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

Davidson and Secretary, Department of Social Services (Social services second review) [2020] AATA 995 (29 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1681
Re:Wendy Davidson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:29 April 2020
Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant qualified for the full rate of age pension from 20 September 2017.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – age pension – rate of age pension – where Applicant sought review of rate of age pension – adjustment decision – earliest date Applicant was entitled to be paid highest rate of age pension – decision under review set aside and remitted for reconsideration
LEGISLATION
Social Security (Administration) Act 1999 (Cth) ss 109, 237
REASONS FOR DECISION
Mr S Evans, Member
29 April 2020

Wendy Davidson (“the Applicant”) seeks review of a decision made by the Social Services and Child Support Division (“AAT1”) of this Tribunal. The AAT1 affirmed a decision of an Authorised Review Officer (“ARO”) made on 20 November 2018 on behalf of the Secretary of the Department of Social Services (“the Respondent” or “Centrelink”) which determined that the Applicant was not entitled to a higher rate of age pension arrears prior to 26 September 2017
The hearing was held on 12 February 2020. Ms Davidson did not appear as she was receiving medical treatment. She was represented by her husband Mr Pravin Gupta. The Tribunal has before it documentation relating to Ms Davidson’s appeal including section 37 Tribunal documents. The entirety of the evidence has been taken into consideration.
For the reasons which follow, the Tribunal has decided to set aside and remit the decision back to the Respondent.
BACKGROUND
The Applicant was granted age pension in 2012. Her husband is the sole shareholder of a company called XL2WIN Consultancy Pty Ltd (“the Company”). At material times, information about the financial circumstances of the Company was provided to Centrelink and used to determine the Applicant’s rate of age pension. On 1 September 2016 the Applicant informed Centrelink that her spouse earned $2,000 annually from the Company.
On 14 November 2016 the Respondent received information about the Company which determined it had a taxable loss in the 2015/16 financial year and that the Applicant’s spouse was paid a commission of $2,000 and that he would receive this income in the 2016/17 financial year.
On 16 December 2017, the Applicant sought arrears paid from 1 July 2016, the time at which wages drawn down from the Company ceased. This request was refused by the Authorised Review Officer (“ARO”), the Applicant was notified of this by way of contact with Centrelink on 12 March 2018 and by letter on 19 September 2018. The Applicant sought review of this decision.
On 20 November 2018, the ARO affirmed the decision not to pay the Applicant arrears for the period of 1 July 2016 to 31 December 2017.
The Applicant’s contention
The Applicant takes issue with the $2,000 income from the Company being attributed to the financial year 2016/17 by the Respondent. The Applicant’s representative submits that the fees were incurred in 2015/16 and were to be paid in 2016/17. In reference to the $2,000 the Applicant’s submission states:
this was not earnings for the financial year 2016-2107… my partner had not been working and had no income after 2015-2016 financial year.
The Applicant contends that she was paid less than the full rate of age pension for the period 1 July 2016 to 20 September 2017 (“the relevant period”) because of the way this income was accounted for by Centrelink. She submits that she was entitled to the full rate of pension during the relevant period and seeks arrears.
ISSUES
The issues to be determined by the Tribunal are:
(a)When did the Applicant first seek review of her age pension entitlement; and
(b)The earliest date at which the Applicant was entitled to be paid age pension at the maximum rate.
THE RELEVANT LAW
Section 109 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides:
(1) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
(3) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)the person is not given notice of the original decision; and
(c)the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
…
(7) For the purposes of this section, if:
(a)the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and
(b)the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;
then
(c)each person whose rate of social security payment is, or was, affected by the determination is taken to have been given notice of the determination and of the increased rate; and
(d)the notice is taken to have been given on the day on which the amount was so indexed or adjusted.
(emphasis in original)
Section 237 of the Administration Act provides:
(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.
(4)This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
EVIDENCE
The Respondent submits that the Applicant was eligible for the maximum rate of age pension from 1 July 2016. This issue is not in contention.
As mentioned, the Applicant’s representative contacted the Department on 12 March 2018 to request a review of the income maintained by the Company and requested back payment be made. On 10 April 2018 a reassessment of the Applicant’s age pension was made based on the removal of her partner’s income from the Company.
An Authorised Review Officer (“ARO”) found that the Applicant was entitled to arrears from 5 October 2017 on the basis that the she had not been notified of a rate change on that date, however as the Applicant was already in receipt of the full pension at that time the ARO found that the Applicant was not entitled to receive any material back payment.
Both the ARO and AAT1 determined the Applicant first sought review of her rate of age pension on 12 March 2018, when Mr Gupta contacted the Respondent on the Applicant’s behalf and requested a review of the income being maintained from the Company. However, the Respondent now submits that the Tribunal can be satisfied that the Applicant sought review of the decision on 16 December 2017.
A Centrelink electronic screen document dated 24 September 2018 details a call made by Mr Gupta to Centrelink. It states that the reason for contact was the Applicant was seeking arrears payment and identifies that online feedback was submitted on 16 December 2017 regarding this request. This is a generous interpretation of the file note in the document by the Respondent but one which the Tribunal accepts and is of benefit to the Applicant.
The Applicant’s pension was increased on 20 September 2017 following a standard consumer price index adjustment (“the Adjustment Decision”). The Secretary contends that the Applicant was notified of this for the purposes of section 109 of the Administration Act on 20 September 2017.
CONSIDERATION
The Tribunal is satisfied that the Applicant first sought review of her rate of age pension on 16 December 2017.
As the application for review was lodged on 16 December 2017 it was within 13 weeks of the Adjustment Decision dated 20 September 2017 and therefore meets the requirements of section 109(1) of the Administration Act.
As the original decision is dated 20 September 2017, the Secretary contends that this is the earliest date on which the Applicant was entitled to receive the full rate of age pension. The Applicant was in receipt of the full rate of pension from 26 September 2017 and the Respondent contends that the Applicant is entitled to receive 6 days of arrears.
As mentioned, the Applicant argues that she was paid less than the full rate of pension during the relevant period which begins on 1 July 2016 and has asked that any arrears owing be backdated to this time.
The provisions contained in section 109 of the Administration Act prevent backdating of any entitlements to a date earlier than 20 September 2017. Subsection 109(1) provides that the effective date of a favourable determination on a review application made within 13 weeks after notice is given of the original decision is the date of the original decision. Subsection 109(2) further provides that if a decision is made in relation to a person’s social security payment and notice is given to the person of the decision, and the person applies for review of the decision more than 13 weeks after the notice is given, a favourable determination made as a result of the application takes effect on the day the application was made.
In this matter the applicant is seeking to have the full rate of pension backdated to 1 July 2016 on the basis of an application for review which has been generously determined to have been made on 16 December 2017. It is not open to the Tribunal to ignore the operation of section 109 of the Administration Act.
It is the Tribunal’s determination that the 16 December 2017 enquiry may be considered an application for review of the Applicant’s rate of age pension, and as such the Adjustment Decision of 20 September 2017 is the original decision under review.
DECISION
The decision of AAT1 is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant qualified for the full rate of age pension from 20 September 2017.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 29 April 2020

Date(s) of hearing: 12 February 2020

Advocate for the Applicant: Mr P Gupta

Solicitors for the Respondent: Services Australia

[2020] AATA 995

29 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Date(s) of hearing:	12 February 2020
Advocate for the Applicant:	Mr P Gupta
Solicitors for the Respondent:	Services Australia