Francis and Secretary, Department of Social Services (Social services second review)

[2015] AATA 784

Francis and Secretary, Department of Social Services (Social services second review) [2015] AATA 784 (9 October 2015)

Division	GENERAL DIVISION
File Number	2015/3943
Re	Man Greg Francis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean
Date	9 October 2015
Place	Melbourne

Decision set aside. Applicant is to be paid DSP for the period 4 October 2014 to 17 November 2014.

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

Dr Damien Cremean

SOCIAL SECURITY - Disability Support Pension - suspension of payments – delay - whether applicant in custody--- pending trial.

Legislation

Acts Interpretation Act 1901 (Cth) section 29(1)

Administrative Appeals Tribunal Act 1975 (Cth) section 43(6)
Mental Health (Forensic Provisions) Act 1990 NSW section 33(1) (b)
Social Security Act 1991 (Cth) sections 23 (5),1158(a)

Social Security (Administration) Act 1999 (Cth) sections 3(3). 147, item 8, (formerly and at time of initial decision 152(4), 237

REASONS FOR DECISION

Dr Damien Cremean

9 October 2015

1. The Applicant seeks review of the decision of the AAT (Social Services and Child Support Division) made on 3 July 2015.  The decision of 3 July 2015 affirmed a decision made on 6 January 2015 by a Centrelink Authorised Review Officer (ARO) to suspend Disability Support Pension (DSP) from 4 October 2014 to 16 November 2014 on the ground that pension was not payable to him during a period while he was in gaol.

2. The Applicant says in his application: In all reviews no one has ever contacted me to receive evidence I have to put forward to this claim. He says: I was unable to attend the last review as I was detained in a mental intution [sic] thus unable to go to the tribunal. He also says: without anyone looking at the evidence I have on paper the tribunal decision remains wrong. The law has not been applied correctly.

3. At the hearing the Applicant, who was self-represented, gave evidence in person. Mr Hester (of the Department of Human Services) for the Respondent made submissions by telephone. The Applicant provided a number of documents to the Tribunal which were all informative. Many however, were already in the bundle of documents lodged by the Respondent under section 37 (1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (the T-Documents).

4. By s 1158 of the Social Security Act 1991(Cth) an instalment of a social security pension is not payable to a person in respect of a day on which the person is:

   (a)in gaol; or

   (b)undergoing psychiatric confinement because the person has been charged with an offence.

5. The expression in gaol in section 1158(a) is defined in section 23(5) of that Act as being when a person:

   (a)is being lawfully detained (in prison or elsewhere)while under sentence for conviction of an offence and not on release on parole or licence; or

   (b)is undergoing a period of custody pending trial or sentencing for an offence.

6. The Respondent’s submission is that information provided by the New South Wales Justice Corrective Services indicates that [the Applicant] was undergoing a period of custody for an offence pending trial and that he was not in psychiatric confinement. Consequently, the Respondent argues, the Applicant was in gaol for the purposes of section 23(5)(b) of the Act.

7. The Respondent raises also a prior issue—that of delay. The argument is that the Applicant had 13 weeks from 6 January 2015, that is until the  10 April 2015 to lodge his application  but his application was filed on 28 May and thus outside the 13 week period.

8. This second argument brings in item 8 of section 147 of the Social Security (Administration) Act1999(Cth) which the Respondent submits has this effect:

   that a favourable decision can have no operative effect as [the Applicant] was in receipt of disability support pension on 28 May 2015 .

   This in turn raises questions of the proper service of notice of the ARO decision.

9. I am not in any doubt that the Applicant was in receipt of DSP on 28 May 2015. I agree with the Respondent that that date is more than 13 weeks after the date of the ARO decision. Whether the applicant was properly notified of the decision under social security law however is another matter. The difficulty as I see it is whether item 8 applies to the Applicant

10. By section 43(6)of the AAT Act a decision:

    of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person

    is for all purposes (except as specified) deemed to be a decision of that person and comes into effect (unless otherwise ordered) on and from the day on which the decision under review had effect.  That provision is modified by item 8 to make the decision under review take effect on the day a person applied for AAT first review of the decision.  These provisions appear to mean that the decision of the ARO which was affirmed in the AAT first review decision of 3 July 2015 is deemed by section 43(6) to have had effect on 6 January 2015. However, by item 8, as I read it, that decision now takes effect on 28 May 2015, being the date when the application was made to review the ARO’s decision

11. If I follow the argument correctly (and it was at times difficult to hear Mr Hester), this has the effect of denying the Applicant a right to recover arrears of his DSP. And that is because of the delay in that, under item 8, he applied (so it is argued) more than 13 weeks after the ARO decision of 6 January 2015.

12. I am not satisfied that the Applicant’s case comes within the terms of item 8. That item specifies it applies if (a) the person is given written notice of the decision [in question] under the social security law .The decision means the decision under review.  In my view the Applicant has not been given written notice of the ARO decision of 6 January 2015 under social security law. The expression social security law includes the 1991 Act. See section 3(3) of the 1999 Act.

    Section 237 of the 1991 Act sets out the requirement for notice of decisions as follows:

    (1)If notice of a decision under the social security law is:

    (a)delivered to a person personally; or

    (b)left at 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

    Section 29(1) of the Acts Interpretation Act 1901(Cth) must be read alongside section 237. It provides :

    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.

13. I am of the view that there has been no written notice of the ARO decision given to the Applicant within item 8 for the reason that, if notice of the decision was given, it was not notice under social security law complying with section 237.

14. There is no question that notice of the decision was not given to the Applicant by being delivered to him personally; so section 237(1)(a) does not apply. Nor does section 237(1)(b) apply because no notice of the decision was left for him at his place of residence or business. But neither do I regard notice of it as having  been sent by prepaid post to the postal address of the Applicant last known to the Secretary,  under section 237(1)(c). The letter with the decision was addressed to the Applicant:

    Man Greg Francis Living in Body C/o MELBOURNE VIC 3000.

    I do not regard this as a postal address.  I regard that as a locale but not a location.  It gives no address as such to which to send or deliver mail. On 23 December 2014 the internal record of the Respondent (T-Document 30 of 42) indicates even that the address on records is specifically LIVING IN BODY C/O MELBOURNE VIC 3000 AUSTRALIA. I do not regard that either as a postal address.  This is curious.  If I go back even further in the T-Documents to the Applicant’s Claim for Crisis Payment dated 20 November 2014 - less than a month earlier - to an actual postal address last known to the Secretary, it is stated as C/O ST ANDREWS Post Office, Vic 3761.  But this is not the address to which the notice of decision was sent.  So, in my view, there has been no compliance with section 237(1) in the sending of that notice.

15. I am not satisfied, either, that there has been compliance with section 237(2).  I do not consider that the letter of 6 January 2015 was properly addressed in being sent to Man Greg Francis   Living in Body C/o MELBOURNE VIC 3000.  Again, I do not regard that as a postal address in order for it to be properly addressed. Because of the way the letter is addressed, there is nothing for section 237(3) to operate on in that it is not a letter capable of being delivered in the ordinary course of post. For example, I might ask where would it be dropped off or left? I should add that that provision makes it very clear that properly addressing a letter as mentioned in section 237(2) is obviously a reference to a letter having a postal address. And I regard section 29(1) of the Acts Interpretation Act as using the same expression in the same light. In my view, the letter of 6 January 2015 was not properly addressed, as it was not sent to a postal address.  It is quite apparent in my view that to be properly addressed a postal address, one where mail may be dropped off or left, must appear.

16. In any event, I am left in doubt that any letter containing the ARO decision of 6 January was ever sent to the Applicant before about 20 May 2015. Another internal record of the Respondent (T-Document 28 of 42) records that the Applicant contacted the ARO on that date saying he only just received the letter i.e. the 6 January 2015 letter. This is consistent with a Centrelink document, date stamped 25 February 2015 and handed up at the hearing, recording a staff member, Teresa, saying:

    Man is passing through Broken Hill and wanted to know what was going on with his appeal which shows has been affirmed. He states that he has not received any letters in regards to his appeal.  I have looked at his screen and I can’t see any letters there.  Could you please sent out a Duplicate of letter sent to C/- Post Office St Andrews Vic 3761.  Man would like to take appeal to the social security appeal tribunal. Thanks.

    If this is right, and the Applicant did not receive notice of the decision until about 20 May 2015 then his application made on 28 May is well within time and this is yet another ground for saying item 8 of section 147 of the 1999 Act does not apply to him because he will then have applied within and not after the 13 weeks of being given notice of the decision.

17. In any event, I am satisfied that the letter of 6 January 2015 was not sent in accordance with s 237 of the 1991 Act and so no presumption can arise in favour of the Respondent. That being so, I am satisfied that notice of the decision set out in that letter was not given under social security law as mentioned in item 8. That means that it cannot be said that item 8 has operative effect, by reason of him being in receipt of DSP on 28 May 2015, to prevent the Applicant from having the Tribunal review the decision given in his case.  I reject that submission of the Respondent accordingly.

18. I therefore return to the question whether section 1158(a) of the 1991 Act applies to the Applicant, so as to prevent him from being able to claim DSP suspended from 4 October to 16 November 2014 on account of him being in gaol. Considering the definition of that expression in section 23(5) I am not satisfied that the Applicant was in gaol during that period.  The Respondent’s submission is that during that period he was undergoing a period of custody pending trial within section 23(5)(b).

19. I am not satisfied that this is so. I agree that during the period in question the Applicant was undergoing custody but I am not satisfied that it was pending trial. A trial may have eventuated or it may not have done so. The Supplementary T-document (ST1) attached to the Respondent’s Statement of Facts and Contentions (dated 7 August 2015) is by the Department of Justice Corrective Services and states that the Applicant:

    .. came into CSNSW custody on remand on 3/10/14. On 17/11/14 he appeared at Lismore LC where he received an order pursuant to s 33(1)(b) MH(FP) Act 1990.  The order directed that he be taken to and detained in Cumberland Hospital to undergo a mental health assessment. If he was found to be mentally ill he was to be detained in the MHF however, if he was found not to be a mentally ill person he was to be brought back before a magistrate.”

    It then goes on to say the Applicant:

    was released from CSNSW custody on 17/11 and did not return so it is assumed

    that he was found to be mentally ill and detained at Cumberland.  

20. The Applicant had been facing serious charges including:

    common assault; stalk/intimidate intend fear physical etc harm(domestic); stalk/intimidate intend fear physical etc harm (personal) threaten to destroy or damage another person’s property; and resist or hinder police officer in the execution of duty.

    It was in respect of these offences that he received the order under section 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) which relates to mentally ill persons.

21. In my view it is plain that during the period in question it was not established that the Applicant would ever face trial. No trial date, as opposed to an administrative listing date, was ever fixed. Indeed the Respondent at the hearing (as I recall) even stated that it was only on 17 November 2014 that it was known whether a trial was pending or not.  If this is so, and I agree with that view, then it does not seem possible to maintain a view that at the same time before that date the Applicant, although in custody, was in custody pending trial. In reality, it seems to me that during the relevant period the Applicant was in custody pending assessment.  The purpose of the assessment was to determine whether the Applicant was fit to stand trial.  

22. But if that had to be determined first, before the Applicant was sent for trial, then his position in custody was a contingent one in terms of whether a trial might take place or not. But in that event, trial was not in any sense pending and as it happens it was determined on 17 November 2014 that he was mentally ill and found not fit to stand trial.  But that cannot mean that while he was in custody from 3 October he was pending trial.  No such thing in my view was the case.  It was not determined during custody whether he was fit to stand trial or not and hence his period in custody was not pending trial and the use of the notion of remand—of remanding him in custody—makes no difference to this analysis. Taking that view, I do not find it necessary to deal with the question whether the Applicant was lawfully detained under section 23 (5) (a) of the 1999 Act; although I note his argument that he has never been convicted of the offences he was charged with (which indeed have not been pursued) and that the presumption of innocence is protected by Australia’s Constitution. Therefore, I reject the Respondent’s submission that the Applicant was in custody pending trial.

23. It follows that the decision under review must be set aside.  The Applicant is entitled to the DSP suspended for the period in question.  

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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

Administrative Assistant

Dated   9 October 2015

Date of hearing	22 September 2015
Applicant	In person
Advocate for the Respondent	Mark Hester
Solicitors for the Respondent	Department of Veterans' Affairs