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

This matter concerned an appeal by the applicant, Du Rhone, against a decision of the Secretary of the Department of Social Services regarding the rate of his age pension. The central dispute revolved around whether the applicant had been underpaid his age pension from 4 November 2013 and, if so, whether he was entitled to arrears of the underpayment. The proceedings were heard by A Poljak SM.

The court was required to determine two primary legal issues: first, whether the applicant had been underpaid his age pension from 4 November 2013; and second, if an underpayment was established, whether the applicant was entitled to receive arrears of pension arising from that underpayment. These issues necessitated an examination of the adequacy of the notice provided to the applicant regarding changes to his pension rate and the application of relevant provisions of the *Social Security (Administration) Act 1999* (Cth) concerning favourable determinations and their effective dates.

The court's reasoning focused on the interpretation of "notice" as required by the *Administration Act* and relevant case law, particularly *Austin v Secretary, Department of Family & Community Services*. The court accepted that the applicant was entitled to a higher rate of age pension from approximately 1 November 2013, constituting a favourable determination under section 78 of the *Administration Act*. The critical question then became the effective date of this determination, which depended on whether adequate notice of the original decision had been given to the applicant. Drawing on *Austin*, the court held that a notice is insufficient if a recipient is compelled to compare various communications to understand a decision impacting their payment rate. The court found that the notice provided to the applicant on 11 November 2013 did not adequately inform him of the decision to reduce his pension, particularly in light of his subsequent inquiry and the subsequent recalculation of his entitlements.

Consequently, the court found that the applicant was entitled to arrears of age pension from 1 November 2013, the date from which his pension should have been calculated under the income test. The decision under review, which awarded arrears from 18 September 2014, was set aside. The matter was remitted to the Secretary for redetermination of the arrears payable to the applicant from 1 November 2013.