Duley and Secretary, Department of Social Services
[2013] AATA 803
•13 November 2013
[2013] AATA 803
Division General Administrative Division File Number
2012/5613
Re
Colin Duley
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 13 November 2013 Place Perth The decision under review is affirmed.
...........................[sgd].............................................
S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – age pension – applicant given notice to provide statement of income – applicant did not comply with notice – age pension cancelled – applicant made fresh claim for age pension – age pension granted to applicant with effect from date of claim – applicant’s age pension correctly cancelled – age pension not payable to applicant in period from cancellation to fresh claim – decision under review affirmed
LEGISLATION
Act Interpretation Act 1901 (Cth), s 28A and s 29
Social Security Act 1991 (Cth), s 43(1)
Social Security (Administration) Act 1999 (Cth), s 11(1), s 13(1), s 41, s 42, s 68, s 95 and s 237
Social Security (International Agreements) Act 1999 (Cth), Sched 3REASONS FOR DECISION
Deputy President S D Hotop
13 November 2013
Introduction
Colin Duley (“the applicant”) has applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal, dated 14 November 2012, which affirmed a decision of a Centrelink Authorised Review Officer, dated 17 August 2012, cancelling his age pension, with effect from 22 February 2011, and granting him age pension, with effect from 15 July 2011.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T24, pp 1–144) lodged on behalf of the Secretary, Department of Social Services (“the respondent”) and:
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant and of Vicki Selby.
The Relevant Factual Background
The following relevant factual background appears from the T Documents.
The applicant, who is a New Zealand citizen, has been residing in Australia from March 2010. He claimed, and was subsequently granted, age pension under the “social security law”.
A Centrelink record indicates that, on 24 February 2011, the applicant contacted a Centrelink rural agency by telephone and expressed “concerns that he may be being overpaid as he has been working since December at more than $1000.00 per week”, and that he was then “place(d) … on reporting” and “advised of reporting requirements”. (T24, p 140)
By letter dated 24 February 2011, addressed to the applicant at his recorded address in Walcott Street, North Perth (T20), Centrelink advised the applicant of the reporting requirements regarding (inter alia) his income, including the requirement to report relevant information every two weeks, commencing with the reporting period from 22 February 2011 to 7 March 2011. (T3)
By letter dated 22 March 2011, addressed to the applicant at his abovementioned recorded address, Centrelink notified the applicant that his age pension had been cancelled from 22 February 2011 “because [he had] not reported”. The letter also set out his review rights if he did not agree with the decision and advised that, if a review is not sought within 13 weeks of being notified of the decision, he “may not receive [his] full entitlement if the decision is changed”. (T4)
Centrelink records indicate that:
·on 15 July 2011 the applicant contacted Centrelink by telephone “to discuss his NZ pension ceasing following his Aus pension cancellation” and was “advised that NZ payments are capped at the Aus rate due to the provisions of the Aus/NZ social security agreement”;
·on 19 July 2011 the applicant contacted Centrelink by telephone enquiring about his age pension and was advised that “documentation regarding employment income at Dalwallinu Shearing Service must be provided to CSC before AGE can be restored as AGE cancelled 22/2/2011 …”;
·on 20 July 2011 the applicant contacted Centrelink by telephone regarding his age pension and expressed his disagreement with the requirement for him to reclaim age pension and was advised that his contact on 15 July 2011 could reasonably be regarded as an expression of intent to claim age pension for the purposes of the commencement date for payment of age pension;
·on 20 July 2011 the applicant was provided with the necessary forms for claiming age pension and was advised that, in order to ensure that he receives payment “from the earliest possible date”, he must return the completed claim forms by 3 August 2011. (T24, pp 137–138; T5, p 17)
On 22 July 2011 the applicant lodged with Centrelink a completed claim for age pension dated 20 July 2011. (T6)
A Centrelink record dated 22 July 2011 indicates that age pension was granted to the applicant with effect from 15 July 2011 and that the applicant advised that, although his permanent address is in Walcott Street, North Perth, he “spends extended periods of time in rural areas working and/or looking for work” and that he was out of Australia from 16 April 2011 to 14 July 2011 travelling in Europe. (T24, pp 133–134)
By letter dated 22 July 2011, addressed to the applicant at his recorded [Walcott Street] address, Centrelink notified the applicant of the grant of age pension to him with effect from 15 July 2011. (T7)
On 5 April 2012 the applicant notified Centrelink in writing that he “wish[ed] to appeal the decision to cancel [his] age pension on the 22 February 2011 …”. (T13)
On 17 August 2012 a Centrelink Authorised Review Officer (“ARO”) affirmed the decision of 22 March 2011 cancelling the applicant’s age pension with effect from 22 February 2011, and the decision of 22 July 2011 granting age pension to the applicant with effect from 15 July 2011. (T15)
On 24 September 2012 the applicant applied to the Social Security Appeals Tribunal ("SSAT") for review of the ARO’s decision of 17 August 2012.
On 14 November 2012 the SSAT affirmed the ARO’s decision.
The Hearing on 21 August 2013 – The Applicant’s Evidence
At the hearing before the Tribunal on 21 August 2013 the applicant was referred to para 2.2 of the respondent’s Statement of Facts and Contentions in this matter which states as follows:
“ 2.2 On 24 February 2011 Centrelink wrote to the applicant at his recorded address, … Walcott St North Perth, giving written notice of how and when he was required to report his income and circumstance changes to Centrelink in order to receive his age pension payment [T3: p10-11].”
In response to questions from the Tribunal, the applicant gave evidence as follows:
“ …
All right. Now, you have been referred to paragraph 2.2 of the Secretary’s statement of facts and contentions in this matter. What do you say about that paragraph?---There’s nothing to say about that paragraph.
All right. Well, let me ask you this, it refers to a letter that Centrelink wrote to you at an address in Walcott Street, North Perth; was that your then-postal address?---Yes.
On 24 February, giving written notice of how and when he was required to report his income and circumstance changes to Centrelink in order to receive his aged pension, did you receive such a letter? Or I will put it another way. Was such a letter delivered to that address, whether you were there or not? Was it delivered, to your knowledge, to that address?---Yes, it was.
And when, to your knowledge, was it delivered at that address?---To the best of my knowledge, it was around 20 March. Two of them came together. The one – that letter and the one that advised me that my – because I had not been reporting I – my pension had been cancelled. They either came on the same day or one day apart.
According to the records there were – there was a letter dated 22 March, that’s referred to in paragraph 2.3 of the statement?---Yes.
‘Centrelink sent written notice to the applicant’s recorded address’ – that’s presumably the same Walcott Street address – ‘that his aged pension payments had been cancelled from 22 February 2011’?---Yes.
So you received that letter?---I received that letter, yes.
On or about what date?---The 25th probably.
So shortly - - -?---It couldn’t have been any later than that.
So in the ordinary course of post you received that letter dated 22 March?
---Yes.
So within a few days of that date. Now, Dr Hoffman [SSAT Member] also refers to a letter I think dated 24 March. What is that one? Ms Gallagher [representative of the respondent] , can you shed any light on that? Or, Mr Duley, can you? Again, this is at paragraph 29 of Dr Hoffman’s decision. Well, going back a paragraph, 28, ‘Mr Duley told the tribunal that when he returned to Perth in late March or April there were two letters from Centrelink waiting for him.’ There were two letters waiting for you?---Yes.
One dated 22 March, which is presumably the one which has just been referred to. And one dated 24 March. What was that one about, the 24 March letter? So is that – has she correctly recorded that there, or do you say that she has made a mistake?---I have absolutely no idea.
So was there a letter dated 24 March that was there waiting for you, that you can recall? Because if you go to the next paragraph it says, ‘The tribunal has checked the records and is unable to locate any correspondence from Centrelink to Mr Duley dated 24 March.’ So she seems to be saying that certainly that doesn’t accord with Centrelink’s records?---The problem that I had with that was, I was in the process of going to Europe, and with all the hassle that I’ve had with trying to get my pension cancelled or stopped, and completely unaware of the fact that it would then cancel an entitlement in New Zealand, when I got that letter I was coming through Perth, going to Boyup Brook, packed it up, opened it all as you do, read that and said, ‘Great,’ and threw it in the waste paper basket, which of course you’re not supposed to do when you’re having a fight with them two years later.
I think that was the letter that informed you that your pension had been cancelled?---Cancelled, yes.
That was the letter of 22 March?---Yes.
So do you say – do you still maintain that there was a letter dated 24 March or not?---I honestly can’t recall.
All right. Well, so I suppose the question to ask is, might that not have really been a reference to the letter of 24 February rather than 24 March?---It may well have been.
So if that was the case, so is it correct to say that when you returned to Perth in, say, late March, there were two letters waiting for you. One dated 24 February – that’s the notice one – and then one dated 22 March, which was the cancellation notice?---And that was already after my two reporting dates anyway.
Yes. Well, no, but the point is – so you didn’t – you were away when they arrived, so when you returned in late March they were there waiting for you. The question is, when were they delivered to that address? How long before you returned had they been delivered to that address? Now, you say that the one dated 22 March had presumably been delivered a few days after that. My question is, what about the letter dated 24 February, when would that have been delivered to the Walcott Street address?---My brother, he always comments on the amount of mail that I get from Centrelink. He said that, as I remember anyway, he was saying that they both arrived in the same week, or words to that effect.” (Transcript, pp 13–15)
In response to questions from the respondent’s representative, the applicant gave evidence as follows:
“ MS GALLAGHER: Mr Duley, you’ve just said your brother had advised you that both letters had arrived the same week. Was your brother checking your mail while you were away?---He doesn’t normally open my mail unless I talk to him on the phone. If he thinks something is important he sends me a text because he knows that I’m normally unavailable – I’m out of signal when I’m working. I’m often out of signal when I’m working. He sends me a text and I ring him at the first available opportunity to - - -
Well, not necessarily – sorry?---And if it seems to be important then he opens it and he tells me what’s in it.
So it wasn’t the case then that every day he would look into your letterbox and then give you a call to say just on the face of the envelope that you had received a letter from such-and-such that day?---Not at all. The amount of junk mail that you get from Centrelink, I mean, you know, it would cost you a fortune keeping up with it.
So in that case then would you agree that there’s no way to conclusively say when the 24 February letter arrived in your letterbox, from your perspective?---Except that it was well into March, late March, the second half of March.
So if you were returning from a holiday, Mr Duley, what day did you leave that address to go on the holiday? Or from what date were you absent from the property in Walcott Street, so you weren’t there to collect the mail?---I hadn’t been at Walcott since the end of January. This is the thing, you see, you get a letter from – at the end of January there was a letter from Hobart saying they wanted to know what my income was and if I did not notify a particular person in Hobart by 15 January my pension would be cancelled. Well, I didn’t get that until the end of January, so as I understood it my pension would be cancelled, so I thought, great. Because I had actually rung Hobart on the 21st – this is another problem that you have with Centrelink. I had rung Hobart, which is normally excellent. Hobart is excellent. I rang them and at that point they still had a mailbox, a voicemail box. … At that point I rang them, I know it was 21 December because I was trying to get hold of them before – I tried it once before, I waited until the mailbox came on. And I said to them, ‘Look, I am still,’ – because I had a connection in Hobart who was excellent. He is the guy who cancelled my pension in September, of which there is no record on my file. But I just said to them, ‘Tell Mike I am working, I am earning more than $1,000 a week. I am still getting my pension. I have spoken to him in November as well, I’m still getting my pension, I don’t know what to do about this, and I will leave it at that.’ And the result of that was on 22 December someone sent me a letter saying they wanted all the things, and then if I hadn’t replied by 15 January, they would cancel it. I get the mail at the end of January, my first break. We were working 12 hours a day and 28 days in the month. And I assumed that it was cancelled at that point. That is why on 24 February, when it wasn’t, I went into the office in Merredin and said, ‘Look, it’s got to stop’.
MS GALLAGHER: Mr Duley, the time from January 2011 and through to February/March, the period that we’re talking about with these letters, the address that Centrelink had recorded as your address was … Walcott Street, North Perth?---Yes.
So no steps were taken by yourself to advise them of any other address. So the address that they had as your recorded address - - -?---I didn’t have - - -
- - - was the address that you had advised was your current address to send the correspondence to?---That was my address.
Yes?---And if they wrote a letter to there today I would still get the mail.
So that was the address that Centrelink had recorded as the address to direct correspondence?---It was my only address.
Yes. And that was also an address that you were not residing at from late January – well, from the time in January 2011 until the time that you returned in March?---I normally shear sheep, I can be anywhere between Jerramungup and Dalwallinu. I come through Perth as often as possible and collect my mail. There is a very serious problem that people that live in Perth simply do not understand. If you ask someone at your address in Perth to forward your mail it can take two weeks or more to get there. And in the meantime you may have moved to another place, and you may have to turn around and drive 400 kilometres back to pick up a piece of junk mail from Centrelink. You don’t do that. Nobody does that. And there’s a lot of guys that work up in the mines and the construction, and they’re out for two weeks, three weeks, four weeks at a time. It’s - - -
DEPUTY PRESIDENT: That’s what I was going to ask you. So what arrangements did you make to have your mail deliveries checked while you were away?---It was just stacked up.
(INDISTINCT) MS GALLAGHER: You referred to your brother, I think?---Yes.
So what was the arrangement with your brother?---He just stacks it up, he just puts it in a box. And when I turn up I open it or - - -
So does he live nearby, does he live near the Walcott Street address or - - -?
---Yes, he lives there.
At that address?---At that address.
At that very address. Right?---Yes.
So he would be there when mail arrived every day?---Yes.
Is that right?---M’mm.
He was there throughout that period you were away?---Yes.
So he wasn’t coming from somewhere else and checking it periodically?---No. But he said to me, he said, ‘Both those letters,’ – because I said, ‘Look at this, you know, there’s two things here. You know, here’s one thing that tells me I’m going to have it,’ – and he said, ‘Yeah, well, they both arrived within two or three days of each other.’ That was just an aside. It didn’t worry me at the time. I threw them in the waste-paper basket where they belonged. The thing is at that point, the crunch at that point was, I did not anticipate the hassle that came. I had a huge hassle getting Centrelink to stop paying it, and then I had – and then when I found out all the ramifications of that, I was in Germany on the wrong side of the world, and without any money. And the only way I can start it is to get back into Australia. Hobart was brilliant. New Zealand was less brilliant. Hobart was brilliant. But Federal Centrelink, you can forget it. …” (Transcript, pp 15–18
The Tribunal’s Direction of 21 August 2013
Following the applicant’s evidence the Tribunal discussed with the parties the desirability of their providing further evidence regarding the posting and delivery of the Centrelink letter dated 24 February 2011, referred to in paragraph 6 above and in the abovementioned evidence of the applicant, which would be formally tendered at a subsequent resumed hearing in this matter. Accordingly, the Tribunal made the following direction:
“ On or before 9 September 2013 each party file with the Tribunal, and serve on the other party, all evidence on which they propose to rely regarding the posting and delivery to the applicant’s recorded address, namely, … Walcott Street, North Perth, of the Centrelink notice dated 24 February 2011, referred to in para 2.2 of the respondent’s Statement of Facts and Contentions dated 15 March 2013.”
Material Filed in Response to the Tribunal’s Direction of 21 August 2013
In accordance with the abovementioned direction of the Tribunal, the respondent filed and served a witness statement of Vicki Selby, dated 5 September 2013, and other relevant documents.
The applicant did not provide any material in response to the abovementioned direction of the Tribunal.
The Resumed Hearing on 21 October 2013
At the resumed hearing before the Tribunal on 21 October 2013 the applicant confirmed that he had not provided any evidence from his brother regarding the date of delivery to the Walcott Street address of the abovementioned Centrelink letter dated 24 February 2011 because it was not possible for his brother to remember “trivia like when he picked up a letter out of the mailbox” three years ago. The applicant also confirmed that he did not wish to give any further oral evidence in relation to that matter.
The respondent called Vicki Selby as a witness.
The evidence of Vicki Selby
Ms Selby confirmed that she had signed a witness statement, dated 5 September 2013, for the purpose of this proceeding and that its contents are true and correct to the best of her knowledge and belief. The contents of Ms Selby’s statement, which was tendered in evidence by the respondent (Exhibit R1), are as follows:
“1. I hold the position of Senior Liaison Officer NSW attached to the Output Management Team NSO in Centrelink. The Output Management Team is responsible for Centrelink’s bulk customer mail. I have worked in the area of mail management, in various roles, since 1985.
2.Centrelink do not keep copies of the physical prints of letters mailed to Customers. Instead, the information used to generate the physical prints is stored on Centrelink’s Customer Archive Retrieval System (CAR). The letters referred to at paragraph 17 of this statement appear to have been retrieved from CAR.
3.Centrelink’s mail processing has been outsourced for some years to private mailhouse operators. The private mailhouse operators are responsible for printing, enveloping and handing over customer mail to Australia Post.
4.Batch laser advices (BLA), are generated from electronic transactions either initiated by customer service officers or automatic computer processes. These BLAs are not printed locally but are generated as electronic data which is transmitted on secure lines from Centrelink to the relevant private mailhouse.
5.BLAs are generated in unique sequential batches at the end of each day at the Canberra Data Centre. Up to 70 different batches can be generated per day per computer environment. Each batch can contain up to 25,000 letters. Generally letters of a similar type are grouped into one batch.
6.The letters referred to at paragraph 17 of this statement were almost certainly printed as part of the daily job P#BLP2A5.
7.Each batch consists of a data file, a Quality Control Sheet (QCS) and a Mail Manifest Report, dealing with postal rates.
8.Electronic checks are in place to reconcile the amount of data sent by Centrelink with the amount of data received by the mailhouse. The number of letters sent by Centrelink must match the number of letters received by the mailhouse before the mailhouse operator is permitted to commence printing. If there is a discrepancy in the mailhouse reconciliation, all processing must stop and Centrelink is notified.
9.If no discrepancies are detected the mailhouse proceeds to laser prints [sic] each batch of letters. After printing, a further reconciliation check is conducted by the mailhouse to ensure the correct amount of data has been printed.
10.Printed letters are counted again by the mailhouse when the letters are enveloped. A further reconciliation process occurs before the mailhouse delivers the letters to Australia Post. This involves the mailing house checking that the number of letters delivered to Australia Post match the number of letters sent by Centrelink.
11.The mailing house advises the Output Management Team of the mailhouse reconciliation details by entering this information into a Centrelink database. This database includes details of the batches of letters and numbers of letters lodged for postage. If any problems arise the mailhouse operator is required to notify Centrelink immediately.
12.The Output Management Team staff ensures all details provided by the mailhouse are correct and that all letters are accounted for and that figures provided by the mailhouse match Centrelink’s totals.
13.Centrelink staff also checks [sic] the total letters lodged with Australia Post against the postage details provided by Australia Post. This ensures that the mailhouse operators are providing correct data to Centrelink and that each batch of letters is reconciled at the beginning and end of each process.
14.Each customer mail envelope is marked with a Postage Paid Australia stamp. Australia Post issues a bill to Centrelink for the postage of these letters at the end of each calendar month. Centrelink mail is picked up at various times during the day by Australia Post, who have an outstation in the mailing houses. Any problems with posting are generally identified before mail is loaded onto trucks. From 2006 the reconciliation process was improved by the inclusion of a mailing statement (a docket from Australia Post specifying the number of mailpacks lodged by the mailing house) in Centrelink’s database. From 2006 Centrelink can view each mailing statement online.
15.Any discrepancies detected with any batch printing is fully documented and investigated. If at the end of enveloping there are less letters than were sent for printing by Centrelink, Centrelink may resend the batch for reprinting by the mailhouse. Similarly, if Centrelink receives negative feedback about the mailing from the Centrelink network, the issue is immediately raised and investigated with the relevant mailhouse. Centrelink’s standard operating procedures require that a report of any problems is provided by the relevant mailhouse within 24 hours of any negative feedback being reported. Penalties are in place for mail incidents and breaches of privacy.
16.Much of the processing of Customer mail happens automatically and electronically. Human intervention by the mailhouse operator is required for the following actions:
(a)loading blank paper into the printers; unloading mail onto trolleys to move to the insertion area; loading documentation into an inserter for folding and insertion into envelope;
(b)unloading documents from enveloper to Australia Post trays for lodgement.
17.I examined Centrelink’s records of P#BLP2A5 job for the 2 dates that the letters may have been in and found the following information:
Mailhouse Operator: SEMA Adelaide
letter dated 24th Feb P#BLP2A5 P14.66547 was sent to mailhouse 24/2/11
4687 records –
4686 records lodged with Aust Post docket 5828164 on 25/2 this lodgement would have been received by all customers no later than 28/2/11 as weekend 26-27/2/11 – 1 record a spoil lodged with Aust Post docket 5833357 28/2/11
letter dated 22/3/11 P#BLP2A5 P12.67054 was sent to mailhouse 22/3/11
4,665 records
4,665 records lodged with Australia Post 23/3/11 docket 5929166 – received by customers at the lasted 25/3/11
No incidents or discrepancies for either job – previously I would have been able to provide Australia Post dockets but Australia Post now archive the dockets and I have requested hard copies.
…”
In her oral evidence Ms Selby explained that her references to “letter dated 24th Feb” and “letter dated 22/3/11” in para 17 of her statement were in fact references to batches of letters bearing those dates, not to single letters. Ms Selby said that the most that she is able to say about particular letters addressed to the applicant, dated 24 February 2011 and 22 March 2011, is that they would have been included in the batches of letters bearing those dates.
Additional relevant documents
The respondent also tendered in evidence (Exhibit R2) various emails and attachments regarding their efforts in seeking to produce relevant Australia Post dockets relating to the batches of letters dated 24 February 2011 and 22 March 2011 (including the “spoil” lodged with Australia Post on 28 February 2011) referred to in para 17 of Ms Selby’s witness statement.
The Issues
The fundamental issue for the Tribunal’s determination is whether the applicant’s age pension was correctly cancelled with effect from 22 February 2011.
Age pension was re-granted to the applicant on 22 July 2011, with effect from 15 July 2011. The question arises, however, as to whether age pension was payable to the applicant in the period from 22 February 2011 to 14 July 2011.
The Relevant Legislation
The abovementioned issues fall to be determined under the “social security law” which comprises the Social Security Act 1991 (“SS Act”), the Social Security (Administration) Act 1999 (“Administration Act”), and the Social Security (International Agreements) Act 1999 (“International Agreements Act”).
The SS Act and the International Agreements Act
Section 43 of the SS Act deals with qualification for age pension. It is not in dispute that, pursuant to s 43(1) of the SS Act and Schedule 3 to the International Agreements Act (which contains the Agreement on Social Security between the Government of Australia and the Government of New Zealand), the applicant was, at all material times, qualified for age pension.
The Administration Act
The Administration Act relevantly provides as follows:
“ 11 General rule
(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
…”
“13 Deemed claim—person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…”
“ 41 Commencement
(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.
42 Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”
“ 68 Person receiving social security payment or holding concession card
(1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors supplement) is being paid.
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a) inform the Department if:
(i)a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;
(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
(c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.
…”
“ 95 Automatic cancellation—failure to provide statement under subsection 68(2)
(1) If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.”
“ 237 Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).”
The Acts Interpretation Act 1901
The Acts Interpretation Act 1901 relevantly provides as follows:
“ 28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
Note:The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
29Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
…”
Analysis
Was the applicant’s age pension correctly cancelled with effect from 22 February 2011?
Section 95(1) of the Administration Act provides for the automatic cancellation of a “social security payment” (including age pension) if the conditions specified in paras (a), (b) and (c) of that subsection are satisfied.
As regards paras (a) and (b) of s 95(1) of the Administration Act, the Tribunal is satisfied, and finds, that the letter, dated 24 February 2011, referred to in paragraph 6 above, constituted a notice under s 68(2) of that Act which related to the payment of age pension in respect of a number of fortnightly periods commencing with the period from 22 February 2011 to 7 March 2011.
As regards para (c) of s 95(1) of the Administration Act, the critical matter for the Tribunal’s determination is the date on which the notice contained in the abovementioned letter, dated 24 February 2011, was given to the applicant (as required by para (a) of s 95(1).
The Tribunal notes the applicant’s evidence that he was away from Perth from late January 2011 to late March 2011 and that his brother had told him that two letters from Centrelink (namely, the abovementioned letters dated 24 February 2011 and 22 March 2011) had both arrived at the Walcott Street, North Perth address in the same week in late March 2011. The Tribunal also notes that the applicant did not provide to the Tribunal any corroborating evidence from his brother because he said that it was not possible for his brother to remember such “trivia” from about three years ago. In these circumstances, the Tribunal is not satisfied, on the basis of the applicant’s evidence, that the abovementioned letter from Centrelink, dated 24 February 2011, was not delivered to the Walcott Street, North Perth address until late March 2011.
The Tribunal finds that the abovementioned letter, dated 24 February 2011, was properly addressed to the applicant at his address in Walcott Street, North Perth last known to the respondent. On the basis of the evidence of Vicki Selby, furthermore, the Tribunal is satisfied, on the balance of probabilities, that the abovementioned letter, dated 24 February 2011, was, on that date, sent by pre-paid post to the applicant. Pursuant to ss 28A(1) and 29(1) of the Acts Interpretation Act 1901, the notice contained in that letter is, “unless the contrary is proved”, deemed to have been given to the applicant “at the time at which the letter would be delivered in the ordinary course of post”. The Tribunal is satisfied, and finds, that the time at which that letter would have been delivered to the Walcott Street, North Perth address “in the ordinary course of post” is no later than 28 February 2011. Having regard to the evidence before it, the Tribunal is not satisfied that that letter was not delivered to that address by 28 February 2011. Accordingly, the Tribunal is satisfied, and finds, that the notice contained in that letter is deemed to have been given to the applicant no later than 28 February 2011.
It is common ground that the applicant did not comply with the notice contained in the abovementioned letter, dated 24 February 2011, so far as it related to the period from 22 February 2011 to 7 March 2011.
Accordingly, the Tribunal finds that, in respect of the notice under s 68(2) of the Administration Act contained in the abovementioned letter, dated 24 February 2011, the conditions specified in paras (a), (b), and (c) of s 95(1) of the Administration Act are satisfied. It follows (s 95(2) not being applicable in this case) that, by force of s 95, the applicant’s age pension is cancelled on the first day of the abovementioned period, namely, 22 February 2011.
The Tribunal concludes, therefore, that the applicant’s age pension was correctly cancelled with effect from 22 February 2011, in accordance with s 95(1) of the Administration Act.
Was age pension payable to the applicant in the period from 22 February 2011 to 14 July 2011?
As previously mentioned, age pension was re-granted to the applicant on 22 July 2011, with effect from 15 July 2011. The latter date was determined in accordance with s 13(1) of the Administration Act on the basis that the applicant contacted Centrelink by telephone in relation to (inter alia) a claim for age pension on that date and, within 14 days thereafter (namely, on 22 July 2011), lodged a claim for age pension. Pursuant to ss 41(1) and 42 of the Administration Act, and clause 3(1) of Schedule 2 to that Act, age pension became payable to the applicant on 15 July 2011.
The Tribunal notes that, according to a Centrelink record (see paragraph 10 above), the applicant was outside Australia from 16 April 2011 to 14 July 2011. It would, however, have been open to the applicant to contact Centrelink (for example, by telephone or email) during that period in relation to a claim for age pension. Had he done so, he would have been taken to have made a claim for age pension on the date of contact, pursuant to s 13(1) of the Administration Act, provided that he lodged a claim for age pension within 14 days after that date. In those circumstances age pension would have been payable to him from the date of his contact with Centrelink. There is, however, no Centrelink record of the applicant’s having contacted it in relation to a claim for age pension during that period and, in any event, it is common ground that the applicant did not lodge a claim for age pension (as required by s 13(1)(d) of the Administration Act) until 22 July 2011.
Accordingly, pursuant to ss 13(1), 41(1) and 42 of the Administration Act, age pension became payable to the applicant from 15 July 2011, and the Tribunal, on the basis of the evidence before it, is satisfied, and finds, that age pension was not payable to the applicant at any time in the period from 22 February 2011 to 14 July 2011.
Conclusion
The Tribunal concludes, therefore, that:
·the applicant’s age pension was correctly cancelled with effect from 22 February 2011;
·age pension became payable to the applicant with effect from 15 July 2011 and was not payable to the applicant in the period from 22 February 2011 to 14 July 2011.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop .................[sgd D Brodie]................................................
Administrative Assistant
Dated 13 November 2013
Dates of hearing 21 August, 21 October 2013 Representative of the Applicant In person (unrepresented) Representative of the Respondent Ms L Gallagher Solicitors for the Respondent Sparke Helmore
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