Confidential and Secretary, Department of Social Services (Social services second review)
[2016] AATA 158
•18 March 2016
Confidential and Secretary, Department of Social Services (Social services second review) [2016] AATA 158 (18 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2392
Re
Confidential
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 18 March 2016 Place Sydney First, the decision to refuse the Applicant’s claim for age pension dated 6 February 2014 is affirmed.
Second, the decision to cancel the Applicant’s Disability Support Pension dated 20 December 2012 is affirmed.
...............................[sgd].........................................
Professor R McCallum AO, Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – cancellation of payment – Applicant did not reply to notices – notices sent to last known address – decision affirmed
SOCIAL SECURITY – Age Pension – application rejected – Applicant not in Australia when claim made – decision affirmed
LEGISLATION
Social Security Act 1991 s 23
Social Security Administration Act 1999 ss 29, 62, 68, 81, 137, 237
CASES
Dixon and Secretary, Department of Employment and Workplace Relations [2006] AATA 872
Walden and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1064
REASONS FOR DECISION
Professor R McCallum AO, Member
18 March 2016
INTRODUCTION
The Applicant was born in Lebanon, he immigrated to Australia in 1973 and is an Australian citizen.
On 13 November 2003, the Applicant was granted disability support pension (DSP), and on 7 July 2004 the Applicant was granted unlimited portability of his DSP. In other words, pursuant to the unlimited portability rules contained in the Social Security Act 1991 (Cth) (the SS Act), as the Applicant was assessed as severely disabled it was lawful for him to return to live in Lebanon with family members and to continue to receive DSP while residing outside Australia. From Centrelink records which are before this Tribunal, it appears that the Applicant's severe disability assessment was owing to his paranoid schizophrenia.
On 17 February 2004, the Applicant travelled to Lebanon for approximately seven months and returned to Australia on 27 September 2004. On 30 October 2004, the Applicant departed Australia for Lebanon, and he has remained in Lebanon ever since.
From the medical evidence before this Tribunal, the Applicant still suffers from schizophrenia, and in 2007 he had a stroke and is now in a wheelchair. He lives with his sister in Lebanon and it appears she is an elderly lady.
The Applicant has two brothers, Mr N and Mr A. Mr N resides in Lebanon and Mr A lives in Sydney. Mr C also lives in Sydney. He is Mr A's son and of course he is the Applicant's nephew.
THE SUSPENSION AND CANCELLATION OF THE APPLICANT’S DSP
Before April 2010, Centrelink had sent letters to the Applicant care of the Byblos Bank in Beirut.
A Centrelink file note dated 14 April 2010 records that Centrelink was contacted by a person on behalf of the Applicant on or about 14 April 2010, giving a new address in Lebanon for the Applicant. I shall call this address the 14 April 2010 address which is as follows.
Achrafieh Mahata Street, Bld Hassaneif 7th Floor, Beirut, Lebanon.
The Applicant turned 65 in October 2012. On 2 August 2012 Centrelink sent a letter to the Applicant at the 14 April 2010 address. The letter enclosed a form to complete for the purpose of determining whether Centrelink could transfer the Applicant from DSP to age pension. The letter requested the return of the information by 6 September 2012.
On 6 September 2012, Centrelink posted a copy of the 2 August 2012 letter to the Applicant at the 14 April 2010 address, also enclosing the forms, and requesting a return date of 4 October 2012. Centrelink received no response to these letters.
On 4 October 2012, Centrelink sent another letter to the Applicant at the 14 April 2010 address suspending his DSP as Centrelink did not receive a reply to the two earlier letters.
On 20 December 2012, Centrelink cancelled the Applicant’s DSP. The Applicant was informed of the cancellation by a letter posted to him at the 14 April 2010 address.
On 15 July 2013, six months after the cancellation of DSP, either the Applicant or Mr N contacted Centrelink. This contact was taken by Centrelink to be a request for an internal review of the decisions to suspend and to cancel his DSP.
On 17 July 2013, Centrelink again sent an income and assets review form for the Applicant to complete.
On 12 December 2013, Mr A was recorded as the Applicant's nominee in Centrelink matters. Therefore on 16 December 2013, Centrelink sent the same income and assets form to Mr A which had been sent to the Applicant on 17 July 2013.
On 21 January 2014, the Applicant's address was changed to a post office box number in Beirut.
On 21 January 2014, a claim for age pension was lodged on behalf of the Applicant by Mr A. The income and assets forms were completed and lodged with this application.
On 6 February 2014, Centrelink rejected the application for age pension on the basis that the Applicant was not physically present in Australia at the time of claim.
On 13 March 2014, a review was taken to have been requested by way of a letter from Mr A. On 22 July 2014, an Authorised Review Officer (ARO) affirmed the decision to reject age pension.
On 7 January 2015, almost six months following the ARO decision, the Applicant lodged an application for review with the former Social Security Appeals Tribunal (SSAT).
The SSAT hearing occurred on 7 April 2015. the Applicant remains in Lebanon, and so at the hearing he was represented by Mr A and Mr C. The SSAT affirmed the decisions under review.
On 15 May 2015, the Applicant applied for a review from this Tribunal.
THE ISSUES BEFORE THE TRIBUNAL
The issues which I have to decide as I stand in the shoes of the Secretary of the Department of Social Services are as follows.
·First, was the decision dated 6 February 2014 to refuse the Applicant age pension correct?
·Second, was the decision dated 20 December 2012 to cancel the Applicant's DSP correct?
·Third, if the decision to cancel the Applicant's DSP is set aside, can he receive arrears of his DSP?
THE HEARING
The Applicant did not attend the hearing as he is in Lebanon. Mr C attended the hearing on behalf of the Applicant. Mr C gave sworn evidence and I found him to be an honest and truthful witness.
Mr N gave sworn evidence by telephone from Lebanon. At times the phone line was indistinct. In my view, Mr N did his best to assist this Tribunal.
CONSIDERATION
The Tribunal has before it the documents compiled pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. There are also a bundle of supplementary documents. Finally, at the hearing before the SSAT, Mr C handed up several documents which are before this Tribunal. The documents which are not in the T documents are: an email message from the Applicant to Centrelink dated 6 September 2013; a letter from Dr Paul Bejjani in Lebanon dated 25 February 2015; and a letter from Dr Ramzi Haddad in Lebanon dated 25 February 2015.
Two Recent Emails
The date of the hearing was 15 February 2016. On 10 March 2016, the Tribunal received an email from Mr C. In this email, he confirms that the Applicant's address in Lebanon is as follows.
[The Applicant]
ACHRAFIEH
Mahata Street
Hasanieh Building 7th Floor
Beirut, LEBANON.
On 9 March 2016 the Tribunal received an email from Mr N. He wrote that the phone line from Bereuit to Sydney was not clear. Mr N wrote as follows.
I declair [sic] that MAHATA ST. IS A WRONG ADDRESS.
The Tribunal forwarded the two emails to the Respondent who sent the Tribunal a brief response on 16 March 2016. In the circumstances, I have accepted the two emails into the evidence before me.
Was the decision dated 6 February 2014 to refuse the Applicant age pension correct?
Subsection 29(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) sets out the general rule for claiming social security payments. There are variations which do not apply to the Applicant. Subsection 29(1) relevantly provides as follows.
... [A] claim for a social security payment ... may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
While the Applicant satisfies the Australian resident requirement in paragraph (a), he does not satisfy the requirement in paragraph (b) because he was not "in Australia" on 21 January 2014 when he made his claim for age pension.
At the hearing, Mr C, very properly did not contend that this rule does not apply to the Applicant.
I find that as the Applicant was not in Australia on 21 January 2014 when he claimed age pension, the decision dated 6 February 2014 to refuse his claim was correct.
Was the decision dated 20 December 2012 to cancel the Applicant's DSP correct?
The Respondent asserted that the Secretary was empowered to cancel the Applicant's DSP under subsection 81(1) of the Administration Act. This provision relevantly provides as follows.
If:
(a) a person who is receiving a social security payment ... has been given:
(i) a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii) a notice embodying a requirement under Division 1 of Part 5; and
(b) the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended.
It is clear that the two letters with their enclosed forms dated 2 August 2012 and 6 September 2012 which were posted to the 14 April 2010 address of the Applicant were notices within the meaning of subsection 68(2) of the Administration Act. As Centrelink did not receive any response to these two letters, or to its suspension letter dated 4 October 2012, The Respondent asserts that the Secretary was empowered to cancel under subsection 81(1) of the Administration Act.
The argument put for the Applicant is that he did not receive the two letters dated 2 August 2012 and 6 September 2012 because Centrelink posted them to the wrong address.
The Applicant and Mr N wrote a letter to this Tribunal dated 18 October 2015. Omitting formal parts, this letter reads as follows.
We the undersigned, [the Applicant] and [Mr N], did not authorize or inform CENTERLINK to change [the Applicant’s] registered Address from the Byblos Bank to Mahata Street, Achrafieh, in April 2010,
If there are any queries or questions please do not hesitate to contact me,
Yours sincerely
[The Applicant, Mr N]
In his evidence, Mr N said that he did not contact Centrelink in 2010 to change the Applicant's address. Mr N also said that he had been living in the family home with the Applicant since about 2010.
In its decision of 7 April 2015, the SSAT stated as follows.
29. ... [Mr C] told the tribunal that the letters sent to [the Applicant] in Lebanon in 2012 were not correctly addressed. He said that there is no such street as Mahata Street in the town of Achrafieh in Lebanon – the correct street name is St Louis Street.
In his evidence before this Tribunal, Mr N said that in about February 2013, he went to the Byblos Bank to inquire about payments to the Applicant’s account. He said that the bank gave him a bank statement dated 24 February 2012. This bank statement was subsequently attached to one of the Applicant's income and assets forms.
The address on this bank statement reads as follows.
[The Applicant]
Mhatta Street
Archrafieh – Beyrouth – Lebanon
This address is remarkably similar to the 14 April 2010 address which for convenience I again reproduce.
Achrafieh Mahata Street, Bld Hassaneif 7th Floor, Beirut, Lebanon.
The bank statement address spells "Mhatta", while on the 14 April 2010 address it is spelled as "Mahata". The bank statement address spells Beirut using what appears to me to be the French spelling. Finally, the 14 April 2010 address contains greater detail with "Bld Hassaneif 7th Floor".
In his email dated 10 March 2016, Mr C set out the Applicant's Lebanon address. In my view, it is remarkably similar to the 14 April 2010 address. For convenience, I reproduce the address from Mr C’s email.
[The Applicant]
ACHRAFIEH
Mahata Street
Hasanieh Building 7th Floor
Beirut, LEBANON.
The Deeming Provisions
Section 237 of the Administration Act deals with the posting of notices by Centrelink. It relevantly provides as follows.
(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.
Put briefly, section 237 provides that if Centrelink posts a notice of a decision to the last known address which Centrelink has for the client, notice of the decision is taken to have been given to the client.
Subsection 23(12) of the SS Act provides as follows.
If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; ...
section 237 of the Administration Act ... [applies] to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
This awkwardly worded subsection means that where a notice is posted to the last known address of the client, the client will be deemed to have received the notice, even if Centrelink is satisfied that the client did not receive the notice.
At first blush, these provisions appear to be rather harsh. However, given the volume of Centrelink correspondence and the very large number of clients, these provisions are understandable as they truncate arguments over client addresses.
In Dixon and Secretary, Department of Employment and Workplace Relations [2006] AATA 872, this Tribunal held that even though the client was itinerant, by virtue of section 237 of the Administration Act the notice which was sent to his last known address was a valid notice.
In Walden and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1064, the facts are somewhat akin to the case before me. In Walden, the elderly Applicant suffered from dementia. Centrelink altered her address from a post office box number managed by her son, to the Applicant's residential address. Evidence was given about Centrelink's procedures to the effect that addresses were not altered unless Centrelink received a request to do so. The son said that he did not know who would have requested Centrelink to change his Mother's address. Centrelink sent notices to the residential address which were not responded to by the Applicant.
Senior Member Dr KS Levy RFD, stated as follows.
19. Section 237 deems that a person has been given notice of a decision where notice has been sent by prepaid post to the postal address of the person last known to the Secretary (s 237(1)(c)). The requirement of notice is satisfied under Social Security law by properly addressing, prepaying and posting the document as a letter (s 237(2)). If those requirements are met, notice is deemed to have been given to the person when the letter would have been delivered “…in the ordinary course of the post unless the contrary is proved”.
20. I accept that s 237(1)(c) and 237(2) have been satisfied. In terms of s 237(3), it could be expected that those letters would have been delivered within two to three working days. ... In any event, there has been no evidence to show that the letters were not delivered.
Conclusion Regarding The Decision To Cancel DSP
I find the issue of the validity of the notices which were sent to the Applicant on 2 August 2012 and 6 September 2012 a difficult matter to resolve. If these notices were not validly sent to the Applicant, the pre-condition for the Secretary or the Secretary's delegate to exercise the power of cancellation did not exist.
Having regard to the evidence before me, I find that the Secretary's notices did comply with section 237 of the Administration Act because they were posted to the Applicant's last known address. I find it to be implausible that Centrelink acted to change this address in April 2010 without receiving a request from the Applicant or from a member of his family. I take into account that the Applicant's address on the Byblos Bank statement dated 28 February 2012 is remarkably similar to the 14 April 2010 address. I also take into account the Applicant’s family's failure to promptly inquire why correspondence from Centrelink was no longer being received and why payments of the Applicant's DSP ceased on 4 October 2012.
Accordingly, as the notices which were sent to the Applicant were valid notices which were posted to his last known address, the Secretary or the Secretary's delegate had power under subsection 81(1) of the Administration Act to cancel the Applicant's DSP when he did not comply with the requirements of the notices. I further find that the decision to cancel the Applicant's DSP dated 20 December 2012 was correct.
Could the Applicant have received arrears of his DSP if the decision had been set aside?
As I have upheld the cancellation decision, it is strictly not necessary for me to answer this question. However, in deference to the arguments before me, I make the following comments.
Subsections 137(1) and 137(5) of the Administration Act provide as follows.
(1) This section has effect 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 to a person at a particular rate; and
(b) the Secretary makes a determination (the second determination):
(i) cancelling the social security payment; or
(ii) reducing 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 129 for review of the second determination; and
(e) the application is made more than 13 weeks after notice of the second determination was given; and
(f) a decision (the review decision) is made by the Secretary, 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.
...
(5) If this section has effect:
(a) the second determination does not become void from the time when it was made; and
(b) the mere setting aside of the second determination does not of itself revive the first determination.
In Thiagarajan and Department of Employment and Workplace Relations [2007] AATA 2065, Senior Member P W Taylor SC gives a detailed history of this provision and of the antecedent provisions in the prior statute.
Simply put, if an applicant does not seek review of a decision cancelling social security payments within 13 weeks of the cancellation decision, while this Tribunal may set aside the cancellation decision it will have no practical effect. This is because subsection 137(5) paragraph (b) makes it clear that the setting aside will not revive the earlier decision to grant the social security payments. In other words, no arrears of payments can be made to the Applicant.
In the case before me, either the Applicant or Mr N contacted Centrelink on 15 July 2013 which was more than 13 weeks since the decision to cancel the Applicant's DSP which was dated 20 December 2012. This inquiry was taken by Centrelink to trigger the subsequent review by the ARO. This delay of more than 13 weeks brought into play section 137 of the Administration Act which precludes the payment of social security arrears even when the cancellation decision is set aside.
I have deep sympathy for the Applicant and his family. Owing to his circumstances, coupled with a tangle of statutory provisions, the Applicant finds himself without any Australian social security payments whatsoever. With hindsight, a closer observation of the Applicant's circumstances by members of his family may have prevented this misfortune. However, in my own life experiences, the clarity of hindsight is usually only apparent after the events in question.
I hope that the Applicant's medical conditions may improve so that he may travel to Australia where he can again apply for age pension.
DECISION
First, the decision to refuse the Applicant’s claim for age pension dated 6 February 2014 is affirmed.
Second, the decision to cancel the Applicant’s Disability Support Pension dated 20 December 2012 is affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...................................[sgd].....................................
Associate
Dated 18 March 2016
Date(s) of hearing 15 February 2016 Date final submissions received 16 March 2016 Advocate for the Applicant Mr C Solicitors for the Respondent Department of Human Services
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