant material, in the paragraphs which follow. I have also taken into account Mr Slattery's lengthy submission on this matter.
I noted that the Respondent stated at paragraph 6 of Exhibit R2 dated 29 September 2000, that the Department was in the process of verifying Mr Morris' actual gross earnings for the period 18 June 1999 to 22 November 1999. It was disappointing that this had not been done by the time of the Hearing.
WHETHER A LETTER FROM THE RESPONDENT DATED 18 JUNE 1999 WAS "GIVEN" PURSUANT TO SECTION 1302A OF THE SOCIAL SECURITY ACT 1991.
I turned first to consider whether the letter of the Department of 18 June 1999, which was before the Tribunal at T4, was "given" to Ms Catt pursuant to section 1302A(1) of the Act. I noted that in her evidence, Ms Catt stated that she did not receive the letter, and that she was only made aware of its existence when she contacted the Respondent regarding her entitlement to PP on 22 November 1999 after she realised that her payments were incorrect.
Section 1302A of the Act provides that if a letter notifying a decision is sent to the postal address of a person last known to the Secretary, as was said to have been done in this case, the person is deemed to have received the letter. Specifically, section 1302A(1) of the Act provides:
"1302A(1) If a notice of a decision under this Act 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 pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1: compare section 28A of the Acts Interpretation Act 1901
Note 2:Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
…"

Sections 28A and 29 of the Acts Interpretation Act 1901 also outline the process for the "service" of a document. They provide, as relevant:
"28A(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or …
29(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
…"

The Respondent submitted that the letter of 18 June 1999 was sent by pre-paid post to Ms Catt's correct home address (the postal address of the person last known to the Secretary (section 1302A of the Act)) and therefore, notice of the decision taken for purposes of the Act had been "given" to Ms Catt.
The Respondent further submitted that in cross-examination the Applicant had affirmed that the address on the letter at T4/9 was her correct mailing address and that she had resided at that address of a number of years. It was submitted that prior to 19 April 1999, the Applicant's address was recorded as 30 Lansdowne Road, Lansdowne and although it was later given a name change to 30 East Lansdowne Road, Lansdowne, "Centrelink have no record of this letter, or any other letter sent to the respondent (sic) in recent years having been returned to Centrelink as unclaimed."
I noted that there had been a change in the street name of the Applicant's postal address, from Lansdowne Road to East Lansdowne Road (as it is now known). I also noted that the Applicant had said in evidence that there was no other "number 30" either Lansdowne or East Lansdowne Road, and that the street name change had not caused problems with her other mail. I noted in particular Ms Catt's comments at T33/56 that:
"… some of my mail is addressed "30 East Lansdowne Rd" and some is addressed "30 Lansdowne Rd". I wish to assure you that both of these addresses refer to the same place. There was a change made by our local council – to add the "East". As you may be aware, all people at Lansdowne collect their mail in person. Our local Post Office has confirmed with me that either address is adequate."

I accepted the evidence of Ms Catt that she not only kept an extensive file of all communications from the Respondent but followed up all information she conveyed to the Department thoroughly. Ms Catt has consistently maintained that she did not receive a letter from the Respondent on 18 June 1999, and although that is not conclusive, I noted that this letter had not been returned to the Department.
Ms Catt did, however, express her concerns about the accuracy of the mailing system used by the Respondent. I noted at T1/1, that Ms Catt said:
"I have major concerns in regards to the incompetent manor (sic) in which Centrelink operates its mailing system. I believe that it was due to Centrelink incompetence that I was not informed of the amount of income they were using to reduce my Parenting Payments from June 18, 1999."

I also noted Ms Catt's comments at T13/28, regarding the mail she received from the Respondent in general, in which she stated:
"I also get dismayed by the number of letters I receive some weeks: many of them contradict each other or are completely inaccurate. If I want to check the information I have to spend hours getting engaged signals or, if I'm lucky enough to get through I have to spend afternoons by the phone waiting for someone to ring me (which they rarely do). I am a reasonably intelligent person and I find the maze of letters and information a nightmare. It gets extremely difficult to have any working knowledge of my rights and responsibilities because of the information nightmare … I have kept a file of every letter we have received and there would be around 150 letters in an 18 month period."
Ms Catt drew the Tribunal's attention to further problems that she had faced in respect of mail from the Respondent on or about 19 January 2000 as recorded at T25/45 and T34/57. While I noted that the date of the wrongly addressed letter was outside the relevant period of 18 June 1999 to 22 November 1999, Ms Catt submitted that it demonstrated that the Respondent's mailing system was not perfect, even though the Department may have considered it thus. She said further that it:
"… undermines the credibility of their mailing system beyond doubt …I feel that this legitimises what I already knew – that they did not even send the letter they claim to have sent back in June last year." (T28/50)

The Respondent submitted that the letter of Mr Col Haines date stamped 31 July 2000, which was before the Tribunal at Exhibit A1, was not conclusive of the non-delivery of the letter dated at T4/9. I agreed, noting that Mr Haines was able to give a summary of the system of mail collection for residents of Lansdowne only, rather than being able to recall a specific instance of collection or non-collection.
It was submitted on behalf of the Respondent that the letter of 18 June 1999, stipulated that any request for review of a decision of the Respondent, in this case, to reduce Ms Catt's PP, must be within thirteen weeks (section 511(3) of the Act) after the notice was "given" (section 1302A of the Act). Accordingly, it was submitted that no arrears could be paid for any reason where a person (Ms Catt) had sought review of a decision more than thirteen weeks after being given written notice of the decision.
At paragraph 49 of Exhibit R2, Mr Slattery for the Respondent, maintained that as the letter dated 18 June 1999 has been:
"… 'sent by pre-paid post to the postal address of the person last known to the Secretary' … 'notice of the decision is taken, for the purposes of this Act, to have been given to the person'."

I was mindful that the address on the purported copy of the letter to Ms Catt dated 18 June 1999 was her correct address. Given the very minor discretion available in section 1302A(1) of the Act which states that if a notice of a decision under the Act is sent by pre-paid post to the postal address of the person last known to the Secretary, notice of the decision is taken for purposes of the Act to have been "given" to the person, I also looked to sections 28A and 29 of the Acts Interpretation Act 1901 for further guidance.
Sections 28A and 29 of the Acts Interpretation Act 1901 essentially mirror the requirements under section 1302A(1) of the Act. They provide that notice is served or in the case of the Social Security Act 1991, "given", where a communication has either been left or sent by pre-paid post to the last known address of the person (section 28A) or where the document has been properly addressed, prepaid and posted as a letter (section 29).
I noted that in instances where section 1302A of the Social Security Act 1991 and sections 28 and 29 of the Acts Interpretation Act 1901 apply, section 23(12) of the Social Security Act 1991 stipulates that a notice is "given" under either section, even when the Secretary is satisfied that it was not received.
"23(12) If:
(a)section 1302A of this Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 1302A applies, or sections 28A and 29 apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
NoteAn example of a circumstance that is likely to satisfy the Secretary that the person did not actually receive the notice is if the notice is sent back to the Department marked "return to sender" or "not at this address" or "whereabouts unknown".
…"
I noted that in the Respondent's Statement of Facts and Contentions at Exhibit R2, the Tribunal referred me to Fancourt and Mercantile Credits Ltd (1983) 154 CLR 87 and to the discussion there of deemed receipt of notices. I noted that in both Fancourt and the Acts Interpretation Act 1901, the concept is of deemed receipt of a notice, whereas in section 1302A of the Social Security Act 1991, the concept is of notice "given". As to the Social Security Act 1991, provided that a pre-posted notice is "given" to the person at the address last known to the Secretary, and there is no proof it has not been "given", the communication will be deemed to have been received. In this case, notwithstanding Ms Catt's non-recollection of receiving a notice, the letter of 18 June 1999 was not returned to sender, and no other objective evidence of its non-receipt was provided. There were no floods or other disruption to mail activities in June 1999 and although Ms Catt did mention in her evidence, certain departmental inefficiencies which occurred from time to time, I was not satisfied from the evidence that there were departmental difficulties with mail at the relevant time.
I have come to the conclusion from the evidence before me that the letter at T4 was a copy of the letter of 18 June 1999 sent to Ms Catt by the Department, and that it had been "given" to her within the terms of section 1302A of the Act.
Therefore, I find Ms Catt was given notice that her PP was being reduced due to calculations based on the income figure of $699.38 and that she would have to have contacted the Department within thirteen weeks of the "giving" of the letter dated 18 June 1999 in order to have been eligible for any arrears. I have no doubts about the veracity of Ms Catt's evidence, and consider there are issues of procedural fairness if a person is to respond to a letter that she did not receive. However, I am bound to apply the legislation as it stands, and accordingly I cannot apply any discretion to find that the letter was not "given" to Ms Catt.
WHETHER SECTION 511(3) PRECLUDES THE PAYMENT OF ARREARS EVEN IF THE DECISION TO REDUCE ENTITLEMENT TO PP WAS MADE AS A RESULT OF AN ADMINISTRATIVE ERROR OF THE RESPONDENT
Mr Cox submitted that the SSAT had made the correct and preferable decision in applying sections 23(12), 511(3) and 1302A of the Act to preclude the payment of arrears of PP to the Applicant for the period 18 June 1999 to 22 November 1999. While he agreed that it produced a harsh result for the Applicant, he submitted that the intent of the legislators was clear and it expressly did not allow for the consideration of special circumstances.
Mr Cox further submitted that the calculation of the Applicant's entitlement to PP from the figure of $699.38 "was not unreasonable". He directed the Tribunal's attention to the fact that Mr Morris, for the four weeks ending 17 June 1999, had earned a total of $1,930.28. Mr Cox said that if his income had changed, the Respondent had no way of knowing unless advised by the Applicant. Notwithstanding, I noted that Ms Catt had a number of pay slips for her partner, Mr Morris, and accepted that she informed the Respondent in June 1999 that her partner's income had increased unusually due to the illness of his employer and his need to work increased hours to cover his employer's absences. I also accepted the Applicant's evidence that Mr Morris' increased earnings were not representative of his fortnightly income, which I accepted was a rate of $540. per fortnight. In this respect, I noted at Annexure D2 of the Respondent's Statement of Facts and Contentions, before the Tribunal at Exhibit R2, that for the period 12 March 1999 until 12 June 1999, Mr Morris's earnings were recorded as being in the vicinity of $270.60 per week. This was of course, except for the two week period from 21 May 1999 to 4 June 1999, when his income substantially increased.
Notwithstanding, it was submitted on behalf of the Respondent, in reference to the calculation of Ms Catt's entitlement to PP on the figure of $699.38, at paragraph 19 of Exhibit R2, that:
"As long as an officer is acting under powers delegated to him or her by the Secretary, Department of Family and Community Services, any decision they make under the provisions of the Social Security Act 1991 is lawful even if the decision is incorrect."
According to Mr Slattery, in his Statement of Facts and Contentions at paragraph 61, where the decision was made by a properly delegated decision-maker was:
"… based on an error of fact or the incorrect application of the law it is nonetheless a lawful decision.
…
62. Whether any error can be remedied on appeal will depend on the particular facts of the case and the application of the relevant provisions of the Act."
I accepted the Respondent's submission that even though the Department may used inaccurate figures to calculate Ms Catt's entitlement for PP, its decision was not unlawful.
APPLICATION OF SECTION 511(3) OF THE SOCIAL SECURITY ACT 1991
I then turned to look at the specific provisions of section 511(3) of the Act to see whether the legislation enabled the payment of arrears, where the decision of the Respondent was incorrect. Section 511(3) of the Act provides:
"511(3) If:
(a)a decision (in this subsection called the previous decision) is made in relation to a parenting payment; and
(e)a notice is given to the person to whom parenting payment is payable advising the person of the making of the previous decision; and
(f)the person applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
(g)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
…"
Mr Cox submitted that the provision was very specific, and that the intent of the legislation was clearly restrictive. He said that unless the decision of the Respondent dated 18 June 1999 with regard to Ms Catt's PP was not appealed within thirteen weeks, any favourable determination made as a result of a later request for a review, would take effect on the day on which the review was sought, namely 22 November 1999.
Ms Catt submitted that she had no way of knowing about the decision to base her PP entitlements on the figure of $699.38 and the thirteen week period within which she could seek a review, as she did not receive the Department's letter dated 18 June 1999 and was unaware of its existence until she contacted the Department to check her entitlement in November 1999.
I was mindful of the decisions, amongst others, of Secretary of Social Security and Manley (AAT 10285, 11 July 1995), Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207 and Secretary, Department of Family and Community Services and Warby (2000) AATA 1067. I noted in those cases that the Tribunal Members were sympathetic towards citizens who had suffered injustice due to administrative error of the (then) Department of Social Security. However, it was nevertheless held that arrears could not be paid. Other decisions, and there are many more where the thirteen week rule has operated to prevent payment of arrears, include: Re Oates and Secretary, Department of Social Security, (1994) 37 ALD 241 and Quynh Ngoc Luong and Secretary, Department of Social Security (AAT 13355, 25 September 1998).
I was mindful of the decision Secretary, Department of Family and Community Services and Thipthorp (1999) AATA 823. In that case, the Tribunal found that there was insufficient evidence to establish that a notice of a decision to cancel Mrs Thipthorp's Family Payment was indeed issued by Centrelink, and accordingly the Tribunal held that arrears were payable. I distinguish Thipthorp (supra) because in Ms Catt's case there was no evidence before me to convince me on the balance of probabilities that the letter at T4 was not a faithful copy of the letter sent to Ms Catt at her current address. I was satisfied that the requisite letter had been "given" to Ms Catt pursuant to section 1302A(1) of the Act.
I further noted the decision of the Tribunal in Estate of Thomas Biggin and Secretary Department of Family and Community Services [2000] AATA 125, where Dr Campbell of the Tribunal held that the thirteen week rule did not apply because the decision to cancel Mr Biggin's Disability Support Pension was based upon a factual error by the Department. I noted the submissions of Mr Cox for the Respondent that the particular circumstances of that case were substantially different from Ms Catt's, and that the Department considered that decision incorrect in terms of the application of the legislation.
I have considered the application of section 511(3) of the Act, and find that even if the decision to reduce Ms Catt's PP was incorrect, section 511(3) of the Act prevents the payment of arrears in circumstances where an application to review was made more than thirteen weeks after the decision to reduce the Applicant's PP.
I find, after considering the application of section 511(3) of the Act, that there is no discretion to allow arrears of PP to be paid to Ms Catt because of the finding I have made that the letter of 18 June 1999 was "given" to her pursuant to section 1302A(1) of the Act. It was not a point of dispute, and I was mindful that she had applied for a review well outside the thirteen week window.
APPLICATION OF SECTION 1243A(1) OF THE SOCIAL SECURITY ACT 1991
The submission of the Respondent was that even if a discretion was available to prevent the operation of the thirteen week rule in section 511(3) of the Act, section 1243A of the Act stands alone to prevent arrears of social security benefits being paid to an Applicant seeking review of an adverse decision outside of the prescribed thirteen week period.
Section 1243A of the Act provides as follows:
"1243A Certain determinations not to be revived
1243(1)If:
(a)the Secretary makes a determination (the first determination) that:
(i)a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the second determination):
(ii)to cancel the social security payment; or
(iii)to reduce the rate at which the social security payment is payable; and
(c)notice of the second determination is given to the person; and
(d)the person applies under section 1240 for review of the second determination; and
(e)the application is made more than 13 weeks after the notice is given; and
(f)a decision (the review decision) is made by the Secretary, the CEO, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i)to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i)the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2) In this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a)the person applies for review of another determination or decision; and
(b)an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
Note 1:For the meaning of given in relation to a notice of a decision see section 1302A.
Note 2:A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3:This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4:If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increased rate, certain sections (eg section 887) restricts the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
…"
I noted that section 1243A was inserted into the Act with the purpose of further limiting the payment of arrears. Pursuant to the section, once a decision has been made to cancel a social security payment, unless that decision is appealed within thirteen weeks of the decision, or no notice was given of the decision, then arrears cannot be paid (Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631). Thus, the decision to pay a social security payment, (once granted), can commence no earlier than the date on which the person has sought review of the adverse decision, in the instant case, the decision of the Respondent to reduce Ms Catt's PP.
I noted in particular sections 1243(1)(h) and (i) of the Act which make it clear that the mere setting aside of the determination, in this case, to reduce Ms Catt's PP does not of itself revive the first determination to award/continue the payment. Thus, even if the reduction in Ms Catt's PP was not the correct and preferable decision to have been made, the operation of section 1243A and the thirteen week rule prevents arrears from being payable to her. There is no discretion for me to exercise, and I am only able to find that the earliest date on which Ms Catt's PP can commence is from the date of her application on 22 November 1999.
I further note that whilst I am bound by the legislation and not the Explanatory Memorandum, I am mindful that the Explanatory Memorandum relating to Social Security Amendment Act (No.2) 1993 in which section 1243A(1) was introduced, makes it clear that the purpose of the legislation is that arrears in social security payments will not be paid earlier than the date on which a person seeks a review of an adverse decision unless no notice of the decision was given to the person, or the review is sought within thirteen weeks of the notification.

I find after considering the application of section 1243A(1) of the Act, that there is no discretion to allow arrears of PP to be paid to Ms Catt because she applied for a review of her PP entitlement in excess of the thirteen week period as prescribed by the Act.
WHETHER THE APPLICANT CAN OBTAIN A REMEDY PURSUANT TO THE COMPENSATION FOR DETRIMENT CAUSED BY DEFECTIVE ADMINISTRATION SCHEME
While I have found that there is no discretion to direct the payment of arrears for PP for the period 18 June 1999 to 22 November 2000, even where the reduction of the Applicant's PP entitlement was as a result of an administrative error on the part of the Respondent, I am mindful that a scheme exists to compensate persons who have suffered detriment as a result of defective administration, namely, the Compensation for Detriment caused by Defective Administration ("CDDA") scheme.
I accepted the evidence of the Applicant, that she advised the Respondent, on or about 17 June 1999, in an Assessment for Parenting Payment form (Annexure D to Exhibit R2) that the income of her partner, Mr Morris, was approximately $540. per fortnight, save unusually high earnings for the period 21 May 1999 to 4 June 1999, which were as a result of the illness of his employer.
The evidence before me indicated that in processing this form, the Respondent used the figure of $699.38 per fortnight to calculate Ms Catt's entitlement to PP, which was incorrectly entered into the Centrelink records despite Ms Catt providing the information to the Respondent directly of an amount of income of approximately $540.
I accepted the evidence of the Applicant that not only was she a meticulous record keeper insofar as her dealings with the Respondent were concerned, but that she also followed up each contact she made with the Department. I further accepted that the only reason why the Applicant did not realise that a mistake had occurred and that she was receiving less than the PP to which she was entitled, was due to serious health problems and hospitalisation at the time. In this respect, I noted and accepted the Applicant's comments at T13/27:
"I only became aware of the mistake on Monday of this week (21/11/99) because I sat down with one of Centrelink's booklets and was reading through it. When my calculations did not match what we had been receiving, I rang the information line. This was the first time that I was aware of the actual amount of income that was being used to calculate my payments.
I might have discovered the mistake sooner, except that I have had two major health problems since July: I spent time in hospital in July with a major illness and also have had a number of biopsies done over the last few weeks. My illnesses have been a considerable financial strain: I am distraught that my Parenting Payments were being reduced at the same time that we have been most in need."
I noted that while the Act does not give a decision-maker any discretion to award the payment of arrears where a decision has been made pursuant to a Departmental error, I, nevertheless, am of the opinion that Ms Catt should be entitled to compensation for financial detriment that she has incurred through no fault of her own, namely the Respondent's use the figure of $699.38 to calculate her PP entitlements.
I accepted that Ms Catt has always been vigilant in her dealings with the Department, and has pro-actively advised them on a number of occasions where she was overpaid PP (T13/26). I was satisfied that had Ms Catt received the letter dated 18 June 1999, she would have contacted, or arranged for a person to contact, the Department on her behalf to rectify the error within the thirteen weeks prescribed.
I was also satisfied that Ms Catt regularly informed the Department as to any variations in her partner's income and did so on 17 June 1999, prior to the decision to reduce PP and subsequent letter of the Department at T4/9.
I found that the Applicant did everything possible to ensure that the Respondent was aware of, and used the correct information to calculate her entitlement to PP, and that it was Departmental error which caused her PP entitlement to be assessed on the incorrect amount of her partner's income of $699.38.
Therefore, I strongly recommend that the Department acknowledge its administrative error and compensate the Applicant pursuant to the CDDA Scheme for loss of arrears of PP to which she would otherwise have been entitled, had the correct information been used to calculate her PP entitlement.
DECISION
The Tribunal affirms the decision of the Respondent Secretary Department of Family and Community Services dated 22 November 1999 as affirmed by the Authorised Review Officer on 21 December 1999 and the SSAT on 21 March 2000 to refuse the payment of arrears of parenting payment to the Applicant for the period 18 June 1999 to 22 November 1999 pursuant to section 511(3) and in the alternative section 1243A of the Act.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 November 2000
Date of Decision  14 December 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Self-Represented
Counsel for the Respondent    N/A
Solicitor for the Respondent    Mr A Cox