Curling and Secretary, Department of Social Services (Social security) - [2024] ARTA 319

Curling and Secretary, Department of Social Services (Social security) [2024] ARTA 319 (28 October 2024)

Applicant: Mr Curling

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/B190085
Tribunal: Member K Hamilton
Place:Brisbane
Date:28 October 2024
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
SOCIAL SECURITY – age pension – proof of life certificate – applicant living overseas – previous certificates signed by son, not an authorised certifier – latest certificate states medical practitioner’s name but declaration not completed and certificate not signed – no official translation provided of documents attached to certificate – letter sent to last known Australian postal address – deemed to have been received – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This matter concerns a decision by Services Australia – Centrelink (Centrelink) to cancel Mr Curling’s age pension on the basis that he had failed to provide a valid ‘proof of life’ certificate.
Mr Curling was in receipt of age pension when he departed Australia on 30 September 2019.
On 18 January 2023, Centrelink wrote to Mr Curling asking him to complete a ‘proof of life’ certificate and have it verified by an authorised certifier.
On or about 30 May 2023, Mr Curling’s son, [Mr A], submitted a proof of life certificate signed by Mr Curling to Centrelink. [Mr A] had completed the declaration in the form required to be completed by an authorised certifier.
Between May 2023 and November 2023, Centrelink suspended and restarted Mr Curling’s age pension on a number of occasions. On 10 January 2024, Centrelink again suspended Mr Curling’s age pension as he had not provided an appropriate proof of life certificate.
On 9 February 2024, Centrelink wrote to Mr Curling advising that in order to restore his payments he needed to return a proof of life certificate completed by an authorised certifier.
On 2 May 2024, Centrelink cancelled Mr Curling’s age pension with effect from 10 January 2024 as he had not provided a valid proof of life certificate.
Mr Curling sought internal review of the decision to cancel his age pension and on 23 May 2024 a Centrelink authorised review officer (ARO) affirmed the decision.
Mr Curling then applied to the Administrative Appeals Tribunal (AAT) seeking independent review of Centrelink’s decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 22 October 2024. Mr Curling did not appear at the hearing but was represented by [Mr A], who participated in the hearing by telephone.
The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1-132, and written submissions and documents provided by Mr Curling and numbered as pages A1-A6. The Tribunal sought further relevant documents from Centrelink, which were produced and numbered as pages C1-C63.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security (Administration) Act 1999 (the Act).
The issues which arise in this case are:
· whether Mr Curling failed to comply with a valid request for information issued by Centrelink; and if so,
· whether Mr Curling’s age pension should have been cancelled from 10 January 2024.

CONSIDERATION

The Act provides a number of mechanisms whereby Centrelink can require a person who is in receipt of a social security payment to provide information to Centrelink.
Under subsection 63(2AA) of the Act, if a person has reached 80 years of age, is in receipt of age pension, and has been continuously absent from Australia for 2 years, Centrelink may notify the person that they are required to give a proof of life certificate.
Section 63A of the Act provides the requirements for a valid proof of life certificate. To be valid, the certificate must:
·      Be in a form approved by the Secretary and contain such information as is required by the approved form;
·      Include a statement to the effect that the person is alive;
·      Be signed and dated by both the person and an authorised certifier within a 7 day period;
·      Include a statement from an authorised certifier confirming that the authorised certifier:
oHas sighted the person while in the physical presence of the person;
oHas verified the identify of the person using one of the methods set out in the approved form; and
oIs satisfied that the person is alive.
An ‘authorised certifier’ is a person included in a class of persons specified in a determination made by the Secretary in a legislative instrument. The relevant instrument is the Social Security (Administration) (Authorised Certifier) Determination 2019 (the Determination).
The Determination sets out a list of persons recognised under Australian law as authorised certifiers. This includes legal practitioners, judges and certain court officials, notaries, justices of the peace, police officers, consular officials and medical practitioners.
[Mr A] told the Tribunal that he had previously completed proof of life certificates purporting to be an authorised certifier, which were accepted by Centrelink on multiple occasions to restore Mr Curling’s age pension. The ARO noted that the same proof of life certificate completed by [Mr A] as an authorised certifier on 30 May 2023 had been provided to Centrelink on 30 May 2023, 31 May 2023, 2 August 2023, 1 October 2023, 17 November 2023 and 17 January 2024.
[Mr A] does not meet any of the qualifications set out under the Determination to be an authorised certifier. Further, as noted by the ARO, there is no evidence that [Mr A] was in the physical presence of Mr Curling within 7 days of Mr Curling signing the certificate. I find the certificate dated 30 May 2023 does not satisfy the requirements set out in section 63A of the Act and is not a valid proof of life certificate.
It is unclear to this Tribunal why Centrelink would have restored Mr Curling’s pension when the certificates provided by [Mr A] failed to comply with the requirements of section 63A of the Act and the Determination. However, the prior restorations are not decisions which are before this Tribunal, and this Tribunal only has jurisdiction to consider whether the decision to cancel [Mr A]’s age pension from 10 January 2024 was correct.
Where a person is residing outside of Australia, subsection 5(3) of the Determination specifies that an authorised certifier is:
(a)a person who, under the law of or applying at that place, is currently authorised or entitled to practise in that place as:
(i)a legal practitioner (however described); or
(ii)a notary public (however described); or
(iii)a medical practitioner (however described); or
(iv)a police officer (however described);
(b)a person who is the holder of any of the following offices (however described) of a court of, or having jurisdiction at, that place:
(i)a judge, magistrate or justice;
(ii)a registrar or deputy registrar;
(c)an official (however described) of a municipal authority or pension agency.
Mr Curling submitted a further proof of life certificate dated 11 July 2024. This certificate notes “[Ms B]” as the authorised certifier, although the certificate is not signed and the declaration not completed.
[Mr A] submitted that [Ms B] is a medical practitioner and that she has signed various test results, which are attached to the proof of life certificate. [Mr A] said that those tests are blood and urine tests, which could only be completed while Mr Curling was physically present with [Ms B].
The Tribunal was not provided with any official translation of the documents attached to the proof of life certificate. I cannot be satisfied either that [Ms B] is a medical practitioner authorised to practice in [Country], that the documents attached are test results for Mr Curling, that [Ms B] has signed those results or that Mr Curling was present when [Ms B] signed those documents.
I find that the document dated 11 July 2024 and the required declaration has not been completed by an authorised certifier and is not a valid proof of life certificate.
[Mr A] also noted in his written and oral submissions that Centrelink’s letter of 9 February 2024 had been issued to Mr Curling’s Australian postal address, rather than via myGov, even though Centrelink was aware at that time that Mr Curling was overseas. [Mr A] said that had this letter been received, they would have immediately provided a further proof of life certificate to Centrelink.
[Mr A] acknowledged that Centrelink’s initial request for a proof of life certificate had been duly received by Mr Curling via his myGov account. Both that initial request and follow up letters appear to have been properly addressed to the last known address recorded by Centrelink for Mr Curling. In the absence of positive proof of non-delivery to that address, Mr Curling is deemed to have received any correspondence sent by post: section 29 of the Acts Interpretation Act 1901. An electronic communication, such as a letter issued via a person’s myGov account, is deemed to be received at a time when the communication becomes capable of being retrieved by the addressee at an electronic address designated by them: section 14A of the Electronic Transactions Act 1999. I am satisfied that Mr Curling received proper notice of the requirement to provide a valid proof of life certificate.
If a person fails to comply with a written request issued pursuant to section 63 of the Administration Act, their payment is not payable if the Secretary is satisfied that it is reasonable for the relevant provision to apply to the person: section 64 of the Administration Act. If a social security payment is not payable to a person, the Secretary may determine that the person’s payment is to be suspended or cancelled: section 80 of the Administration Act.
I am satisfied that it was reasonable, in circumstances where Mr Curling has not complied with the section 63 notice issued by Centrelink on 18 January 2023 by providing a valid, properly completed proof of life certificate, for Centrelink to determine that Mr Curling’s age pension was no longer payable. Accordingly, I find that the decision to cancel Mr Curling’s age pension from 10 January 2024 was correct.

DECISION

The Tribunal affirms the decision under review.

Date(s) of hearing:	Tuesday, 22 October 2024
Representative for the Applicant:	[Mr A]