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

[2016] AATA 532

Chan and Secretary, Department of Social Services (Social services second review) [2016] AATA 532 (26 July 2016)

Division	GENERAL DIVISION
File Number	2015/2990
Re	Tom Chan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	26 July 2016
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – pension not payable – workers’ compensation – periodic compensation payments – arrears – decision affirmed 

LEGISLATION

Social Security Act 1991 (Cth), ss 17, 98, 1166, 1173

Social Security (Administration) Act 1999 (Cth), ss 80, 117, 118

REASONS FOR DECISION

Dr I Alexander, Member

26 July 2016

1. Mr Tom Chan suffered an injury at work in 1991 and has been receiving compensation payments from Allianz Insurance (Allianz) since January 1995.

2. In 1997 Mr Chan qualified for Disability Support Pension (DSP) and has been receiving   compensation affected payments since that time.

3. On 5 November 2014, Allianz advised Centrelink that from 21 June 2014 Mr Chan’s rate of compensation payments was increased to $768.40 per week and then, from 1 October 2014 onwards, to $778.32 per week.

4. On 6 November 2014, Mr Chan’s DSP was cancelled on the basis that the payments he received from Allianz exceeded the allowable limit to receive DSP. Centrelink calculated an overpayment of $3129.14 which was subsequently repaid by Allianz.

5. On internal review, the decision to cancel Mr Chan’s DSP was affirmed on the basis that he had not complied with the requirements of s1166 of the Social Security Act 1991 (Cth) (the Act).

6. In a decision dated 26 May 2015, the former Social Security Appeals Tribunal (SSAT) also affirmed the decision to cancel Mr Chan’s DSP on the basis of failure to comply with s 1166 of the Act.

7. In these proceedings, Mr Chan seeks review of the SSAT decision.

8. At the hearing Mr Chan, who was self-represented, was assisted by an advocate from the National Welfare Rights Network and a Mandarin speaking interpreter.

   ISSUES

9. The power to cancel Mr Chan’s DSP is provided by s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not “qualified for the payment” or “to whom the payment is not, or was not payable;” then the Secretary is “to determine that the payment is to be cancelled or suspended”.

10. The Respondent contends that the decision to cancel Mr Chan’s DSP payment on 6 November 2014 was correct on the basis that the payment was “not payable”.

11. The decision to cancel Mr Chan’s DSP is an “adverse determination” within the meaning of s 117 of the Administration Act. Section 118 of the Administration Act provides rules for determining the day on which an adverse determination takes effect.

12. At the hearing the Respondent submitted that day on which the cancellation took effect was 21 June 2014, which was the date from which he was entitled to receive the increase in his periodic compensation payments.

13. The Respondent relied on subsection 118(2) which provides that if:

    (a)an adverse determination is made following a person having informed the Department of the occurrence of an event or change of circumstances; and

    (b)the person is not paid an instalment of the social security payment after the occurrence of the event or change and before the determination is made;

    the determination takes effect on the day on which the event or change of circumstances occurred.

14. It is not in dispute that the day on which on which Mr Chan’s DSP payment was cancelled was 6 November 2014.

15. It is also not in dispute that Mr Chan did not inform Centrelink of the change in his circumstances and that on 5 November 2015 Centrelink was informed by Allianz that Mr Chan’s compensation payments had increased to $768.40 per week from  21 June 2014 and then, from 1 October 2014 onwards, to $778.32 per week.

16. Furthermore, Mr Chan’s Centrelink payments had continued until they were cancelled on 6 November 2014.

17. It follows, in my view, that subsection 118 (2) does not apply.

18. The preferable position is that day on which the adverse determination takes effect is “on the day on which it is made” in accordance with subsection 118(13)(a) of the Administration Act, that is, 6 November 2014.

19. Therefore, the determinative issue in this review is whether, on 6 November 2014, Mr Chan’s DSP payment was “not payable”.

    MR CHAN’S EVIDENCE 

20. At times during the hearing Mr Chan became quite agitated and refused to answer questions. It became clear that his understanding of the issues before the Tribunal was quite limited, despite several attempts to explain. He appeared to be confused about the relationship between his Allianz and Centrelink payments and expressed a view that there had been some improper collusion with respect to the cancellation of his DSP.

21. Mr Chan stated that Allianz had not made any payments in the period prior to the cancellation of his DSP but failed to acknowledge that these payments has been temporarily suspended because of his failure to comply with his workers’ compensation obligations with respect to medical certificates, attendance at occupational rehabilitation and failure to approve the release of relevant personal information.

22. Mr Chan stated that he was not informed about the increase in his Allianz payments and in fact had not received any payments in the period prior to 6 November 2014. However, he did acknowledge that Allianz had made a payment of about $9000 in December 2014 but claimed that he did not know what the payment was for. He appeared to be confused when it was suggested to him that this payment represented the outstanding suspended payments which included the increased entitlements payable from 21 June 2014. 

    DOCUMENTARY EVIDENCE                     

23. An annotation in Centrelink records dated 5 November 2014 notes, inter alia, the following:

    I have contacted case manager…and she has explained…From 11/8/14 to current cust had been NON COMPLIANT at (sic) no payments made. Cust has now agreed to comply and receiving weeklies in arrears from 11/8/14 to 30/9/14 at $768.40 and continuing from 01/10/14 at $778.32.

24. An annotation in Centrelink records dated 6 November 2014 notes, inter alia, the following:

    Cust has been granted arrears being paid…has been granted arrears back to 11/08/14 at $768.40 weekly to 30/09/14 and from 01/10/14 and continuing at $778.32 weekly…PEN cancelled.

25. A Centrelink letter dated 6 November 2014 informs Mr Chan that his DSP has been cancelled due to a change in his circumstance, namely, a combined annual income of $40,472.80.

26. An annotation in Centrelink records dated 22 December 2014 notes, inter alia, the following:

    Customer had a W/comp injury 01/06/1991. Has been in receipt of $125 per week, however under new Workcover changes, Allianz have now determined that his rate backdated to 11/08/14 is $768.40 and then from 01/10/14 at $778.32. We calculated a partial charge treating these payments as direct deductions this resulted in an OVP of $3129.14 for a period from 11/08/14 to 04/11/14. This has now been repaid by Allianz… rang the insurer….advised that  customer rec’d arrears and payments up to 11/12/14 into his account on the 11/12 /14, reason no further payments have been made as yet is that the customer needs to lodge valid medical certificates and comply with the insurer…

27. In a document dated 14 May 2015 Ms Kimberlee Bower, a representative of Allianz, notes that Mr Chan’s claim is still proceeding and has not been settled and he had been paid up to 11 December 2014. She also states that payments are currently suspended because Mr Chan has not provided any medical certificates “since August 2014” and “has failed to attend all rehab appoints since rehab engaged on 28.10.14”. She notes his failure has occurred despite frequent written warnings and frequent attempts to explain the requirements.

28. Attached to the document was a list of payments indicating weekly benefits paid from 30 January 1995 to 11 December 2014. On 21 June 2014 the weekly benefit was increased to $768.40 per week.

29. In a letter dated 12 August 2015, Ms Bower states that Mr Chan received Workers’ Compensation Payments up to and including 11 December 2014 but his entitlements have now been terminated effective 29 June 2015.

    CONSIDERATION

30. Section 17 of the Act provides compensation recovery definitions. A “compensation affected payment” is defined as including DSP and the payment of arrears of a periodic compensation payment is included in the definition of a “periodic payment period”.

31. Section 1173 of the Act provides that if “a person receives periodic compensation payments” and the person “claims a compensation affected payment in relation to a day or days in the periodic payments period”, the daily rate of the person’s compensation affected payment “is reduced by the amount of the person’s daily rate of periodic compensation”.

32. I am satisfied that the documentary evidence before the Tribunal demonstrates that, as at 6 November 2014, Mr Chan was entitled to periodic compensation payments of $778.32 per week, albeit, that the payment was paid in arrears.

33. I am also satisfied that the entitlement for compensation payments was ongoing at that time, notwithstanding the fact that his payments were subsequently suspended because of his failure to comply with his obligations to the insurer.

34. The relevant rate of DSP at that time was $577.40 per fortnight and Mr Chan was in receipt of more than $1500 per fortnight. It follows that in accordance with s 1173 his compensation affected payment of DSP was reduced to nil.

35. Section 98 of the Act provides that DSP “is not payable to a person if the disability support pension rate would be nil”.

36. I am satisfied that as at the 6 November 2014 Mr Chan’s DSP rate was nil so that DSP was not payable.

    DECISION 

37. For reasons set out above, I am satisfied that on 6 November 2014 DSP was not payable and therefore the decision to cancel Mr Chan’s DSP was correct.

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 26 July 2016

Date of hearing	28 June 2016
Applicant	In person
Solicitors for the Respondent	Mr A Kennedy, Department of Human Services