Estate of Thomas Biggin and Secretary, Department of Family and Community Services
[2000] AATA 125
•22 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 125
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/640
GENERAL ADMINISTRATIVE DIVISION )
Re ESTATE OF THOMAS BIGGIN
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date22 February 2000
PlaceSydney
Decision The Tribunal sets aside the decision under review, and in substitution therefor finds that the Applicant is: i) entitled to the payment of disability support pension from 7 March 1996; ii) entitled to arrears of payment of disability support pension for the period 21 March 1996 to 19 February 1998.
(Sgd) J D Campbell
..............................................
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – advice as to change of status to non home owner – error in computer input – cancellation of Disability Support Pension – notice of determination – adequacy of notice – non receipt of notice – failure to request review within three months
Construction of the Act – determination pursuant to the Act – error of law – non existence of a particular fact – perverse findings of fact – an unreasonable decision.
Social Security Act 1991, ss 11, 11(4), 113, 117, 133, 146, 146B, 1064, 1064(1)(b), 1064-A1, 1064-G1, 1064-G3, 1240, 1296, 1302, 1302A
Administrative Decisions (Judicial Review) Act 1977, s 5
Austin v Secretary, Department of Family and Community Services [1999] FCA 938
Re Secretary, Department of Social Security and Sting (1996) 39 ALD 721
Re McAllan and Secretary, Department of Social Security (1998) 51 ALD 792
Australian National University v Burns (1982) 43 ALR 25
Century Metals and Mining NL and Another v Yeomans and Another (1988) 85 ALR 29
REASONS FOR DECISION
Dr J D Campbell, Member
Mr T Biggin ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 10 March 1999, which affirmed the decision of an authorised review officer ("ARO") of the Secretary, Department of Family and Community Services ("the Respondent"), dated 29 October 1998. The ARO's decision in turn affirmed the decision of a delegate of the Respondent, dated 4 August 1998, to not pay arrears of disability support pension to the Applicant from 21 March 1996 to 19 February 1998.
The matter was heard by the Tribunal on 30 November 1999. The Applicant was represented by Ms C Ronalds of Counsel and the Respondent by Mr G Lozynsky, an advocate from the Administrative Law Section of Centrelink.
The Tribunal had the following written material placed in evidence:
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Applicant's Statements of Facts and Contentions dated 11 August 1999 Respondent's Statements of Facts and Contentions dated 31 August 1999 T1-T35 (P1-96) Exhibit A1 Exhibit R1
The issues before the Tribunal are:
i)Whether the determination of the Respondent, which led to cessation of the payment of disability support pension to the Applicant from 21 March 1996, was a determination made in accordance with the Social Security Act 1991;
ii)whether the notice of the determination, dated 14 March 1998, was deemed to be received or was received by the Applicant;
iii)whether the notice of 14 March 1998 was a valid notice issued in accordance with ss 146 or 146B of the Social Security Act 1991.
iv)Whether arrears of disability support pension should be paid to the Applicant from 21 March 1996 to 19 February 1998.
LEGISLATION
The relevant legislation in this matter is:
i)The Social Security Act 1991, ("the Act") and in particular sections 11, 11(4), 113, 117, 133, 146, 146B, 1064(1)(b), 1064-A1, 1064-G1, 1064-G3, 1240, 1296, 1302, 1302A;
ii)The Administrative Decisions (Judicial Review) Act 1977, (the "ADJR Act") and in particular section 5.
BACKGROUND
The Applicant suffered serious head injuries in a motor accident in the early seventies. His financial affairs have been managed by the Protective Office of New South Wales since 1975. In 1992, the Protective Office purchased a property in Queensland in which the Applicant and his elderly parents resided. Upon the death of his parents, the Applicant was assessed as requiring hostel accommodation, to which he moved on 14 March 1994. The Applicant's house was sold in October 1995.
On 16 January 1992 an application was completed by the Protective Commissioner, on behalf of the Applicant, for a disability support pension. This was received by the Respondent on 11 February 1992 (T3). An income and assets review form was completed on 27 February 1996 and received by the Respondent in early March 1996 (T4). In this assets and income review, the Applicant nominated at question 3 (p25) that he did not own a home. In response to question 5 (page 26), the Applicant nominated financial assets of $145,998 and $121,781 in two separate trust accounts.
In a letter dated 14 March 1996 the Respondent advised of cancellation of the Applicant's disability support pension from 7 March 1996, "…because the value of your assets is too high for you to get paid" (T5, p32).
The Applicant denies receiving the correspondence of 14 March 1996. The Applicant wrote to the Respondent on 20 February 1998, seeking a response to the Income and Assets review form of 27 February 1996, and in particular as to whether a pension had or had not been granted (T8). A follow up letter was forwarded by the Applicant to the Respondent on 23 July 1998 (T10). An acknowledgment of this letter was forwarded to the Applicant on 27 July 1998 (T11), with a decision being forwarded by the Respondent on 4 August 1998 (T12).
EVIDENCEIn this matter the Respondent acknowledged that the Applicant was not a homeowner at the time of the review and determination in March 1996. The Respondent stated that there had been an input error into the computer, resulting in records incorrectly displaying that the Applicant was a homeowner. The computer generated decision cancelling the Applicant's disability support pension from 7 March 1996 was a result of this input error.
SUBMISSIONSThe Applicant contends that the determination which led to the cancellation of disability support pension in early March 1996, was not a determination made in accordance with the Act. The Applicant contended that the steps involved in making a determination with regard to disability support pension and the rate thereof were clearly defined in the Act. More specifically, the Applicant contended that the Respondent in making such a determination, must demonstrate that the decision making process has followed the statutory procedural path nominated by the following sections of the Act:
1064(1)(b) Rate of disability support pension
1064 – A1 Module A Overall Rate Calculation Process
1064 – G1 Assets Test
11(1), 11(4) Definition of a homeowner
It is the Applicant's contention that the Respondent, in making the mistake of erroneously inputting the fact that the Applicant was a homeowner, has not made a decision in relation to the stated and mutually agreed facts of this matter, in that the correct facts have not been considered in the context of the statutory framework, necessary to make such a determination.
The Applicant further contends that the notice of 14 March 1996, if such a notice was received or deemed to have been received, was invalid. In the Applicant's opinion the notice did not contain significant, relevant and crucial information concerning the determination. This left the Applicant to draw an inference from the information provided as to the specific details of the asset calculation.
The Respondent submits that, while recognising a mistake was made in relation to the input of data into the computer, the resulting determination was made under the Act, and the Applicant did receive or was deemed to have received notice of this determination on 14 March 1996. The Applicant did not seek a review of this determination until his request for a review dated 20 February 1998 was received by the Respondent on 25 February 1998. Furthermore, the Respondent contends that the decision to commence the payment of disability support pension from 5 March 1998 was correct as the application for review by the Respondent had been made more than three months after the notice dated 14 March 1996 was.
The Respondent argued that the notice dated 14 March 1996 was a valid notice issued under the Act, and that within the notice there was sufficient relevant information as to the nature of the determination and particularly the reason why the rate had been varied. The notice stated that the pension would stop after 7 March 1996 because the value of assets was too high.
CONSIDERATION AND FINDINGSThe Tribunal observes that this matter is concerned with mistakes by both parties, and that a disabled individual's financial affairs have suffered a loss as a result of initial error by the Respondent and the failure of the Protective Office to dutifully carry out their responsibilities to the Applicant.
The Tribunal accepts the Respondent's admission that an officer of the Department incorrectly coded data concerning the Applicant into the computer. That this error resulted in the Applicant being considered to be a homeowner is not in question. It follows that the determination notified to the Applicant on 14 March 1996 was made with this erroneous material forming part of the decision making process. It has already been noted that the income and assets review form completed by the Protective Commissioner stated that the Applicant was not a homeowner and that his particular financial assets were held in two trust accounts.
The Tribunal has also noted that the Applicant denies having received the notice of 14 March 1996. The Tribunal observes that the Protective Commissioner did not seek a review of the outcome of the income and assets review of February 1996, until 20 February 1998 (T8). This was despite the cessation of pension payments after 12 March 1996, which was clearly demonstrated on the Statement of Account of the Applicant, held by the Office of Protective Commissioner (T31, p84). There was no reply by the Respondent to the request of 20 February 1998, with the Applicant again seeking a response on 23 July 1998 (T10). The Tribunal further notes the decision of the Respondent of 4 August 1998 (T12) not to backdate disability support pension to 7 March 1996. The reason given for this decision was that a review was not sought within three months of the issue of the notice of 14 March 1996, in accordance with section 146D(3) of the Act. The ARO affirmed that decision on 29 October 1998 (T26).
As a consequence of these considerations the Tribunal finds the following to be matters of fact:
a)The Protective Commissioner in completing the income and assets review on behalf of the Applicant on 27 February 1996 (T3) did state that the Applicant was not a homeowner and that his financial assets were held in two accounts.
b)The Respondent made a mistake when an officer of the department incorrectly coded the Applicant as a homeowner and as a consequence the computer provided a determination to cancel the Applicant's disability support pension from 7 March 1996.
c)The notice of this determination was forwarded to the Applicant on 14 March 1996. Further, the notice detailed that the disability support pension had been cancelled from 7 March 1996, "because the value of your assets is too high for you to get paid" (T5, p32).
d)The Applicant had constructive knowledge that the Applicant's disability support pension was cancelled. It is clear in the Officer of the Protective Commissioner's Statement of accounts for Thomas Biggin for the period 1 January 1996 to 11 January 1999, that after payment of a social security pension amount on 12 March 1996, no further payment was made until 23 September 1998. This and subsequent payments arose as a result of inquiry by the Applicant to the Respondent on 20 February 1998 (T8) and 23 July 1998 (T10).
THE ISSUES SURROUNDING THE DETERMINATION
Section 1064(1)(b) of the Act states that the rate of disability support pension is to be calculated in accordance with the Rate Calculation at the end of this section, with Module A of the Rate Calculation establishing the overall rate calculation process and the remaining modules providing for the calculation of the component amounts used in the overall rate calculation. Section 1064 – A1 defines the methodology to be used for calculation of the annual rate of pension. Step 9 states that there has to be an application of the Assets test using module G to work out the reduction for assets. Section 1064 – G1 details the methodology to be used to work out the effect of a person's assets on the person's maximum payment rate, with step 2 stating it is necessary to work out the person's asset value limit. Section 1064 – G3 states that a person's asset value limit is to be established using Table G.1. Column 3B of Table G1 defines the assets value limit for a non-homeowner. A homeowner is defined in section 11(1) as having the meaning given by subsection (4),
11(4) For the purposes of this Act
(a)a person who is not a member of a couple is a homeowner if:
(i)the person has a right or interest in the person's principal home; and
(ii)the person's right or interest in the home gives the person a reasonable security of tenure in the home; and
…
(c)a person (whether a member of a couple or not) is a homeowner if
(i)the person has sold the person's principle home not more than 12 moths previously; and
(ii)the person is likely to apply some or all of the proceeds of the sale in acquiring another residence that is to be the person's principal home.
In having established as a matter of fact that the Applicant was not a homeowner in accordance with the definition contained within section 11(4) of the Act; that this fact was made known to the Respondent by the Applicant; that this fact is acknowledged by the Respondent to have been known; and further that the Respondent concedes that the Applicant is not a homeowner, the Tribunal concludes that the Respondent has not calculated the Applicant's rate of disability support pension in accordance with the detailed statutory framework nominated in paragraph 19. More particularly the Tribunal finds that the Respondent, by treating the Applicant as a homeowner has invoked a situation where the Applicant's assets value limit has been incorrectly reached, by virtue of the misapplication of table G1, contained within section 1064 – G3.
The Tribunal notes the following sections of the Act:
113 Secretary to determine claim
The Secretary must in accordance with the Act, determine the claim.
…
146B Changes to payments by Computer
If:
(a)payment of a disability support pension to a person is based upon data in a computer; and
(b)the pension rate is increased or reduced, or the pension is cancelled or suspended, because of the operation of a computer program approved by the Secretary; and
(c)the program causes the change for a reason for which the Secretary could determine the change;
the change is taken to have been made because of a determination by the Secretary for that reason.
The Tribunal is of the opinion that the Secretary must determine the claim in accordance with the Act and that where, by virtue of the operation of an approved computer program, a change in the rate of a disability support pension occurs, such a change can only be considered to be a determination by the Secretary where the reason for the change is one for which the Secretary could determine.
Further the Tribunal notes that within the Principles of Administration nominated within section 1296 of the Act the Secretary, in administrating the Act, must have regard to:
…
(a)the desirability of achieving the following results:
…
(iii)the delivery of services under the Act in a fair, courteous, prompt and cost-efficient manner;
(iv)a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
…
The Tribunal, in considering the determination to cancel the Applicant's disability support pension from 7 March 1996, concludes that the entry of wrongly coded data into the computer resulted in the following outcomes:
a) the claim has not been determined in accordance with the Act in that:
(i)the claim was not determined in accordance with the stated and agreed facts, and indeed has been determined in the absence of evidence of a material fact (that the Applicant was not a homeowner);
(ii)That the statutory prescription for establishing the rate of pension payable has not been applied, with the proper application of table G1 contained within section 1064 – G3 not occurring;
b) that the reason that the computer program caused the cancellation (change of rate) was that the Applicant was coded as a homeowner as opposed to being a non-homeowner. On the facts of this matter this is not a reason for which the Secretary could determine such a change of rate, and hence any change cannot be taken to have been made, because of the application of non-existent material fact.
The Tribunal's attention was drawn to particular passages drawn from the full Federal Court decision in Australian National University v Burns (1982) 43 ALR 25, where Bowen CJ and Lockhart J stated at p31:
The difficulty in this present case does not lie in the definition of the expression, 'under an enactment'. We agree with Fox J who said in Evans v Friemann (1981) 35 ALR 428 at 436 …that the word 'under', in the context of the Judicial Review Act, connotes 'in pursuance of' or 'under the authority of'… The difficulty lies in the application of the expression to particular circumstances…
At p32:
The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent's contract of engagement...
The Tribunal's attention was also drawn to the decision in Century Metals and Mining NL and Another v Yeomans and another (1988) 85 ALR 29, where the French J dealt with what constitutes decisions and whether the decision was made under the Act.
There is no doubt, in the Tribunal's opinion that a decision was made (section 23(1) of the Act, section 3(3) of the Administrative Appeals Tribunal Act (1975)). The essential issue is whether the matter has been determined according to the Act. The Tribunal draws no added inference from the phrase "according to" and places it with other like phrases as "pursuant to" or "under" an Act. In turning to the essential test, that is the characterisation of the decision, the Tribunal notes that the decision made was one to change the rate of pension and that to arrive at this decision a particular statutory pathway had to be followed. In one step on this statutory pathway a conclusion that the Applicant was a homeowner was borne in the absence of any evidence to support such a finding. This incorrect fact when applied resulted in statutory error, when the fact of the Applicant being a homeowner was applied to table G1, which resulted in an erroneous asset value limit being established, which in turn led to the determination that the rate of pension be changed. It is the Tribunal's conclusion that the clear objective of this part of the Act was to precisely nominate the particular circumstances which must exist before the Secretary can exercise power to determine a pension rate calculation.
As a consequence of the particularity of the Statutory framework nominated in the Act for the calculation of a pension rate, and more importantly the nomination, definition and existence of such material facts as to whether the Applicant is a homeowner or not, the Tribunal finds that the Secretary has not, in this matter, made a decision according to the Act. It is the Tribunal's finding that the agreed and submitted material fact in this matter was that the Applicant was not a homeowner. In dealing with this claim, the Secretary has not dealt with this material fact in the particular circumstances nominated within section 1064 – G3, table G1. As such it is the Tribunal's finding that any decision that the Secretary has made is not a decision made according to the Act.
The Tribunal is also mindful that the decision taken is a decision made upon the finding of fact upon which there is no evidence, as opposed to a decision taken where findings of fact have excluded relevant evidence or wrongfully admitted irrelevant evidence. In this matter, the finding by the decision maker that the Applicant was a homeowner is at the very least a perverse finding of fact, irrespective of the computer input error being the cause, and this alone would constitute an unreasonable decision. A more balanced view in the Tribunal's opinion is that a decision was made that was dependent on the existence of a material fact (that the Applicant was a homeowner) and there is non-existence of this particular fact. If the Tribunal's finding that the decision was not made in accordance with the Act is not accepted, it is evident to the Tribunal that the decision is reviewable pursuant to section 5(1)(h) as particularised by section 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977. It is the Tribunal's view, that at best, any review involving a jurisdictional error of law would result in a finding that the original decision was void ab initio.
In relation to the aforesaid, the Tribunal notes that its power in relation to certain determinations is circumscribed. Section 1243A of the Act specifically states that in circumstances where a decision is found to have been determined in accordance with the Act and the Tribunal is mindful to set aside the determination to cancel the Applicant's disability support pension, the following provisions have effect:
…
(h) the second determination does not become void from the time when it was made(i) the mere setting aside of the first determination does not of itself revive the first determination.
…
In summary it is the Tribunal's finding that the determination of 7 March 1996 was not made in accordance with the Act, and as a consequence of a decision vacuum, the original decision existing prior to the February/ March 1996 review process continues to run. The Tribunal explored the limitations inherent within its powers pursuant to section 1243A of the Act and has concluded that if the decision taken was considered to have been determined according to the Act, any consequence of review for error of law by the Tribunal arising from either jurisdictional error or the perverseness or unreasonableness of the determination, under the Administrative Decisions (Judicial Review) Act 1977, will be limited and indeed frustrated by the workings of subsections 1243A(I)(h) & (i) of the Act, in that either voiding or setting aside the decision of 7 March 1996 does not assist the Tribunal in redressing the pre-existing adverse determination.
THE NOTICE ISSUEThe Tribunal notes that the Applicant has argued that the notice of the determination dated 14 March 1996 was not received. Section 1302A(1) details the circumstances in which notice of the decision is taken for the purposes of the Act to have been given to the person. This includes where a notice is sent by pre-paid post to the postal address of the person last known to the Secretary. Section 23(12) states that section 1302A applies even when the Secretary is satisfied that the person did not actually receive the notice. The Tribunal is satisfied that the evidence in this matter is sufficient to indicate that the notice of the decision of 7 March 1996, forwarded on the 14 March 1996, was and can be considered to be a notice given to the Applicant, if the decision of 7 March 1996 is considered to be a decision made according to the Act; that is the notice of 14 March 1996 is a valid notice in such circumstances, section 1302A(1) and 23(12) being applicable.
The Tribunal notes that the determination of 7 March 1996 was notified to the Applicant on 14 March 1996, sections 1302A(1) and 23(12) being the operative statutory sections. The Applicant's letter to the Respondent on 20 February 1998 was deemed appropriately to be an application for review of the decision of 7 March 1996, pursuant to section 1240 of the Act. Pursuant to this power of review, the decision was set aside and a new decision substituted whereby the Applicant was to be paid a disability support pension, with the date of effect being in accordance with section 146D of the Act. As the new determination was a more favourable determination and the application for review was sought after three months, the determination is said to take effect on the day on which the Applicant sought a review (Section 146D(3)), namely 20 February 1998.
In consideration of the issue that the determination of 7 March 1996 was not made in accordance with the Act, the Tribunal finds that any notice of such a determination is afflicted with the same difficulty, for in logic if there is not a determination in accordance with the Act, any notice pursuant to section 1302A must be deficient for there is no determination according to the Act to give notice to the Applicant.
In further consideration the Tribunal, having already noted the limitations inherent in section 1243A(1)(h) and (i) of the Act, acknowledges the circumstances in which the initial determination was made. If the decision was considered to be a determination made in accordance with the Act (a finding not made by the Tribunal), the Tribunal has already stated a view that such a decision is void or voidable, having been made in the absence of a material fact (so as to constitute a perverse or unreasonable decision). As the Tribunal is limited in its powers of redress in such situations, the Tribunal can only conclude that in the circumstances of this matter, a decision that involves error of law is a matter reserved for address by the Federal Court. This could also include matters as to the status of any notice issued as a result of a void or voidable decision.
The Tribunal, in addressing the issue of whether the notice of 14 March 1996 constituted a valid notice, notes the comments of Drummond J in Austin v Secretary, Department of Family and Community Services [1999] FCA 938, where he states:
…The giving of notice plays an important role in fixing the cut-off date for calculating payments determined under s 660G or s 660J to be necessary to redress unjust decision made in the past…
…I therefore consider that a communication will only constitute a good 'notice' of the earlier unjust decision for the purpose of s 660K(2) to (4) if it meets the following requirements. In the case of a decision correctable under s 660G it must be identifiable as a communication to the benefit recipient that a decision has been made to pay him or her Newstart Allowance at a particular rate. In the case of a decision correctable under s 660J, it must be a communication that a decision has been made to cancel or suspend the Newstart Allowance that was being paid to that person
…
In arriving at his decision in Austin, Drummond J decided not to follow earlier Tribunal decisions in Re Secretary, Department of Social Security and Sting (1996) 39 ALD 721 and Re McAllan and Secretary, Department of Social Security (1998) 51 ALD 792. In Austin (supra) Drummond J stated that Sting (supra):
…it is not correct in saying that advice that a particular amount is payable in respect of Newstart Allowance is necessarily advice of the rate at which that benefit is payable: that may or may not be the position. It will only be where the recipient is advised of payment of an amount that is the result of applying the Rate Calculator referred to in s1068 to his circumstances, without adjustments not provided for by that Calculator, that the advice will be capable of constituting 'notice' within s660K(2) to (3)…
In commenting on McAllan (supra), Drummond J concluded that the term "decision" does not include the reasons for the determination that constitutes such a "decision", and that accordingly:
…it is not necessary for any reasons for a decision to be notified to a benefit recipient before there can be notice given of that decision…
In considering the advice rendered to the Applicant on 14 March 1996, the Tribunal notes that the advice is addressed to the Applicant, and nominates cessation of disability support pension payments as from 7 March 1996. It further states that the payments have been ceased "because the value of your assets is too high for you to get paid" (T5, p32). Further the advice states that the decision has been taken under section 146B of the Act
In considering what necessary advice would constitute "notice" under section 146B, the Tribunal is of a view that such advice should address the Applicant or issues which in this matter should include:
Cancellation of Disability Support Pension
Effective date for cancellation
The reason for which the Secretary could determine the change.
In considering the advice given, the Tribunal finds that such advice does not constitute notice for the following reasons:
a) that such advice is not the result of applying the rate calculation referred to in section 1064 of the Act as applied to the particular circumstances of the Applicant, without adjustments not provided for by the rate calculation. In essence by virtue of the input error, the particular facts were not considered in the rate calculation process and accordingly the rate calculation was not applied properly.
b)The Secretary, in the Tribunal's opinion could only determine a change in accordance with the particular circumstances of the matter and the rate calculation process outlined in section 1064. The program caused a change for the reason of input error, which indeed resulted in the Applicant being treated as a homeowner, when he was not. The Tribunal in such reasoning concludes that any decision taken by the computer is a combination of a program responding to data input, for a program on its own accord will not process or provide a decision. Further the Tribunal, as mentioned earlier, is mindful that the Secretary has a responsibility pursuant to section 1296(a)(iv) of the Act to ensure that a process of monitoring delivery and evaluation of programs occurs. Despite a particular request by the Tribunal for the Respondent to detail particular quality assurance mechanisms to prevent and/or recognise such data input errors, no information was rendered.
c)The Tribunal notes that there must be a "reason" for which the Secretary could determine the change. In the advice of 14 March 1996 "the reason" nominated is that "the value of your assets is too high for you to get paid". Such advice, in the Tribunal's opinion
i)is generalised in nature, and refers to a step in the rate calculation process which allowed inferences to be drawn that may relate to either financial and/or home ownership or lack thereof.
ii)Fails to particularise and isolate the reason (home ownership) as the reasons for high value of assets.
iii)Lacks sufficient specificity to be misleading in that the specific reason remains undisclosed.
As a consequence of the Tribunal finding that the advice rendered on 14 March 1996 did not constitute notice in terms of section 146B of the Act, the Tribunal, having noted that the review of the decision was undertaken pursuant to section 1240 of the Act and that the resultant determination was more favourable than the previous decision, concludes that in the absence of notice, and pursuant to section 146D(4) of the Act, the operative date for the commencement of the favourable determination is the date on which the previous decision took effect, namely 7 March 1996.
In final comment, the Tribunal is aware that the Act is concerned with providing publicly funded benefits to those who apply and are entitled, with the necessary consequences that an appropriate balance exists in the statutory provisions to ensure that appropriate safeguards exist and are operative with regard to the proper functioning of the Act. It is the Tribunal's view that reliance by the Department upon a mistake of the nature that occurred in this matter to defend a position and shift the onus to the Applicant to identify such a mistake is not congruent with the objectives of the Act. The Tribunal, while recognising that mistakes are present in all matters of human endeavour, expresses concern for an Applicant, who by virtue of mistakes made by both the Respondent and the Protective Office (failure to follow up), has suffered a financial detriment up to this point in time.
DETERMINATIONThe Tribunal sets aside the decision under review, and in substitution therefor finds that the Applicant is:
entitled to the payment of disability support pension from 7 March 1996;
entitled to arrears of payment of disability support pension for the period 21 March 1996 to 19 February 1998.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 30 November 1999
Date of Decision 22 February 2000
Counsel for the Applicant Ms C Ronalds
Advocate for the Respondent Mr G Lozynsky
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