Doherty and Secretary, Department of Employment and Workplace Relations

[2006] AATA 604

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/116

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN DOHERTY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date7 July 2006  

PlaceBrisbane

Decision The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with these reasons.

.........[Sgd].......

P E Hack

Deputy President

CATCHWORDS

SOCIAL SECURITY – invalid pension – inmate of benevolent home – calculation of “pensioner contribution” – amounts deducted from pension without statutory authority – no evidence of notices sent regarding invalid pension payment during stay at the home – decision under review set aside and the matter remitted for reconsideration

Social Security (Administration) Act 1999 s 78, s 109(2)(3), s 152(4) s 172

Administrative Appeal Tribunal Act 1975 s 34J

Social Security Act 1947 s 42

Social Services Amendment Act 1979 s 14

National Health Act 1953 s 47(2)(b)(iii)

REASONS FOR DECISION

7 July 2006 Deputy President P E Hack SC    

1.At various time periods between December 1984 and January 1989 Mr John Doherty was a patient in the Royal Derwent Benevolent Home (the Home). During the whole of that period Mr Doherty was in receipt of an invalid pension paid by the Department of Social Security. Whilst Mr Doherty was a patient at the Home the Department paid a percentage of his invalid pension directly to the Home. To this point it has been assumed that that percentage was 85%.

2.Mr Doherty complains of the actions of the Department – he says that he neither consented to, nor was he aware of, the payments being made. The complaint first appears to have been made in a letter sent by Mr Doherty to the Department of Social Security and received by that Department on the 23 February 1993. In that letter, Mr Doherty made reference to money that may be owing from his stay at the Home and sought assistance “to clear this up”.

3.The process of complaint was formalised by the receipt on 30 April 1993 of an “appeal against the decision”. On 4 May 1993 an Authorised Review Officer reviewed what was described as a decision to pay 85% of Mr Doherty’s pension to the Home during the periods in which he was an inpatient. That Officer concluded that the decision was correct.

4.In circumstances that are not clear to me there appears to have been a further review by a different Authorised Review Officer who, by letter dated 24 May 1993, affirmed the decision to pay 85% of Mr Doherty’s pension direct to the Home.

5.So far as the documents before the Tribunal reveal there was correspondence between Mr Doherty and Centrelink (and other agencies) in 1999 and 2000. Then in September 2001 Mr Doherty lodged an appeal with the Social Security Appeals Tribunal. That appeal was dismissed pursuant to s 172 of the Social Security (Administration) Act 1999 on 1 October 2001 when that Tribunal’s delegate was satisfied that Mr Doherty did not intend to proceed with his application.

6.Eventually in January 2006 Mr Doherty sought another review by the Social Security Appeals Tribunal. On 8 February 2006 that Tribunal affirmed the earlier decision of 24 May 1993.

7.Mr Doherty now seeks a review in this Tribunal. I should say immediately that the only decision that is capable of being reviewed is the decision to pay 85% of Mr Doherty’s invalid pension to the Home. Whilst I note that Mr Doherty’s complaints range wider, this Tribunal does not have any jurisdiction to investigate Mr Doherty’s broader complaints about the Home or concerning his treatment there. And it does not have jurisdiction to investigate what may have happened to Mr Doherty’s funds whilst he was a patient in the Home.

8.The parties have given written consent[1] to the review being determined without a hearing. I am satisfied, in terms of s 34J of the Administrative Appeals Tribunal Act 1975, that the issues can be adequately determined in that way.

[1] The signed consents refer to section 34B of the Administrative Appeals Tribunal Act rather than section 34J of that Act. I do not consider that that error detracts from the validity of the consent.

9.The legislation in force at the time in issue in these proceedings was the Social Security Act 1947. The respondent relied upon what ultimately became s 42 of that Act. Provision for the payment of an amount of pension directly to a benevolent home seems to have been first made by s 14 of the Social Services Amendment Act 1979. That section substituted a new s 50 in these terms,

50(1) In this section-

‘age pensioner’ means a person who is in receipt of a pension that is, or includes, an age pension;

‘invalid pensioner’ means a person who is in receipt of a pension that is, or includes, an invalid pension;

‘pensioner contribution’ means an amount per annum equal to the product of 364 and an amount equal to the amount in force, from time to time, for the purposes of sub-paragraph (iii) of paragraph (b) of sub-section (2) of section 47 of the National Health Act 1953, or, if that product is not a multiple of $2.60, the next lower amount that is such a multiple;

‘wife pensioner’ means a person who is in receipt of a pension that is, or includes, a wife’s pension;

‘wife’s portion’, in relation to a male pensioner who is a married person and the maximum rate of whose pension is increased by reason of the operation of sub-section (1B) or (1F) of section 28, means the amount per annum by which the amount per annum of his pension is greater than the amount that, but for the operation of those sub-sections, would be the amount per annum of his pension.

(2) If an inmate of a benevolent home becomes an age pensioner, an invalid pensioner or a wife pensioner, or if an age pensioner, an invalid pensioner or a wife pensioner becomes an inmate of a benevolent home, his pension shall, so long as he remains an inmate of a benevolent home, be dealt with as follows:

(a) in the case of a male pensioner referred to in the definition of ‘wife’s portion’ in sub-section (1)- there shall be paid to his wife so much of his pension as does not exceed the wife’s portion in relation to him;

(b) there shall be paid to the person controlling the benevolent home for the maintenance of the pensioner in the benevolent home so much of his pension, or so much of the remainder of his pension after deducting any wife’s portion, as does not exceed the pensioner contribution in relation to him;

(c) the balance (if any) of his pension shall be paid to the pensioner.

10.There were subsequent amendments to s 50, including its re-numbering to     s 42, during the period that Mr Doherty was an inmate of the Home. But despite those amendments the substance of the obligation did not change in relation to someone in the position of Mr Doherty. During all of the period, and whilst he was an inmate of the Home, the Department was obliged by the statute to pay the pensioner contribution to the person controlling the Home and the balance to Mr Doherty.

11.The amount in force for the purposes of sub-paragraph 47(2)(b)(iii) of the National Health Act 1953 was $6.70 throughout the period in issue in the present case. 

12.The Secretary, in written submissions lodged in the Tribunal, submitted that the Department was required to pay 85% of Mr Doherty’s pension directly to the Home. A request was made by the Tribunal on 16 June 2006 (and a copy sent to Mr Doherty) for further submissions on this aspect of the matter. The Secretary subsequently lodged supplementary submissions in which it was conceded that it was not correct to say, as had been said to that point, that the Department was required to pay 85% of the pension to the Home. Instead it was contended that Mr Doherty’s entitlement was correctly calculated and paid having regard to s 50(2) (subsequently s 42(2)) of the Social Security Act 1947 and s 47 of the National Health Act.

13.But those submissions do not reveal, nor was I able to ascertain, whether the pensioner contribution was correctly calculated. By way of one example, the documents reveal that in January 1985 Mr Doherty was entitled to a pension of $213.80 per fortnight. He was, at that time, an inmate of the Home. The document for the pension paid on 24 January 1985 shows an amount of $178.50 as “P/C”, which I take to be an abbreviation for pensioner contribution, with the balance of $35.30 paid to Mr Doherty.

14.Thus I am unable to reconcile the amount of pensioner contribution with the statutory formula and the Secretary is unable to demonstrate to me how the amount is to be reconciled. The result is that I am left unsatisfied that the amount deducted from Mr Doherty’s pension was deducted in accordance with statutory authority.

15.Ordinarily that conclusion would warrant a decision setting aside the decision under review and remitting the matter to the Secretary to be re-considered. But the Secretary relies upon the provisions in the Social Security (Administration) Act 1999 that have the purposes of ensuring that complaints such as that made by Mr Doherty are brought promptly and of limiting the arrears payable where an application for review is made late. The Secretary submits that if I was not satisfied that Mr Doherty’s pensioner contribution was correctly calculated then arrears would not be payable to him by virtue of the arrears limitation provisions contained in sections 109 and 152(4) of the Social Security Act (Administration) Act.

16.The starting point seems to me to be s 78 of the Social Security (Administration) Act. It provides,

If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less that the rate provided for by the social security law, the Secretary must:

(a)determine that the rate is to be increased to the rate provided for by the social security law; and

(b)     specify the last-mentioned rate in the determination. 

17.Here, it seems to me, my conclusion that I am not satisfied that the amounts deducted from Mr Doherty’s pension were deducted with statutory authority must be regarded as being the equivalent of a determination by the Secretary under s 78. That being so the decision amounts to a favourable determination as that expression is used in Subdivision B of Division 9 of Part 3 of the Social Security (Administration) Act. Sub-sections 109(2) and (3),contained within that Subdivision, provide as follows,

(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.

18.That raises for consideration the issue whether Mr Doherty was given notice of the original decisions (I assume that there a number of them) where it was determined that he ought to be paid an amount less than his full pension.  There was no evidence presented in the written materials provided to the Tribunal that Mr Doherty was sent notices about his invalid pension payments while he was an inmate of the Home. That question has not been considered at any level of the decision-making in this case nor addressed, except in passing, in the Secretary’s submissions. It would be preferable, in my view, to permit the Secretary to give further consideration to this issue in order to determine whether notice was, in fact, given.

19.Accordingly I propose to set aside the decision under review and remit the matter to the Secretary for reconsideration. I would not propose to limit the Secretary’s consideration to Subdivision B of Division 9 of Part 3 of the Social Security (Administration) Act but the operation of that Subdivision, at least, ought to be considered.

I certify that the   preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Decision  7 July 2006

Hearing heard on the papers