Emily Yu and Secretary, Department of Social Services

[2015] AATA 444

[2015] AATA 444 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/0982
Re	Emily Yu
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Damien Cremean
Date	25 June 2015
Place	Melbourne

The decision under review is affirmed

........[sgd]................................................................

Senior Member Damien Cremean

SOCIAL SECURITY – Special Benefit – failure to complete required form – Applicant absent from address – decision affirmed.

Legislation

Social Security (Administration) Act 1999 (Cth), sections 68, 81, 85, Schedule 2, Part 2, clause 3

REASONS FOR DECISION

Senior Member Damien Cremean

25 June 2015

1. The Applicant was periodically in receipt of a special benefit payment since 6 June 2012. On 5 May 2014, Centrelink, which is the service delivery agency for the Department of Social Services (the Department), mailed out to her a notice requesting to complete a special benefit review form and return within 14 days (the 5 May notice). She did not, however, do so. Accordingly, and from 2 June 2014, by a decision made on that date, the special benefit payment was cancelled.

2. The Department’s notice cancelling the Applicant’s special benefit payment advised her to lodge an appeal within 13 weeks after being notified on 2 June of the decision if she disagreed with it.

3. In accordance with such advice the Applicant, disagreeing with the decision, notified the Department of her intention to appeal that decision and on 7 October 2014 lodged a special benefit review form.

4. On 14 October 2014 (after an application for special benefit was lodged by the Applicant on 9 October 2014) the Department notified the Applicant of a decision that she would receive the special benefit payment, but only from 7 October 2014. Such decision was affirmed by a Centrelink authorised review officer on 2 December 2014 and subsequently affirmed by the Social Security Appeals Tribunal by decision made on 5 February 2015.

5. The Applicant applies under s 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of a decision of the SSAT

6. The Applicant’s application to this Tribunal dated 26 February 2015 records:

   Would like to appeal the Dept of Human Services - Centrelink SSAT decision of [sic] cancelling payment on 2/06/2014. The information was incorrect and there was a hearing over the phone without anybody else present. Required to pay all expenses when went to Sydney to look after parents in approximately April and post required forms in Post Box. Do not believe I have had a correct hearing.

7. As to the reasons for making an application to this Tribunal, it is recorded:

   Information was wrong of [sic] details given for Appeal.

8. The hearing in this Tribunal was conducted by telephone and I heard affirmed evidence given by the Applicant. Mr Tim de Uray, solicitor, appeared for the respondent.

9. The Applicant gave evidence that she was not available at her Shepparton address from April until October 2014. She went to Sydney to look after her aged parents who were quite unwell at the time and left no forwarding address for mail to be redirected. She agreed in evidence that she had not completed the special benefit review form as per the 5 May notice and returned it within 14 days as specified. She said that she did not know the notice had been sent out to her.

10. It was agreed by Mr de Uray that the Applicant had lodged a special benefit review form but he pointed out that this was only done on 7 October 2014 and therefore was not done within 13 weeks after the decision of 2 June 2014.

11. This Tribunal has no discretion in this matter. The 5 May notice was sent to the Applicant under s 68 of the Social Security (Administration) Act 1999 (the Act). By virtue of s 81 of the Act, a social security payment may be cancelled if a person, having received a notice under s 68, does not comply with the requirements of the notice. In regards to the sending of the 5 May notice, s 237 of the Act applies to provide that a person will be deemed to receive a notice if the notice is sent by prepaid post to the last advised address of the person. That deeming provision applies in this case to the Applicant. The 5 May notice is deemed to have been received by her – even though she did not in reality receive it because, by the time it was sent, she had left her address to go to Sydney to look after her parents. But having been deemed to have received it, the Applicant, because she was in Sydney, did nothing about it.

12. By operation of clause 3, Part 2, Schedule 2 of the Act, the Applicant became entitled to the special benefit payment on 7 October 2014 which in her case is the relevant start day. In such circumstances, it does not seem relevant to discuss what could have been under s 109 of the Act had the Applicant requested a review within the specified period of 13 weeks from 2 June 2014.

13. Accordingly, the decision under review is correct and must be affirmed.

14. The Tribunal, in passing, would want the Respondent to assure itself, in the case of visually impaired persons, that steps are taken to ensure that they realise important correspondence from the Respondent has been sent to them in the post because, to them, one letter may seem like any other letter and may not seem to be of importance. But that is not this case. In this case when the 5 May notice was sent, the Applicant was absent from her address and living for the time being in Sydney.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien Cremean

....[sgd]....................................................................

Associate

Dated 25 June 2015

Date(s) of hearing	23 June 2015
Applicant	In person
Advocate for the Respondent	Tim de Uray
Solicitors for the Respondent	Department of Human Services