DONALD NISSEN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 373
•21 June 2012
[2012] AATA 373
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0535
Re
DONALD NISSEN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 21 June 2012 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Incorrect annual income recorded – Tax returns filed but lost – Compensation for Detriment caused by Defective Administration Scheme – Potential defective administration - Appeal filed outside of time – No potential to extend time – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 117, 1064
Social Security (Administration) Act 1999 (Cth) s 109
SECONDARY MATERIALS
Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme)
REASONS FOR DECISION
Mr P Wulf, Member
21 June 2012
Donald Nissen ("the applicant")[1] seeks the review of a decision made by Centrelink on 18 September 2009[2] to reduce his disability support pension (“DSP”) under the Social Security Act 1991 (Cth) ("the Act") and Social Security (Administration) Act 1999 (Cth) ("the Administration Act") as a result of his wife, Mrs Christene Nissen’s income.
[1] Exhibit 1, T-Document 1/1-14.
[2] Exhibit 1, T-Document 17/73.
The applicant sought review on 14 October 2011.[3] On 17 October 2011, the original Centrelink officer reconsidered and affirmed the decision.[4] The decision was subsequently affirmed by an Authorised Review Officer (“ARO”) on 15 November 2011.[5] The applicant then appealed to the Social Security Appeals Tribunal ("SSAT"), who affirmed the decision on 16 January 2012.[6]
[3] Exhibit 1, T-Document 34/147.
[4] Exhibit 1, T-Document 31/113.
[5] Exhibit 1, T-Document 32/114-120.
[6] Exhibit A, T-Document 2/15-18.
The applicant has applied to this Tribunal for review of the decision of the SSAT.
THE ISSUES AND THE TRIBUNAL'S DETERMINATION
The issues for the Tribunal's determination are whether:
(a)Centrelink received the relevant tax returns and therefore should have properly assessed the applicant’s DSP payments based on his and his wife’s income from the tax returns for 2008-2009; and
(b)The applicant sought review within 13 weeks of the decision being made on 18 September 2009 to reduce his DSP payments.
For the reasons which follow, the Tribunal believes that there is more than sufficient evidence to potentially give rise to a Scheme for Compensation for Detriment caused by Defective Administration (“the CDDA Scheme”) payment; however, based on the failure to appeal within the relevant 13 week period starting 18 September 2009, the decision is affirmed.
THE RELEVANT LEGISLATION
The relevant legislation is the Act and the Administration Act. Section 117 of the Act states how a person’s DSP is worked out. Section 1064 provides a method statement for working out the effect of a DSP recipient’s payments based on their partner’s income.[7]
[7] See especially ss 1064(4), 1064-A2 and 1064-E2 of the Act.
In this matter, s 109 of the Administration Act is relevant in that it sets out the specific appeal period should a DSP recipient believe that the determination is inaccurate. Section 109 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
(b) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(c) 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.
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit 1: the "T Documents" (T1-35: pp 1-167) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)Exhibit 2: the respondent's Statement of Facts and Contentions dated 26 April 2012;
(c)Exhibit 3: the applicant’s descriptive list on interactions with Centrelink; and
(d)the oral evidence of the applicant.
At the hearing, the Tribunal requested that the parties provide additional material. The following additional documents were admitted as evidence:
(a)Exhibit 4: applicant and his wife’s tax return and notice of assessment for 2008‑09 along with emails from their accountant;
(b)Exhibit 5: applicant’s diary notes between 27 June 2009 and 15 July 2009;
(c)Exhibit 6: respondent’s bundle of documents dated 23 May 2012;
(d)Exhibit 7: respondent’s additional submissions dated 1 June 2012; and
(e)Exhibit 8: applicant’s additional submissions dated 5 May [sic] (June) 2012.
ANALYSIS
Filing of Tax Returns in September 2009
Centrelink have based their assessment of the applicant’s DSP payments on financial information contained within, but not limited to, an “Application for Payment Form for Newstart Allowance” for the applicant’s wife dated 9 September 2009.[8] The applicant’s wife indicates that during a six week period from 30 July 2009 to 9 September 2009, she worked for 90 hours and her gross earnings for that period were $1,275.00.
[8] Exhibit A, T-Document 15/65-68.
It would seem that irrespective of any other material that may have subsequently been provided,[9] Centrelink have assumed that the applicant’s wife would have an income of $11,932.00 for the whole year.[10] This would appear to have been a flawed assumption as it was only based on six weeks of gross earnings with no consideration of any other returns during that period. This therefore significantly affected the applicant’s DSP.
[9] E.g. Tax Returns.
[10] Exhibit A, T-Document 21/81-82.
It is important to note that it would appear[11] that Centrelink did not make any formal request for business/self-employment income from either party until it sent a request to Mrs Nissen on 15 August 2011, nearly two years after the original assessment was done of her income.[12] This would not appear to be regular as suggested in the letter. Critically, it would appear that on 18 August 2011, the applicant, on behalf of Mrs Nissen, brought the relevant tax returns for 2008-09 and 2009-10 into the Centrelink office.[13] It would appear that based on this information and of that contained in the applicant’s completion of Centrelink’s request to transfer the applicant to the Age Pension,[14] the applicant’s DSP payment was increased.
[11] Based on the evidence before the Tribunal in Exhibit 1.
[12] Exhibit A, T-Document 27/96-97.
[13] Exhibit 6.
[14] Exhibit A, T-Document 28/98-108.
The applicant has stated that he provided his and his wife’s 2008-09 tax returns to Centrelink in September 2009. Following the hearing, the applicant provided copies of both his and his wife’s tax returns for 2008-09 along with a copy of an email from his accountant providing those tax returns to him in electronic form on 18 September 2009.[15]
[15] Exhibit 4.
While not a matter that can be determined in this hearing, the Commonwealth has the CDDA Scheme which relates to defective administration by a government department that, as a result, has a detrimental financial impact on an individual, company or other organisation. Defective administration is defined as:[16]
(a) a specific and unreasonable lapse in complying with existing administrative procedures; or
(b) an unreasonable failure to institute appropriate administrative procedures; or
(c) an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
(d) giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
[16] See Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme) administered by the Department of Finance and Deregulation.
Detriment means “quantifiable financial loss that an applicant has suffered”.[17] There are three types of detriment including:[18]
(a) detriment relating to a personal injury including mental injury (personal injury loss);
(b) economic detriment that is not related to a personal injury (pure economic loss); and
(c) detriment relating to damage to property.
[17] See note 16.
[18] See note 16.
The Tribunal has no jurisdiction to determine a CDDA Scheme payment claim. This is something that can only be made “by the relevant portfolio Minister or authorised officer if a Government officer or agency has directly caused an applicant to experience detriment as a result of defective administration”.[19] Notwithstanding, the Tribunal believes that based on the evidence presented to it during and subsequent to the hearing including the respondent’s additional submissions that note “it is possible that the Applicant provided Centrelink with copies of his and his wife’s tax information in late September 2009”, the applicant did provide these documents to Centrelink at that time.
[19] See note 16.
The Tribunal therefore considers that the defective administration was not properly handling those tax returns in late September 2009, immediately after the amendment to the applicant’s DSP payments;[20] if handled properly Centrelink would have properly adjusted the applicant’s DSP payments to their correct amount. As this has not occurred, the applicant has had a quantifiable financial loss through the reduction of this DSP payment, therefore suffering economic loss.
[20] Exhibit 1, T-Document 17/73.
Again, the Tribunal no jurisdiction to determine a CDDA Scheme payment, but the Tribunal’s findings would suggest that the applicant could have a valid claim under the Scheme for defective administration as the documents were not properly processed at the time.
13 Week Appeal Period
The original decision to amend the applicant’s DSP was made on 18 September 2009.[21] It is noted that the applicant did not appeal that decision until 14 October 2011.
[21] Exhibit 1, T-Document 17/73.
Under s 109(1) of the of the Administration Act, once the decision is made, and notice is given to the person informing them of the decision, the person must, within 13 weeks after the notice is given, request a review of the decision if they are to be able to have any favourable determination backdated to the date of the original decision.
The respondent submitted that, as the applicant did not apply for a review of the decision until 17 October 2011, the earliest that any favourable determination could be backdated to was 11 August 2011, as this was the date that the last rate of DSP payment notice issued to the applicant, on 18 August 2011, took effect. That notice was within 13 weeks of the date of his appeal of 17 October 2011.
The Tribunal has investigated the additional material[22] and there is nothing in those documents to suggest that the applicant was making commentary as to any review of the decision of 18 September 2009 and therefore it is clear that the applicant did not appeal within the 13 weeks after the original decision was made. There is also nothing in the Act or Administration Act that would allow the Tribunal to extend the time limits beyond that period. Notwithstanding, the applicant could only seek to have his DSP increased from 11 August 2011.
[22] Exhibit 6.
Based on this fact, the appeal must be unsuccessful as it is made outside of time.
DECISION
Noting the comments made throughout this decision, the Tribunal affirms the decision under review.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member. ................[Sgd]...........................................
Associate
Dated 21 June 2012
Date(s) of hearing 22 May 2012 Applicant In person Advocate for the Respondent Donna Smith
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