Du Rhone and Secretary, Department of Social Services (Social services second review)
[2018] AATA 223
•15 February 2018
Du Rhone and Secretary, Department of Social Services (Social services second review) [2018] AATA 223 (15 February 2018)
Division:GENERAL DIVISION
File Number(s): 2016/7013
Re:Philip Du Rhone
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:15 February 2018
Place:Sydney
The decision under review is set aside, and the matter is remitted to the Secretary for recalculation of the applicant’s entitlement to age pension with the direction that arrears are payable to the applicant from 7 March 2014 to 19 March 2014 and from 27 August 2014 to 17 September 2014.
..................[sgd]..................................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – age pension – change to rate of age pension – whether adequate notice given – notice requirements – whether applicant entitled to arrears for underpayment – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) ss 78, 108 and 109
CASES
Austin v Secretary, Department of Family & Community Services (1999) 92 FCR 138
Re Peura and Secretary, Department of Family & Community Services [2003] AATA 1123
Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447; (2000) 104 FCR 272
Secretary, Department of Families, Community Services & Indigenous Affairs v Walshe [2007] AATA 1861
REASONS FOR DECISION
Senior Member A Poljak
15 February 2018
Mr Du Rhone, the applicant, has been in receipt of the age pension since 7 March 2012.
In these proceedings the applicant seeks review of a decision made by the Administrative Appeals Tribunal Social Security and Child Support Division (SSCSD) on 9 December 2016, which affirmed a decision made by an authorised review officer of the Department of Social Services (“the Department”) that arrears of age pension was only payable to the applicant from 18 September 2014 (“the decision”).
The issues to be determined in these proceedings are:
(a)whether the applicant was underpaid age pension from 4 November 2013; and if so,
(b)whether the applicant can be paid arrears of age pension arising from any underpayment.
BACKGROUND
On 18 September 2013, the applicant contacted the Department to notify them of the receipt of money from a court settlement. The applicant indicated that he hoped to use the funds to purchase a home as soon as practicable.
On 11 November 2013, the decision was made to pay the applicant age pension at a rate totalling $565.52 per fortnight based on the value of his annual income and total assets. The notice provided to the applicant stated that the age pension had been reduced because the value of his assets had increased. The respondent accepts that at that time the applicant had been paid under the assets test as a homeowner. This resulted in a fortnightly reduction of $344.25 from a base rate of $751.70, leaving a rate of $407.45 (in addition to relevant supplements).
On 27 August 2014, a Customer Service Advisor commenced a review into the applicant’s social security entitlements based on a data match with the Australian Taxation Office. In the course of investigating the applicant’s entitlements, additional evidence was obtained regarding the applicant’s income and assets. Relevantly, after reviewing the applicant’s real estate entitlements it was determined that he was not a homeowner for the purposes of the Social Security Act 1991 (Cth) (“the Act”). It appears that this was the case since his court settlement in September 2013.
On 17 September 2015, the applicant contacted the Department to request a review of the decision as he suspected that he had been underpaid. On the same date a Multi-Cal was completed which indicated that the applicant’s rate of age pension should have been calculated under the income test and paid at a higher rate from the period starting on 1 November 2013.
On 20 November 2015, it was determined that the applicant was entitled to arrears from 29 April 2015. This decision was subsequently amended by the SSCSD in its decision of 9 March 2016, and arrears were paid from 18 September 2014. This is the decision under review in these proceedings.
RELEVANT LEGISLATIVE PROVISIONS
Pursuant to section 78 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must determine that the rate is to be increased to the rate provided for by the social security law.
The respondent accepts, and I agree, that the decision that the applicant was entitled to a higher rate of age pension from approximately 1 November 2013 constitutes a determination under s 78 of the Administration Act.
A ‘favourable determination‘ is defined in section 108 of the Administration Act to mean a determination made under ss 78, 85, or 85A of the Administration Act.
Relevantly, subsections 109(2), (3) and (5) of the Administration Act 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.
…
(5) If:
a) a decision (the original decision) is made in relation to a person’s social security payment; and
b) the person is given a notice informing him or her of the original decision; and
c) the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
d) as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.
The meaning of ‘notice’
In Austin v Secretary, Department of Family & Community Services (1999) 92 FCR 138 Drummond J examined the requirements of "notice" in circumstances where Centrelink incorrectly recorded the rental income received by Mr Austin leading to a reduction in his newstart pension. Drummond J said that the requirements of “notice” are not met in circumstances where a pension recipient is compelled to compare various communications in order to understand that a decision had been made that impacted upon the rate of payment. In considering what constitutes "notice" His Honour said at 146:
"It is therefore unlikely that Parliament intended that the answer to the question whether a notice had been given might permit an investigation into a range of information supplied by the Department to the benefit recipient over a longer or shorter period to determine whether an inference could be drawn from a part or from the entire body of that information that a prior decision as to the rate or the entitlement had been made."
In Secretary, Department of Family & Community Services v Rogers [2000] FCA 1447; (2000) 104 FCR 272, Cooper J dealt with the requirement of notice under a provision of the Act not relevantly different to s 109. His Honour observed at [31], [33] and [35]:
[31] A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous…
[33] In my view, the matter to be communicated by the "notice" referred to in s 299(2), (3) and (4) is the making of a decision in relation to a sole parent pension which is a reviewable decision under s 1240 of the Act. That involves two elements; the fact that a decision has been made and the content of the decision…
[35] The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.
In Re Peura and Secretary, Department of Family & Community Services [2003] AATA 1123, Deputy President D G Jarvis said at [37]:
From the reasoning of the Federal Court in both Austin and Rogers I think that the correct approach in considering whether the letters relied upon constitute notice of the relevant decision may be summarised as follows:
· the Tribunal should identify the decision of which notice is to be given;
· the letters should be construed objectively;
· the letters should be intelligible, that is they should inform the recipient of the making of the decision and the content of it;
· where the rate of pension is changed as a result of changed circumstances or the manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision; and
· the letters need not advise the reasons for the decision.
The letters should then be construed in accordance with the above principles in order to determine whether they constitute notice of the decision as identified by the Tribunal.
President Downs J, and Senior Member J Constance opined in Secretary, Department of Families, Community Services & Indigenous Affairs v Walshe [2007] AATA 1861 observed at [40]:
In determining what, as a matter of fact, is adequate notice under s 109, it is appropriate to consider the purposes of the notice. The main purpose of the notice must be to inform the pensioner whether he or she will receive further pension payments and what they will be. A further purpose will be to give notice of change. However, it is not necessary to ignore the fact that the pensioner will know what pension he or she has been receiving. Nor is it necessary to ignore the fact that, in many cases, the new rate will be a response to a change in circumstances notified by the pensioner. There is an air of unreality and hypothesizing that a pensioner receives letters like the letters in question and is not aware that they involve a change in pension payments which might be subject to an application for review…
CONSIDERATION OF NOTICE
The notice in question is one dated 11 November 2013.
The notice identified that a decision had been made to reduce the rate of the applicant’s age pension and referred to the determination of his next payment, as well as his regular payment. The notice included “Information used for calculating your regular payment” noting the applicant’s income and assets. Under “Important Information” it is noted “Your age pension has been reduced because the value of your assets has increased.”
The applicant contends that in his view, the notice of 11 November 2013 did not convey that an “intelligible decision” had been made. The applicant claims to have been misled by the notice as:
(a)his payment was calculated with reference to the income test, rather than asset test at the time;
(b)his assets had changed value shortly before the notice;
(c)there was a miscalculation in his pension; and
(d)had he fully appreciated that there may be an error, he would have objected at the time.
The respondent submits that at the time the letter was sent, the applicant’s rate of age pension was being paid under the assets test. It was only after his payment was formally recalculated on 9 July 2015 that it was determined that his rate should have been calculated under the income test. Accordingly the notice of 11 November 2013 was accurate at that time.
In relation to the other factors identified by the applicant, the respondent contends that they could only have been brought to the applicant’s attention if he had been provided with complete reasons and subsequent calculations of his rate of age pension. As stated from the numerous authorities set out above, such reasons are not necessary to give notice for the purposes of s 109 of the Administration Act.
For the above reasons, I am satisfied that, objectively construed, the notice was sufficiently intelligible to convey to the applicant that a decision had been made regarding his age pension and a reduced rate of payment had been calculated because the value of his assets had increased.
ARREARS PAYABLE
The respondent accepts the applicant was underpaid age pension between 4 November 2013 and 18 September 2014, but submits that arrears are not payable beyond the date the respondent commenced their enquiry on 27 August 2014. This is because the applicant’s entitlement was reviewed on the Secretary’s own initiative after receipt of information obtained internally. The record of the investigation reveals that it was not finalised until 9 July 2015, as such this favourable determination is more than 13 weeks after the notice was provided to the applicant. Therefore, s 109(5) of the Administration Act applies and the date of effect of the favourable determination resulting from the review can take place from the date the review was begun by the Secretary, namely 27 August 2014. Since it is accepted that the applicant was underpaid age pension until 18 September 2014, the applicant is entitled to be paid arrears from the date the review began, 27 August 2014, up to 17 September 2014.
Additionally, the respondent accepts that the applicant’s rate of age pension was reduced during the period 7 March 2014 to 19 March 2014 and concedes that there is no record of any notice being given to the applicant in relation to this rate change. Accordingly the applicant is entitled to be paid arrears of age pension from this period.
DECISION
The decision under review is set aside; and
The matter is remitted to the Secretary for recalculation of the applicant’s entitlement to age pension with the direction that arrears are payable to the applicant from 7 March 2014 to 19 March 2014 and from 27 August 2014 to 17 September 2014.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.......................[sgd].............................................
Associate
Dated: 15 February 2018
Date(s) of hearing: 25 August 2018 Applicant: In person Solicitors for the Respondent: Mr S Davidson, Department of Human Services
0
4
0