Elebeck and Secretary, Department of Social Services (Social security) - [2025] ARTA 762

Elebeck and Secretary, Department of Social Services (Social security) [2025] ARTA 762 (12 February 2025)

Applicant/s: Miss Elebeck

Respondent: Secretary, Department of Social Services

Tribunal Number: 2024/S191445
Tribunal: General Member B Walters
Place:Sydney
Date:12 February 2025

Decision:The Tribunal affirms the decision on 23 May 2024 to set aside the original cancellation decision made on 19 March 2019. The date of effect of the Tribunal’s decision is 10 October 2024.

CATCHWORDS
SOCIAL SECURITY – Parenting Payment – cancellation – request for information about circumstances not answered – decision changed by review officer but no back pay payable – request for review made more than 13 weeks after cancellation – notification of cancellation deemed to have been received – date of effect is date of request for review – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

This review is about the cancellation of Miss Elebeck’s parenting payment.
On 10 May 2023 Services Australia (Centrelink) made a decision to cancel Miss Elebeck’s parenting payment from 8 March 2023.
Miss Elebeck requested a review of this decision and on 23 May 2024 an authorised review officer (ARO) changed the decision, finding that the cancellation of Miss Elebeck’s parenting payment was incorrect, but that because she had not requested a review within 13 weeks of being notified of the decision, no back pay was payable.[1]
[1] Page 12 of the hearing papers.
Miss Elebeck sought further review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) on 10 October 2024.[2]
[2] Page 3 of the hearing papers.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 were taken to be an application for review to the newly established Tribunal. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 gives the Tribunal authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The application was heard on 20 January 2025. Miss Elebeck appeared by telephone and gave affirmed evidence. The Tribunal had before it 129 pages of documents provided by Centrelink (the hearing papers). These were sent to Miss Elebeck prior to the hearing.
After the hearing, the Tribunal sought and received from Centrelink a copy of the cancellation notice issued to Miss Elebeck.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The issues which arise in this case are:
· Whether the decision to cancel Miss Elebeck’s parenting payment was correct; and
· If not, whether she is entitled to any arrears of payment, having regard to the timing of her request for review.

CONSIDERATION

Issue 1 – Whether Miss Elebeck’s parenting payment was properly cancelled

Subsection 68(2) of the Administration Act provides that Centrelink may give a notice to a person who is receiving a social security payment requiring that they inform Centrelink if a specified event or change in circumstances occurs or requiring that they give Centrelink one or more statement about a matter that might affect their payments.
If a person has been given a notice pursuant to section 68 and they do not comply with the requirement of the notice, then subsection 81(1) of the Administration Act allows Centrelink may determine that their social security payment is to be cancelled or suspended.
On 24 April 2023 Centrelink wrote to Miss Elebeck about her parenting payment and advised her that she must report on 23 May 2023 any change to her circumstances and whether she and/or her partner were employed for the period 8 March 2023 to 23 March 2023.[3]
[3] Pages 115 to 188 of the hearing papers.
Before 23 May 2023, by letter dated 10 May 2023, Centrelink wrote to Miss Elebeck again and notified her that her parenting payment had been cancelled with effect from 8 March 2023 because she had not reported.
In relation to the correctness of this decision, the ARO wrote:[4]
On 10 May 2023, we sent you a letter advising your Parenting Payment had been cancelled from 8 March 2023. I have found that this decision was incorrect because you were previously advised to report your circumstances on 24 May 2023.
[4] Page 14 of the hearing papers.
The Tribunal shares this view and finds that Miss Elebeck’s parenting payment was not properly cancelled on 23 May 2023 pursuant to section 81 of the Act as at the time of the cancellation decision, Miss Elebeck had not yet failed to comply with the requirements of the notice.

Issue 2 – Whether Miss Elebeck is entitled to any arrears of payment

On 8 May 2024 Miss Elebeck provided to Centrelink an SS351 Explanation or formal review of decision form.[5] In their written reasons, the ARO explained that they accepted that the lodgement of this form was a request for review. However, because there was no evidence that Ms Elebeck had contacted Centrelink about the cancellation of her parenting payment within 13 weeks of being notified of the decision, she could not be paid any back pay.
[5] Page 30 of the hearing papers.
Provisions concerning the date of effect of a favourable decision on review are set out at section 109 of the Administration Act. To summarise the effect of these provisions in relation to appealing a payment cancellation:
·If a person is notified of a decision to cancel their payment and within 13 weeks they request a review of that decision, then they can receive back pay from the date of the cancellation.[6]
·If a person is notified of a decision to cancel their payment and more than 13 weeks later they request a review of that decision, then they can receive back pay from the date they requested the review.[7]
·If a decision is made to cancel a person’s payment but they are not given notice of the decision, and they request a review, then they can receive back pay from the date of the cancellation.[8]
[6] Subsection 109(1) of the Administration Act.
[7] Subsection 109(2) of the Administration Act.
[8] Subsection 109(3) of the Administration Act.
At hearing, Miss Elebeck told the Tribunal that Centrelink would tell her that they would send a letter, and then she would not receive it. She said that she had not received the letter sent on 10 May 2023 advising that her payment had been cancelled.
However, as a matter of law, Miss Elebeck is deemed to have received letters from Centrelink if they have been sent to her by an approved method of delivery.[9]
[9] Section 5 of the Administration Act.
Centrelink’s records indicate that the letter was sent to Miss Elebeck via myGov on 12 May 2023. Centrelink’s records show that the letter was read by Miss Elebeck on 10 October 2024.
Section 14A of the Electronic Transactions Act 1999 provides that, unless otherwise agreed, the time of receipt of an electronic communication is when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee.[10] Subsection 14A(2) provides that it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address. What is relevant is when the letter was electronically delivered and capable of retrieval, regardless of whether Ms Elebeck accessed the letter later, or at all.
[10] Paoli and Secretary, Department of Social Services (Social services second review) [2021] AATA 1703 at [40].
On this background, the Tribunal is satisfied that Miss Elebeck was given notice of the decision to cancel her parenting payment on 12 May 2023, when the letter was sent to her myGov inbox.
Following the cancellation of her payment on 10 May 2023, Miss Elebeck’s next recorded contact with Centrelink was on 7 February 2024. Notes made by a Centrelink officer on her file say that she attended a Centrelink office in person to ask about arrears of family tax benefit (FTB) she was expecting to be paid. The following notation was also included:[11]
also advised last paid ppp 4/23 would need to reapply
[11] Page 103 of the hearing papers.
Miss Elebeck followed this advice and lodged a new claim for parenting payment that day which was granted from 7 February 2024, subject to a waiting period running 7 February 2024 to 18 March 2024.[12]
[12] Notations at page 109 of the hearing papers suggest that the start date of the 2024 grant of parenting payment and the imposition of waiting periods has also been the subject of a review by an ARO.
The Tribunal raised with Miss Elebeck that Centrelink’s file contained no record of any contact from her between the date her payment was cancelled and 7 February 2024. Miss Elebeck said that she had tried to make contact with Centrelink by phone but she was unable to get through to speak with anyone. She went into the office in person to try and fix the issue face to face. However, she did not remember the dates of any of her contacts with Centrelink.
In Philp and SDEEWR [2009] AATA 857, the AAT said:[13]
As is now widely recognised in decisions of this Tribunal, a broad view ought to be taken of what constitutes an application for review, particularly in this jurisdiction.
[13] At [20].
If a person communicates to Centrelink that they do not agree with a decision, they are unhappy with a decision, or that they believe a decision is incorrect, then this can be taken as a request for review.[14] It is not necessary for a formal request for review, or a request in writing, to be made.[15]
[14] See Lamotte and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 978 and Ingram and Secretary, Department of Family and Community Services [2004] AATA 279.
[15] Frost and Secretary, Department of Social Security (1995) AATA 10360.
Miss Elebeck attended a Centrelink office in person on 7 February 2024. The Tribunal considers that the notations made to her file are consistent with her having raised, in addition to her concerns regarding FTB, the question of her entitlement to parenting payment and her dissatisfaction with the payment not being made to her.
On the background of the available evidence and the case law, the Tribunal finds that Miss Elebeck requested a review of her parenting payment cancellation on 7 February 2024.
However, Miss Elebeck sought review from the AAT on 10 October 2024, more than 13 weeks after the decision of the ARO on 23 May 2024.
Item 8 of the Table at section 147 of the Administration Act concerns the date of effect of decisions made by the Tribunal on first review where a person was given written notice of a decision under the social security law and they made an application to the Tribunal for first review more than 13 weeks after the notice was given. The effect of Item 8 is that if on review the Tribunal varies the decision or sets it aside, and the effect of that decision is to direct Centrelink to make a payment of a social security payment to the person then the reviewable decision takes effect on the day the person made their application to the Tribunal for first review.
The effect of equivalent provisions in place prior to the commencement of the Administrative Review Tribunal were discussed in SDEWR and Mitchell [2006] AATA 804:
56. In cases where an application is lodged with the SSAT more than 13 weeks after the applicant has been given written notice of the ARO’s decision, subsection 152(4) of the Administration Act provides that the social security law has effect as if the decision under review (being in this case the ARO’s decision) had taken effect on the day of lodgement of the application. In the present case, that date is 15 February 2006, being the date of Mr Mitchell’s (belated) application to the SSAT. By then Mr Mitchell was already receiving the DSP, and so the setting aside of any decision made nearly 3 years earlier to suspend his DSP would not have any practical utility, and would not produce any entitlement to arrears or DSP.
57.The apparent purpose of the restriction on retrospectivity by virtue of subsection 152(4) of the Administration Act, and of a corresponding restriction in subsection 109(2) in relation to decisions of an ARO, is to limit the total liability of the Secretary if a person delays pursuing his or her claim for longer than the periods of 13 weeks referred to in those subsections. Further, the subsections have the effect of requiring persons who are making claims to pursue their rights of review promptly. In the case of applications for arrears of pension, where the pension is later reinstated as occurred in the present case, the subsections operate in the same way as a statute of limitations, and effectively bar the claimant from entitlement.
Pursuant to Item 8 of the Table at section 147, any favourable decision made by the Tribunal can only take effect from 10 October 2024, by which time Miss Elebeck was already receiving parenting payment because Miss Elebeck lodged her application for first review with the Tribunal more than 13 weeks after the decision of the ARO. The practical consequence of this is that Miss Elebeck will not be able to receive additional arrears of parenting payment.

DECISION

The Tribunal affirms the decision on 23 May 2024 to set aside the original cancellation decision made on 19 March 2019. The date of effect of the Tribunal’s decision is 10 October 2024.

Date(s) of hearing:	Monday, 20 January 2025
Representative for the Applicant:	Self-represented