Donna Moss and Secretary, Department of Social Services

[2014] AATA 901

[2014] AATA  901

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3627
Re	Donna Moss
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	5 December 2014
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security - disability support pension - cancellation for failure to report income - no income earned - no application for review of decision - decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999 (Administration Act) Pt 3 Division 6, ss 23(1), 41, 42, 68, 72, 81, 108, 109(2), 152(4), 237
Acts Interpretation Act ss 28A and 29

CASES

Yeasmin and SDEEWR (2009

Fayad and Secretary, Department of Employment and Workplace Relations (2006)
Threadgold and SDSS (2014) AATA 654

Kalaba and SDFHCSIA (2013) AATA 69

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. A decision was made to cancel the disability support pension (DSP) being paid to the applicant, Donna Moss with effect from 19 June 2012 on the basis that she failed to report her income. Centrelink’s decision was affirmed by the Social Security Appeals Tribunal and Ms Moss now seeks a review of that decision.

2. The issues for the Tribunal to determine are:

   (1)        whether the applicant’s DSP was correctly cancelled in June 2012;

   (2) if not, can arrears of DSP be paid for the period 19 June 2012 to 23 December 2013?

   (3) what is the first day on which the applicant can be paid DSP in relation to her claim lodged on or about 24 December 2013?

3. Ms Moss appeared on her own behalf and gave oral evidence before the Tribunal. Attached to her application for review were copies of statements of her bank account into which pension payments and income from her employment was deposited. Brian Sparkes appeared on behalf of the Secretary and tendered the T documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

4. Ms Moss contended that she was eligible for DSP payments following the cancellation on 19 June 2012 because she was not then in receipt of employment income. Mr Sparkes submitted that Ms Moss was aware of the requirement to report her income. Ms Moss was advised of Centrelink’s decision by letter dated 3 September 2012 posted to her last known address and she did not seek a review within the requisite timeframe of 13 weeks.

   BACKGROUND FACTS

5. Ms Moss was granted DSP from 19 September 2003. She worked on a casual basis at Uniting Aged Care Tasmania during the first half of 2012 and reported her income to Centrelink as required until around mid-2012.  Ms Moss suffers from a schizoaffective disorder. She became unwell around mid-2012 and as a result of the treatment and hospitalisation ceased her employment with Uniting Aged Care. Ms Moss maintains that she advised Centrelink that she was no longer working but was told that she could “live off her savings”.

6. Her bank records confirm that the last salary deposit from Uniting Aged Care was made on 27 June 2012. It was Ms Moss’s evidence that she was hospitalised on two or three occasions each for two weeks over a six-month period. Following a hospital visit by Centrelink staff, Ms Moss made a claim for newstart allowance in October 2013 which was granted from 26 September 2013. She subsequently claimed DSP which was granted from 24 December 2013. Ms Moss did not receive any DSP between cancellation on 19 June 2012 and restoration on 23 December 2013.

   DSP CANCELLATION-19 JUNE 2012

7. Part 3, Division 6 of the Social Security (Administration) Act 1999 (Administration Act) sets out the requirements for a pension recipient to provide information regarding income and any change of circumstances.

8. Section 68 of the Administration Act provides the Secretary with the power to require a person who is receiving a social security payment to inform the Department if a specified event or change of circumstances occurs that might affect the payment of the social security payment.  DSP is a social security payment as defined in section 23 (1) of the Act.

9. Included in the T documents was a notice dated 21 May 2012 advising the applicant of this requirement (T6).  In accordance with section 72 of the Administration Act, the notice was given in writing and posted to the applicant’s last known address.

10. The notice of Centrelink’s decision to cancel Ms Moss’s DSP with effect from 19 June 2012 was given by prepaid post to her last known address in accordance with the provisions of section 237 of the Administration Act.  Ms Moss does not dispute having received notice of Centrelink’s decision and maintains that is why she later contacted Centrelink regarding non-payment of her DSP. The Tribunal is satisfied that service of Centrelink’s decision was affected in accordance with the provisions of the Administration Act and the provisions of the Acts Interpretation Act namely sections 28A and 29.

11. Ms Moss’s DSP year was cancelled in accordance with the provisions of section 81 of the Administration Act which provides for cancellation or suspension of payments for non-compliance.

12. There is no record of Ms Moss contacting Centrelink after receipt of the decision to cancel her DSP. It was Ms Moss’s evidence that she was unwell around this time and could have been in hospital after having been escorted there by the police.

    ARREARS OF DSP PRIOR TO THE CLAIM IN DECEMBER 2013

13. On or about 24 December 2013 Ms Moss claimed DSP and sought arrears from the date of cancellation.

14. Section 41 of the Administration Act provides that a social security payment becomes payable to a person on the person’s start day which is defined in section 42 as the day worked out in accordance with Schedule 2. This provides that DSP is paid from the day on which the claim was lodged, in this case 24 December 2013.

15. There is no evidence that Ms Moss asked for a review of the decision to cancel her DSP in June 2012 within the required 13 weeks. The effect of section 237 of the Administration Act is that Ms Moss is taken to have received the notice that DSP was cancelled no later than on or about 8 September 2012. In order to be paid arrears to the date DSP was cancelled, a request for a review of the decision need to have been made no later than on or about 7 December 2012. There is no evidence that a request was made prior to 24 December 2013, the date when Ms Moss reclaimed DSP.

16. Ms Moss’s application on 24 December 2013 was a favourable determination in accordance with the provisions of section 108 and its date of effect is the date of the decision (section 109). Section 109 (2) provides that where a person  applies for a review of the original decision more than 13 weeks after the date when the notice is given, the favourable determination takes effect on the day on which the application for review was made. In the absence of any evidence of contact by Ms Moss with Centrelink following notice of the decision to cancel DSP until her application on about 24 December 2013, the earliest date from which DSP can be paid is the date of her new claim, that is, on about 24 December 2013.

17. Although Ms Moss maintained that she had contacted Centrelink prior to this time regarding non-payment of her DSP, there is no evidence to support her claim. In a report on a Continuing Care Order for the Mental Health Tribunal dated 31 October 2013, Dr Imran stated that “Ms Moss lives with her mother, and has been financially dependent on her mother. Ms Moss has declined to access Centrelink financial assistance.”

18. Mr Sparkes referred me to a number of Tribunal decisions which have held that there is no discretion to backdate a grant unless the application for a re-consideration is lodged within 13 weeks of the notice being given. (See re Yeasmin and SDEEWR (2009)… Fayed and Secretary Department of Employment and Workplace Relations (2006)…, Threadgold and SDSS (2014) AATA 654, Kalaba and SDFHCSIA (2013) AATA 69.

    EFFECTIVE DATE OF DECISION UNDER REVIEW

19. Section 152 (4) of the Administration Act provides that any decision of the SSAT cannot take effect until the day on which the application for review was made, in this case 22 May 2014. This means that even if the SSAT had found in favour of the applicant, arrears could not be paid prior to that date. In effect any favourable decision of this Tribunal means that arrears could not be paid prior to 22 May 2014 at which time Ms Moss was again in receipt of DSP. So even a favourable decision by this Tribunal would not result in the payment of any arrears of DSP to Ms Moss.

20. For the reasons set out above however, the Tribunal does not consider that there is any basis to set aside the decision of the SSAT. The decision under review is accordingly affirmed.

21. The Tribunal has read and considered and fully concurs with the recommendation for an Act of Grace Payment included in the decision of the SSAT dated 23 June 2014.

I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated

Date(s) of hearing	17 November 2014
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch