Estate of Emily Pitt and Secretary, Department of Social Services
[2014] AATA 575
•19 August 2014
[2014] AATA575
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6716
Re
Estate of Emily Pitt
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms S Taglieri (Member)
Date 19 August 2014 Place
Hobart
The decision under review is affirmed and the Application for review dismissed.
........................................................................
Ms S Taglieri (Member)
CATCHWORDS
Cancellation of Age Pension due to non-compliance with notice to complete questionnaire; whether reasonable excuse; whether sections authorising cancellation ought to apply; Age Pension payable from 25 August 2011 to 26 April 2012.
LEGISLATION
Social Security (Administration) Act 1993 (“the SSA Act”)
Disability Discrimination Act 1992
Guardianship and Administration Act 1995 (Tasmania)
CASES
Austin v Secretary of the Department of Family and Community Services [1999] FCA 938
Secretary of the Department of Family and Community Services v Rogers [2000] FCA 1447
Secretary of the Department of Family and Community Services v Martin [2001] AATA 148
Frost and Secretary Department of Social Security [1995] AATA 228
Secretary of Department of Employment and Workplace Relations v Real[2007] FCA 998
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20
Plug; Department of Social Security [2000] AATA 744
REASONS FOR DECISION
Ms S Taglieri (Member)
Mrs Emily Pitt was residing in England from at least 2008 until the date of her death on 26 April 2012.[1] It is common ground between the parties that she was eligible for and received an Age Pension (“AP”) until it was suspended and then cancelled effective 10 March 2010.[2] It is also apparent that the cancellation of the AP arose because Ms Pitt did not respond to a Notice served upon her pursuant to section 63(4) of the Social Security (Administration) Act 1993 (“the SSA Act”) which required her to complete and return a Questionnaire[3] (“the Notice and Questionnaire”).
[1] Date recorded in Grant of Probate, T18 at page 48 of the T Documents
[2] Notice of suspension at T5, page 18 of T Documents and Notice of cancellation at T6, page 19 of the T Documents
[3] T3 at page 15 of the T Documents
An application was made by one of the Executors of Ms Pitt’s Estate to the Social Security Appeals Tribunal (“SSAT”) on behalf of her Estate, to review the decision to cancel Ms Pitt’s age pension. The Executor is Huw Ellis Davies, a Legal Practitioner and he is also the Applicant before this Tribunal.
The SSAT allowed the Executors application in part, ordering that Ms Pitt’s AP ought not have been cancelled from 10 March 2010 and that she was entitled to receive AP from 25 August 2011 to the date of her death, at a rate to be calculated.[4]
[4] Paragraphs 24 and 33 to 35 inclusive of SSAT Decision, T 2 at pages 11, 13 and 14 of the T Documents
The Executors were dissatisfied with the SSAT decision and applied to this Tribunal to seek reinstatement and payment of AP from 10 March 2010. The parties consented to the Tribunal determining the Application for Review on the papers.
CONTENTIONS
The Respondent contends that Ms Pitt was lawfully required and given notice to complete the Questionnaire, and failed to do so without reasonable excuse. Further, that such failure entitled cancellation of AP from 10 March 2010.
The Applicant does not dispute that Ms Pitt was required to complete the Questionnaire and that she failed to do so. He contends that the failures were the result of dementia from which Ms Pitt suffered between 2008 and the date of her death. He argues she was incapable of understanding the Notice and Questionnaire received from the Respondent, and then acting to respond to them. In such circumstances, the Applicant argues:
(a)In effect that Ms Pitt’s failures were reasonably excused such that her AP ought not have been cancelled from 10 March 2010; and
(b)That the cancellation of AP from 10 March 2010 amounted to discrimination of Ms Pitt on the basis of a disability or otherwise constituted a failure to provide natural justice.
CONSIDERATION OF ISSUES AND CONTENTIONS
By virtue of the operation of section 64(1) of the SSA Act, the AP was not payable to Ms Pitt once she failed to comply with the Notice received to complete the Questionnaire, providing:
othe Notice and requirement to complete the Questionnaire was reasonable; and
oMs Pitt did not have a reasonable excuse for not complying with the Notice; and
othat it was reasonable for the section to apply to Ms Pitt, being a person receiving a social security payment.
The Applicant has not argued that the Notice was not received and it is apparent that it most likely was, given that it was discovered by Mr David Clarke, Ms Pitt’s nephew, while Ms Pitt was alive.[5] The Applicant has not argued that the requirement to complete the Questionnaire was not reasonable. Rather he argues that the failure to do so was explained by Ms Pitt’s disability and hence was reasonably excused or alternatively it is not reasonable for section 64(1) of the SSA Act to apply to Ms Pitt.
[5] Email from Mr Clarke at T7, page 20 of T Documents
I am satisfied that all Notices given by the Respondent under section 63 and the Notices to suspend then cancel the AP, were lawfully given and according to the requirements of section 237 of the SSA Act. I accept the contention that they were valid notices within the requirements established in Austin v Secretary of the Department of Family and Community Services[6] and Secretary of the Department of Family and Community Services v Rogers[7]. Unless the Respondent had some reasonable degree of knowledge that Ms Pitt was likely to have lacked comprehension of the Notices, there was no requirement at law for the Respondent to ensure that the Notices were understood.[8]
[6] [1999] FCA 938
[7] [2000] FCA 1447
[8] Re: Secretary of Department of Family and Community Services and Martin [2001] AATA 148
In view of the above findings, whether section 64(1) of the SSA Act operated in this case to make AP not payable to Ms Pitt depends on whether the Tribunal is satisfied that:
A.there was a reasonable excuse for Ms Pitt’s non-compliance; and
B.it is reasonable for the subsection not to apply to Ms Pitt.
REASONABLE EXCUSE AND WHETHER SUB-SECTION 64(1) APPLIES
On 25 August 2011, the Secretary received information by email from Mr Clarke, that he had “taken over responsibility” for Ms Pitt’s affairs and discovered the various notices from the Respondent.[9] The content of this email sought reinstatement of the AP to Ms Pitt and direction from the Respondent as to what was required in order to facilitate that.
[9] T7 of T Documents
Despite Mr Clarke’s email communicating to the Respondent that Ms Pitt had a claimed inability to complete the questionnaire, other than observing that Mr Clarke did not have authority to act for Ms Pitt, the Respondent did not communicate what was required. For example, there is no evidence that the Respondent replied to Mr Clarke or advised that in order to act on the information he provided, an authority was required. Instead, a further letter was sent to Ms Pitt, simply stating that because she had not sought a review within 13 weeks of the decision to cancel her AP, it was not possible to restore AP and that she now no longer qualified.[10]
[10] T10 at page 23 of T Documents
Mr Clarke subsequently applied for and obtained an Order appointing him as Deputy of Ms Pitt, (being equivalent to an Administrator pursuant to the Guardianship and Administration Act 1995 in Tasmania). This is evidenced by:
(i)T12 which comprises a standard form Court of Protection Assessment of Capacity form completed by Ms Pitt’s General Practitioner, Dr Amanda Bertram following assessment undertaken on 22 September 2011; and
(ii)Final Court of Protection Order dated 27 February 2012, provided by the Respondent, pursuant to the direction made by the Tribunal on 4 July 2014. This appoints Mr Clarke as Deputy for Ms Pitt.
The sequence of events identified above, demonstrate that Mr Clarke’s contact with the Respondent was reasonably promptly followed by actions to apply for a Court of Protection Order to enable Mr Clarke to have legal authority to act on behalf of Ms Pitt. I infer from this that it is highly likely that Mr Clarke had implied authority to act on behalf of Ms Pitt when he emailed the Respondent on 25 August 2011. I am satisfied that his email ought properly be construed as a request for review on her behalf, given the liberal requirements for such a request,[11] and the likelihood that Mr Clarke would have furnished written authority had he been informed to do so.
[11] Re: Frost and Secretary Department of Social Security [1995] AATA 228
I consider that the evidence before the Tribunal is that :
i.Ms Pitt last communicated herself with the Respondent on 22.2.2008[12];
ii.It was customary for Ms Pitt to comply with requirements of the Respondent as evidenced by activity recorded in T 23, being the Respondent’s mainframe records of contact;
iii.Mr Clarke informally had taken over Ms Pitt’s affairs by 25.8.2011;
iv.Dr Bertram, Ms Pitt’s General Practitioner reported that Ms Pitt suffered from dementia since 2008 and by her assessment in September 2011 (only 1 month after Mr Clarke’s email), Dr Bertram considered Ms Pitt unable to manage her affairs and have minimal or no short term recall and was unable to retain information for any time.
v.A Final Court of Protection Order was made, dated 27 February 2012.
[12] T23, page 85 of T Documents
The evidence referred to in paragraph 15 demonstrates that there was a likely significant deterioration in Ms Pitt’s mental capacity by early 2010 when the Notice and Questionnaire were received by Ms Pitt. Further, that her mental capacity mostly likely continued to deteriorate after early 2010. That being so, I am satisfied that Ms Pitt’s failure to comply with the Notice and Questionnaire was because of a reasonable excuse, namely her condition of dementia. In reaching this conclusion I have applied the principles expressed by the Federal Court in Secretary of Department of Employment and Workplace Relations v Real.[13]
[13] [2007] FCA 988
In view of the finding made that Ms Pitt had a reasonable excuse for not complying with the Notice and Questionnaire, I am also satisfied that subsection 64(1) ought not apply to her from any time after 27 January 2010, to make AP not payable.
The decision to cancel AP was made by the Respondent pursuant to section 80 or 81 of the SSA Act on 28 May 2010.[14] That decision was subject to section 85 of the SSA Act, which relevantly provides:
“If a person’s social security payment is cancelled under section 80; and the Secretary reconsiders the decision; and as a result of the reconsideration, the Secretary is satisfied, that, because of the decision, the person did not receive a social security payment that was payable to the person; the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.”
[14] T6 at page 19 of the T Documents
The decision to cancel AP was subject to reconsideration[15], but the decision to reconsider erroneously concluded that there was no reasonable excuse for non-compliance with the Notice and Questionnaire and therefore a decision was made to affirm cancellation of AP.
[15] T7, at page 39 to 42 of the T Documents
The correct and preferable decision pursuant to section 85 of the SSA Act, is that because Ms Pitt had a reasonable excuse for not complying with the Notice and Questionnaire, and that subsection 64(1) ought not apply to her from any time after 27 January 2010, AP was payable to her.
APPROPRIATE ORDERS
The AP should be reinstated and paid to the Estate of Ms Pitt from 25 August 2011 as that is the date of Mr Clarke’s email, which I have found constituted the request for a review on behalf of Ms Pitt. This arises by virtue of section 109(2) of the SSA Act, which precludes backdating the payment from earlier than the date of the request for review or reconsideration.
The rate of AP payable during the period noted in paragraph 21 must be according to the relevant statutory calculation. Until the applicant has complied with the notice sent to him dated 9 December 2013[16], the amount of arrears cannot be calculated and determined. I have no information before me that permits a conclusion about whether the applicant has complied with the notice.
[16] See T20 at page 53 of the T Documents
The Applicant contends that cancelling the AP and not reinstating it until 25 August 2011, constitutes discrimination of Ms Pitt due to her disability and is therefore not lawful. I reject this submission. The Respondent had no knowledge of Ms Pitt’s dementia and associated incapacity until 25 August 2011 at the earliest. All Notices sent to her, requirements of her or review rights attaching to decisions made and communicated by the Notices, were sent well prior to this date. Discrimination only arises if there is less favourable treatment due to a specified attribute.[17] Without knowledge of the specified attribute of disability, there cannot be less favourable treatment because of it.
[17] Section 5 of the Disability Discrimination Act 1992
The Applicant has also contended that the cancellation of AP and not reinstating it until 25 August 2011 is unlawful, as it constitutes a breach of natural justice. I also reject this submission. In the context of administrative decision making, the reasons of the High Court in Minister of State for Immigration & Ethnic Affairs v Teoh[18] are instructive and were followed in Plug; Department of Social Security [2000] AATA 744. From paragraph 44 the Tribunal held:
“44. There is no dispute that the common law will give content and meaning to the nature of procedural fairness required when statutory duties are prescribed in statute, even when the statute itself is silent on the matter. In Minister of State for Immigration & Ethnic Affairs v Teoh , at 291-292 for Mason CJ and Deane J, the principle was expressed as follows:
"[I]f a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course"
45. The difficulty with the doctrine in a case such as this is that the "expectation" asserted here is not related to the actual making of the decision but rather to the manner of its notification to the party affected. In Teoh the limits of the doctrine were expressed as being limited to a requirement to be fair. It is not a principle which creates substantial rights over and above those provided for in the statute concerned. So, in a case such as this, it does not operate to require a decision-maker to act in a particular way, for example, to give reasons for a decision or provide the information about the process of decision-making. In this case there was no positive decision taken to depart from the ordinary method of decision-making. In the course of making the decision a mistake was made and the calculation ultimately made was incorrect.”
[18] [1995] HCA 20
The application of these principles inevitably leads to the conclusion that as the Respondent was operating according to its normal, usual processes and decision making, there was no reason to consider whether it was appropriate to depart from the norm prior to receipt of Mr Clarke’s email. It cannot be said that Ms Pitt was denied natural justice.
CONCLUSION
The Application is dismissed and the decision under review affirmed.
I direct that the matter be remitted to the Respondent to give effect to this decision, including calculation of the arrears of AP payable.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member) ........................................................................
Administrative Assistant
Dated 19 August 2014
Date(s) of hearing 25 July 2014 Applicant Mr Hew Davies, Executor of the Estate of Ms
Emily PittSolicitors for the Respondent
Mr Brian Sparkes, Program Litigation and Review Branch
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