Cook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 389

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECSION [2008] AATA 389

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/5046

)

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		NORMA COOK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:2 May 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sgd) G.D. Friedman

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. V2007/5046

COOK

and

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY
SERVICES AND INDIGENOUS AFFAIRS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

FRIDAY, 2 MAY 2008

MR B. DICK appears for the applicant
MS K. PAUL appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   There’s no dispute on the facts in this case, that is, that a mistake was made by Centrelink in the calculation of a pension to Mrs Cook.  That error was later corrected.  However, in a letter sent to Mrs Cook giving the total asset amount of $244,668.77 on 14 November 2005, it appears that the figure mentioned by Centrelink was approximately correct.  However, it did not give a breakdown as to how that amount was calculated.  As a consequence of that, according to Mr Dick, who’s representing Mrs Cook, a figure of $70,000 should have been made aware – it should have been told to Mrs Cook that that figure was included, and Mr Dick says that that figure is not an assessable amount, which would have an impact on Mrs Cook’s pension.

According to Mr Dick, because no breakdown of the figure was provided in that letter of 14 November 2005, there was no reason for Mrs Cook to consider seeking review within the 13 weeks specified in the letter. As a consequence of that, she did not seek review within the 13 weeks and when the matter came to the notice of Mr Dick during his annual pension review – when that was pointed out to Centrelink, then Centrelink applied section 109 subsection (3) of the Social Security Administration Act and paid arrears to Mrs Cook from 22 March 2006, which was more than she received before she went to the Social Security Appeals Tribunal but still left her with an amount in arrears.

I listened carefully to the comments made by Mr Dick during the hearing, and I must say I have a certain amount of sympathy with him, and I can understand the frustration that he has endured when trying to seek redress of this issue and other similar matters with Centrelink and has received no satisfactory response.  However, as frustrating as it is, this tribunal’s hands are tied to the extent that it is bound to apply the law as the law stands, and that’s something that Mr Dick seemed to acknowledge during the hearing.  As a consequence, in my view, section 109 subsection (3) is the appropriate subsection to apply and this tribunal is not able to make a decision that’s more favourable to Mrs Cook because the legislation doesn’t provide it.  The section 109 subsection (3) is non-discretionary and I’m bound to follow that section of the Act.

However, I’ve already pointed out to Mr Dick that the Compensation for Defective Administration fund is available for matters where errors have been made by Centrelink.  That’s something that’s outside the legal system and I would encourage Mr Dick to pursue that, once again, on behalf of Mrs Cook.  Other avenues that are open to him – and it’s not for me to give legal advice – but other avenues open to him, of course, are to go to the ombudsman to indicate to the ombudsman that there appears to be disadvantage faced by people who are in the situation that Mrs Cook finds herself in, and I understand from Mr Dick’s comments that he proposes to take the matter further and with a view to getting some kind of legislative change.

That, of course, is a matter for the parliament, but a first start would be to the appropriate members of parliament or to relevant ministers.  So in all the circumstances I’m going to affirm the decision under review.  Mr Dick, you said that certain decisions are awaiting the decision of this tribunal, so I’ve now given you a decision that at least enables you to go to the next level, in whichever way you decide that you wish to go, and you’ve heard my comments about what I think of the situation.  When the law specifies something and doesn’t give any discretion, then that’s really the end of it as far as this tribunal is concerned.  But I hope you take on board the comments that I’ve made.

END OF EXTRACT