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

[2021] AATA 4174

Fry and Secretary, Department of Social Services (Social services second review) [2021] AATA 4174 (15 November 2021)

Division:GENERAL DIVISION

File Number:          2020/8534

Re:David Fry

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:15 November 2021

Place:Brisbane

The Reviewable Decision is set aside and substituted with a decision that the Applicant’s Age Pension should not have been suspended or cancelled from 25 September 2018 and as such the Applicant was entitled to receive the Age Pension at all material times

....................................[SGD]....................................

Member R Maguire

Catchwords

SOCIAL SECURITY – Age Pension – cancellation or suspension of pension – where Applicant is represented by appointed nominee – where nominee failed to provide information at departmental request – where department did not send notice of request to Applicant’s nominee – whether cancellation or suspension of pension is reasonable and proportionate – reviewable decision set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Guardianship and Administration Act 1993 (SA)
Social Security (Administration) Act 1999 (Cth)

Cases

Department of Social Security v Sevel & O’Connell [1992] FCA 854; (1992) 38 FCR 540
Fahmy and Secretary, Department of Social Services [2014] AATA 164

Gidaro v Department of Social Security [1998] FCA 400; (1998) 83 FCR 139

REASONS FOR DECISION

Member R Maguire

15 November 2021

BACKGROUND

1. Via his son, John, the Applicant is seeking the review of a decision of the Social Services and Child Support Division of this Tribunal (“AAT1”) on 17 November 2020 affirming a decision of an Authorised Review Officer[1] (“ARO”) of the Secretary of the Department of Social Services (“the Secretary”) who affirmed a decision to suspend the Applicant’s Age Pension from 25 September 2018, and a subsequent decision of 27 December 2018 to cancel his Age Pension from 25 September 2018.

   [1] Exhibit 1, T Documents, T15, pages 217-221.

2. The Applicant is aged 80 years, and first received the Age Pension on 31 January 2006.[2] He is in the advanced stages of Dementia, which he has suffered for a number of years, and on 13 January 2016 he was assessed as mentally incapacitated by the South Australian Civil and Administrative Tribunal. An order was made pursuant to s. 29 of the Guardianship and Administration Act 1993 (SA) that his son John be appointed as his limited guardian.[3] This order was made whilst the Applicant was in a secure wing of a hospital, having been detained against his will because he had been pulled over by police for driving on the wrong side of the road. John described his current state of health as “he’s under full care and yes, he’s pretty much a vegetable”.[4]

   [2] Exhibit 2, Secretary’s Statement of Facts, Issues, and Contentions (“SFIC”) dated 20 April 2021, [3].

   [3] Exhibit 1, T Document, T6, pages 97-99.

   [4] Transcript, page 3.

3. Centrelink records before the Tribunal are in varied, and at times minute fonts which render their computer printouts close to illegible. They refer to contacts from John as being both from “Customer” and “Nominee”, and this raises a broad concern about the accuracy of Centrelink’s records.

4. It appears that by 3 February 2016,[5] John had been appointed by Centrelink as the Applicant’s nominee for the purposes of his father’s dealings with Centrelink, although no instrument of his appointment under Division 2 of Part 3A of the Social Security (Administration) Act 1999 (“the Act”) was placed before the Tribunal. Centrelink was aware of the fact that the Applicant was in hospitalised age care no later than

   
   

   30 May 2018.[6]

   [5] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [4].

   [6] Exhibit 1, T Document, T13, page 143.

5. On 5 March 2018 Centrelink sent notices issued pursuant to s. 63(2)[7] of the Act to both the Applicant and John seeking updated information[8] regarding his income stream.[9] A response was required by 19 March 2018,[10] and was not forthcoming, resulting in the suspension of the Applicant’s Age Pension.

   [7] s. 63 is found in Subdivision A of Division 6 of Part 3 of the Act.

   [8] “a full copy of the current schedule for your income stream products”: Exhibit 2, Respondent’s Statement of Facts, Issues and Contetions, Attachment C.

   [9]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment C.

   [10] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Attachment C.

6. Non-compliance with the terms of the notices of 5 March 2018 enlivened the operation of

   
   

   s. 64 of the Act which provided that subject to the Secretary’s satisfaction on certain matters, payments were not payable to the Applicant.

7. On 30 May 2018, John called Centrelink and was informed his father’s pension had been suspended because the requested information had not been provided.[11] Centrelink’s records[12] also indicate that the actual Applicant had also phoned Centrelink the same day to explain that he was in aged care, had Dementia and his son was his nominee. John gave evidence before the Tribunal that his father could not have phoned Centrelink that day, as it was beyond his mental capacity.[13] The communication recorded as being from the Applicant appears to be a remarkably lucid and detailed communication to have been made by an old man with Dementia, and the Tribunal rejects the accuracy of Centrelink’s records in this regard and finds that this communication was from John, as he asserted in statements to the Tribunal. Centrelink nevertheless decided to restore the Applicant’s pension pursuant to s. 85 of the Act in consequence of this phone call.

   [11] Exhibit 1, T Documents, T13, page 142.

   [12] Exhibit 1, T Documents, T13, page 143.

   [13] Transcript, page 6, lines 40-45.

8. On 31 July 2018, and again on 28 August 2018, further notices[14] were sent to both the Applicant and John, but this time pursuant to s. 196[15] of the Act requesting the provision of information about the Applicant’s income stream within 21 days. The notices warned that in the event of failure to provide the information within the time specified “your payment may be stopped” [emphasis added]. These notices specifically requested information regarding the account balance as at 1 July 2018 of the Applicant’s Universal Super Scheme. Once again, and on each occasion, the information was not forthcoming within the prescribed time.

   [14] Exhibit 1, T Documents, T14, pages 165-176

   [15] s. 196 is found within Division 1 of Part 5 of the Act.

9. Twenty-eight days after the notice of 28 August 2018, in consequence of the non-provision of information, the Applicant’s Age Pension was suspended from 25 September 2018. Notices[16] of the suspension dated that date were sent to the Applicant and John and stated “Your Age Pension has been stopped because we did not receive a reply to the income stream letter we sent you”. Presumably this was a reference to the most recent letter of

   
   

   28 August 2018, but there was no reference to the statutory provision relied upon to affect the stoppage.

   [16] Exhibit 1, T Documents, T14, pages 181-184.

10. Centrelink records disclosed numerous details of communications by or on behalf of the Applicant during the month of October 2018, but did not record details of the substance of those communications.[17]

    [17] Exhibit 1, T Documents, page 222.

11. On 20 October 2018, Centrelink sent a further notice[18] under s. 63, but only to the Applicant,[19] not John, advising they had still not received information requested and specifically asking him to “Please provide a current income stream schedule for UNIVERSAL SUPER SCHEME”. The Secretary acknowledged that no corresponding copy of this correspondence was sent to John, who of course was the Applicant’s nominee, and neither did it inform the Applicant of the effect of s. 64 of the Act.[20] This letter was of no legal effect as it was not sent to the Applicant’s nominee.

    [18] Exhibit 1, T Documents, T14, pages 185-186.

    [19] Exhibit 1, T Documents, T14, page 185.

    [20] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [32].

12. On 27 December 2018, Centrelink wrote to both the Applicant and John, advising of cancellation of the Applicant’s Age Pension because “we did not receive a reply to the income stream review letter we sent you”. These letters, in their terms, were silent as to whether they were issued in reliance upon the notices issued pursuant to s. 63, or s. 196 of the Act.

13. Centrelink records of 5 June 2019[21] recorded contact from the “Customer’s Nominee” saying he “would like to appeal cancellation as he wasn’t aware his fathers (sic) pension ha dbeen (sic) cancelled as nominee had moved address and didnt (sic) receive the mail”. It also recorded that this communication was well outside 13 weeks after suspension on

    
    

    25 September 2018 and cancellation on 27 December 2018.

    [21] Exhibit 1, T Documents, T13, page 147.

14. The ARO reviewed the decisions made on:

    (a)25 September 2018 to suspend the Applicant’s Age Pension from 25 September 2018;

    (b)27 December 2018 to cancel the Applicant’s Age Pension from 25 September 2018;

    (c)8 May 2020 to grant the Applicant the Age Pension from 24 January 2020;

    and found that they were all correct.[22] This decision was expressed to rely upon the letters of 31 July 2018, and 28 August 2018 sent under s. 196 of the Act.

    [22] Exhibit 1, T Documents, T15 page 217.

15. The ARO’s decision of 21 July 2020, (which is addressed to the Applicant) states[23] that “you contacted Centrelink on 16 October 2018, 20 October 2018, and 23 October 2018.” It also states that on 10 December 2019, “your nominee” contacted Centrelink “regarding the cancellation of your aged pension.” John told AAT1 that all of the contacts of October 2018 must have been from him, as his father was incapable of doing so,[24] and the Tribunal accepts this evidence and so finds.

    [23] Exhibit 1, T Documents, T15, page 219.

    [24] Exhibit 1, T Documents, T2, page 4; see also Exhibit 1, T Documents, T1.

16. The ARO decision recorded that the Applicant had still not provided the information regarding the Universal Super Scheme. It also recorded that the Applicant lived in a nursing home, but recorded that there was “no evidence that your nominee was unable to submit their claim on the day they contacted because of circumstances such as hospitalisation, homelessness…”. The ARO decision did not expressly make a finding that the decision to suspend the pension was correct, but so much is implicit in their finding that the decision to cancel was correct, although it failed to state the operative statutory provision relied upon for either the suspension or the cancellation. The ARO further found that no further application for Age Pension was made before 24 January 2020, and that the decision to grant the pension from that date was correct.

17. The AAT1 Decision dated 17 November 2020 relevantly records:

    20John explained to the tribunal that he found it difficult acting as his father’s nominee. He became his father’s guardian after the sudden onset of Mr Fry’s Dementia. An order was made against Mr Fry’s wishes, after John felt obliged to testify, in his father’s presence, that he was not competent to manage his own affairs. John found this process highly distressing, and subsequently found it easy to not think about his father’s affairs, particularly in the midst of caring for his own children.

    21John also found it difficult to find the information Centrelink requested, as he was unfamiliar with both the social security system and his father’s financial arrangements. Although a MLC representative told John that his father’s superannuation account had been closed in 2016, MLC did not provide documentary evidence of this, even until now.

    22By the time Centrelink decided to cancel Mr Fry’s pension on 27 December 2018, it had been reasonably requesting information about his MLC superannuation account for over nine months, and had twice suspended his payments. Given the difficulties John was having with obtaining documents from MLC, Centrelink could have used its powers to obtain this information directly. However, there is no evidence to suggest that John relayed these difficulties to Centrelink so they could consider this course of action.

18. AAT1 implicitly relied upon the notice issued under s. 63 of the Act to find that “it was reasonable for Centrelink to apply subsection 64(1) and section 80” of the Act to “suspend and cancel” the Applicant’s pension.[25] It further found that even if those decisions were found to be incorrect, the earliest date from which the Applicant could be paid arrears would be 5 June 2019, as this was the date on which John requested a review.

    [25] Exhibit 1, T Documents, T2, [22].

19. Before this Tribunal, the Secretary did not rely on or defend the reasoning of AAT1, or the notice issued in reliance on s. 63 of the Act, but only on those issued in reliance on ss.192 and 196 of the Act, i.e. 31 July 2018, and 28 August 2018.

20. The Secretary’s Statement of Facts Issues and Contentions submitted[26] initially that the issue before the Tribunal was whether the Applicant’s Age Pension was properly cancelled with effect from 25 September 2018. The Secretary nevertheless contended that both the suspension and cancellation decisions were correct. Having regard to the terms of the decision of AAT1, the Tribunal considers that there are discrete issues as to whether the decision to suspend was correct, and further whether the subsequent decision to cancel was correct. A consideration of whether the decision to grant the Age Pension from 24 January 2020 was correct depends on the outcome of the first two issues, and for the totality of these reasons, this issue does not need to be decided.

    [26] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [2].

21. It was submitted[27] that the Secretary’s discretion to suspend or cancel under s. 81 of the Act was enlivened by non-compliance with the notices issued under s. 196(2) of the Act, and that the Secretary’s actions were “rational and proportionate” as no responses had been received, and that this accorded with Fahmy and Secretary, Department of Social Services [2014] AATA 164, per SM Redfern as the Deputy President then was.

    [27] Exhibit 1, T Documents, T2, [39]-[40].

22. It was further submitted[28] that there was no evidence that the Applicant had contacted Centrelink prior to 27 December 2018, which was 13 weeks after the suspension decision, and that in those circumstances the decision to cancel on 27 December 2018 was rational and proportionate.

    [28] Ibid, [41].

23. The SFIC then proceeded to discuss the issue of whether the Applicant’s Age Pension could be restarted at a date after 25 September 2018, and submitted that by operation of ss. 85 and 109(2) of the Act, and in consequence of Centrelink’s record of contact by John on 10 December 2019, this was the earliest date from which the Applicant’s Age Pension could be reinstated.

24. Importantly, the Secretary accepted[29] that as a result of information provided on 24 January 2020 and 8 May 2020, the Applicant has now complied with the 31 July 2018 and 28 August 2018 notice. At the hearing, the following exchange[30] took place between the Tribunal and Mr Summers:

    MEMBER: No, I’m sorry, you’re misunderstanding my question. My point is, had the material, which was subsequently provided, been provided at the time of the initial requests? There would’ve been no disturbance to the applicant’s pension entitlement, would there?

    MR SUMMERS: Yes, that’s correct. If those notices had been complied with and the requested material was provided, there would’ve been no suspension or cancellation. Because there would’ve been no need to exercise, or there would’ve been no enlivening of the power under section 81 to either make a suspension or cancellation decision.

    [29] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [46].

    [30] Transcript, page 11, lines 44 - page 12, line 6.

25. John’s statement[31] referred to telephone calls he had made to the Department on 16, 20, and 23 October 2018, which was within the 13 week period, but added that he could not recall the intent of those conversations due to the time that had passed. It was also stated that it could be fairly assumed that the calls were in relation to the suspension decision. Both the Applicant and the Tribunal invited Mr Summers to offer some alternative explanation for these calls, but none was offered. Relevantly, the Secretary acknowledged[32] that there had been a number of recorded Agency contacts at various dates, including in October 2018, but contended that there was insufficient documentary evidence to establish that the Applicant requested review of the suspension or cancellation decisions.

    [31] Exhibit 3, Applicant’s Statement, page 2.

    [32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [47].

26. Following the first day of the hearing, the Secretary delivered a further Statement of Facts Issues and Contentions dated 9 September 2021 which shall be referred to as SFIC 2.

27. SFIC 2 adhered to the arguments of Exhibit 2 which submitted that under s. 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) for the purposes of reviewing the decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who makes the decision and shall make a decision in writing either affirming the decision under review varying the decision under review or setting aside the decision under review and either making a decision in substitution or remitting the matter for further consideration. It was open to this Tribunal to make any decision which might’ve been made by the initial decision maker.

28. SFIC 2 also contended that the powers under s. 126 of the Act were conferred upon this Tribunal by virtue of s. 179 of the Act and s. 43(1) of the AAT Act.

29. At paragraphs 17-20, SFIC 2 cited the authorities relevant to what constitutes a request for review, and made a submission at paragraph 17:

    What constitutes a request for review?

    17In Evelyn Frost and Secretary, Department of Social Security [1995] AATA 228, Deputy President Breen commented at [9] to [11] that:

    “9.Mr Walsh submitted that the applicant's approach to the Department in December 1992 querying the first payment she had received and querying the method of its assessment was "merely a query as to rate of pension". As such, said Mr Walsh, it did not constitute a request for review.

    10.Presumably, Mr Walsh had instructions from superiors to place that view before the Tribunal as a submission going to the merits of the issues raised in the case and urging that the Tribunal should find that the applicant somehow forfeited her entitlements by failing to use the magic word "review". That is high-handed nonsense which totally ignores the scheme of the legislation. It reflects a Departmental attitude that is totally at odds with the attitude shown for many many years now by the Department of Veterans' Affairs. That Department treats, properly so in the view of the Administrative Appeals Tribunal, the most informal query as a request for review - that is, it does so if that is necessary in the particular circumstances of a case. If however, it is a matter calling only for correction of error, then correction is effected forthwith”.

    18In Secretary, Department of Social Services and Marsh (1996) AATA 10993, Deputy President Barnett commented at [14] that:[33]

    [33] (1996) 42 ALD 639.

    “In the Tribunal’s view, the Department has a mandate to deal with a wide cross section of the public, many of whom are socially and/or emotionally, intellectually or physically handicapped in some way. When a customer telephones the Department and expresses concern about specific matters relating to the calculation of pension entitlements, the Tribunal is prepared to apply a very broad definition of the term “application for review”. In the present case, Ms Marsh swore that she definitely was worried about the inclusion of bank interest payment as part of her total income. The Tribunal accepts her evidence and finds that she voiced this concern to the officer of the Tele-Service-Branch”.

    19In Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279, Member Kenny (as he then was) commented at [28] that:

    “Neither the Act nor the Administration Act make provision for the means by which an application for review of a decision is to be made. In order to constitute such an application, it is not necessary that a formal request be made or that the application be in writing. An inquiry about a decision has been treated as an application for review: see Frost and Secretary Department of Social Security (1995) AATA 10360 and Angel and Department of Family and Community Services [2001] AATA 292. For that to be done, the Tribunal would need to be satisfied that the substance of the decision was referred to in such an enquiry”.

    20In Lamotte and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 978, Senior Member Pascoe commented at [8] that:

    “While it is accepted that social security legislation is beneficial and should be construed generously and keeping in mind difficulties recipients can have with legislative provisions, there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe that it is incorrect”.

    21The above noted cases indicate that there are no ‘magic words’ required to request a review and that a range of contacts can fall within the broad definition of a request for review. However, both Ingram and Lamotte indicate that evidence a person expressed dissatisfaction with or considered that a decision was incorrect is required, as is the specific decision having been identified by the person during that contact.

1. As noted above, there is evidence (which the Tribunal finds credible and accepts) that John contacted Centrelink on 16 October 2018, 20 October 2018 and 23 October 2018. Centrelink has not recorded the reason for those contacts, and had recorded some of them as being from the Applicant personally rather than John, and has relied on its failure to record reasons for the contacts to submit that there is insufficient evidence of a request for review. On the first day of the hearing, the Tribunal put to Mr Summers that “fairly obviously he wasn’t phoning up to try and organise a golf game”, and that it could not see any other reason why John would have been calling the Department. Mr Summers was asked by the Tribunal to make submissions on that point,[34] and replied “Yes, I can arrange for that, Member”.

   [34] Transcript, page 18, lines 16-20.

2. On the second day of the hearing, Mr Summers had no instructions as to any other reason why John might have contacted Centrelink in October 2018:[35]

   MR SUMMERS: No. The applicant’s representative has submitted that he contends that there was no other reason for those contacts in October 2018.

   MEMBER: Yes.

   MR SUMMERS: Apart from seeking review of the suspension decision.

   MEMBER: Yes, and you haven’t offered me any other reason why he might have contacted?

   MR SUMMERS: No. I don’t have any instructions on that point.

   MEMBER: Yes.

   MR SUMMERS: And I haven’t been able to identify anything in the material to provide an explanation for that.

   [35] Transcript, page 25.

3. In these circumstances, the Tribunal finds that these contacts could only have been in relation to the suspension of his father’s Age Pension, and the Tribunal finds that the Applicant, via his nominee was requesting the review of the decision to suspend his Age Pension on 16 October 2018, and that this was well within the 13 weeks of 25 September 2018.

   CONSIDERATION

4. The initial decision to suspend the Applicant’s Age Pension on 25 September 2018 was made in reliance upon s. 81 of the Act which provides for a discretion to cancel or suspend a social security payment for non-compliance with certain notices:

   Cancellation or suspension for non‑compliance with certain notices

   1If:

   (a)a person who is receiving a social security payment (other than a jobseeker payment) has been given:

   (i)     a notice under section 67 or 68 that requires the person to give the Department a statement; or

   (ii)    a notice embodying a requirement under Division 1 of Part 5; and

   (b)the person does not comply with the requirement of the notice;

   the Secretary may determine that the social security payment is to be cancelled or suspended.

34.     S. 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

Meaning of may

(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

1. It is clear that the use of the word “may” in s. 81 of the Act establishes a discretion to cancel or suspend a social security payment.

2. In Gidaro v Department of Social Security [1998] FCA 400; (1998) 83 FCR 139, per Burchett J, the Federal Court discussed the exercise of the discretion whether to cancel or to suspend a social security payment in relation to former s. 78AA of the Social Security Act 1991 (Cth) [s 82], which authorised cancellation or suspension of pension for failure to obtain a comparable foreign payment. Burchett J said:

   Since s 78AA expressly distinguishes between cancellation and suspension, providing that the secretary “may determine” to take either step, and provides these measures, not only for the case where a pensioner has personally failed to take the required action, but also where the pensioner’s “partner” has so failed (see s 69A(2) and s 78AA(2)), there can be no doubt about the discretionary nature of the statutory power. It would, as an example, not necessarily be reasonable to exercise it in every case where a partner had failed, perhaps against the pensioner’s will, to respond to a notice. In this context, I think suspension is intended to be a genuinely lesser thing than cancellation, and that the secretary’s discretion extends to suspension for an appropriate period. If, for instance, the comparable foreign payment would be quite small in comparison with the age pension, it would be both absurd and wrong to cancel the pension or to suspend it indefinitely; a suspension for long enough to recoup the Commonwealth’s losses for a significant period would generally fulfil all the purposes of the legislation. The aged people at whom this legislation is directed are notoriously vulnerable. They may be suffering from disease or debility rendering it difficult for them to comply with even apparently straightforward requirements. (at 83 FCR 152-153)

   [Tribunal’s emphasis]

3. The decision to suspend the Applicant’s Age Pension was taken at a time when the Secretary did not have sufficient information to determine his continuing eligibility. The state of the Secretary’s knowledge had not changed at the date that the Age Pension was cancelled. The Secretary had no knowledge that the Applicant was ineligible for the Age Pension as at that date. The Secretary did not have sufficient information to determine that he was. The Tribunal does not have the benefit of having before it any contemporaneous reasons for either of these decisions.

4. The facts of this case are very much in line with those contemplated by Burchett J in Gidaro. The Applicant in this case, would have been “notoriously vulnerable” even if he had not suffered Dementia. The Applicant, personally did not have the mental capacity to be aware of, let alone respond to, the requests, and the Secretary knew this. Neither did he personally have the capacity to comprehend that a decision to suspend his pension had been taken, let alone take any steps to seek a review of the decision, and the Secretary knew this too.

5. The Secretary failed to take proper account of the fact that the Applicant personally was at all relevant times in extremis.

6. The Secretary knew that John, as nominee of the Applicant appointed by the Secretary, was not performing his role. It was open to the Secretary to remove him as nominee, and to install in his place someone who would perform that role. Alternatively, it was open to the Secretary to seek information directly from the source, of which the Secretary was aware.

7. This Tribunal finds it difficult to contemplate a person who might be more vulnerable than a hospitalised septuagenarian suffering from Dementia. The Tribunal accepts that John did not comply with the notices issued in reliance on s. 196 of the Act in a timely fashion. In fairness to him, he had no knowledge of his father’s financial affairs and had become guardian of his father’s affairs against his father’s will. His father was not forthcoming with information, and this placed him in a situation of particular difficulty. He had not been aware that his father had two pension accounts until he was advised by a Centrelink representative when making the application for his new pension. He expressed frustration at time-consuming dealings with Centrelink, and having to re-explain the circumstances on each occasion that he was able to establish contact. In consequence, the Applicant’s circumstances are very much analogous to those described in Gidaro.

8. The evidence shows, and the Secretary has conceded, in the light of information ultimately provided, that the Applicant has been at all relevant times eligible for the Age Pension. Given the Applicant’s age and Dementia, and the powers available to the Secretary which were referred to in AAT1, the Tribunal finds it far easier to characterise the treatment of the Applicant as “absurd and wrong” rather than “rational and proportionate”.

9. Even more so, the decision to actually proceed to cancel the Applicant’s Age Pension when there had been no material change in the Secretary’s state of knowledge is impossible to characterise as “rational and proportionate”, and appears to have been taken in consequence of the effluxion of time rather than for good reason.

10. The Applicant was very much the “meat in the sandwich” and appears to have been punished for his son’s non-compliance, which has now been cured.

11. The Full Federal Court in Department of Social Security v Sevel & O’Connell [1992] FCA 854; (1992) 38 FCR 540 strongly expressed its opinion as to how the Act should be administered:

    Although guardians of children could forfeit their entitlement to family allowance under some circumstances, in theory this always was (and, in practice, usually was) a disadvantage to the child. Given the evident Parliamentary intention to protect the interests of dependent children, an interpretation of the Act leading to a loss of allowance by qualified people should be adopted only in the clearest of cases. (at 38 FCR 546)

    [Emphasis added]

12. The Act must be administered in a manner which gives effect to it, not one which defeats it.

13. In the present case, as it turned out in retrospect, the Applicant had continued to be qualified to receive the Age Pension throughout the period of suspension and cancellation.

14. For all of the reasons set out above, the Tribunal sets aside the decision of AAT1 affirming the decision of the ARO, and in its place substitutes a decision that payment of the Applicant’s Age Pension was not correctly suspended on 25 September 2018, and neither was it correctly cancelled on 27 December 2018 with effect from 25 September 2018. It follows that the Applicant has been entitled to payment of the Age Pension at all times from and including 25 September 2018. It follows that it should not have been necessary for the Applicant to re-apply for the Age Pension as he did on 24 January 2020. As such, the Applicant was eligible to be paid the Age Pension from 25 September 2018.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.....................................[SGD]...................................

Associate

Dated: 15 November 2021

Dates of hearing:	16 August 2021 and 23 September 2021
Date final submissions received:	09 September 2021
Advocate for the Applicant:	Mr J Fry
Solicitors for the Respondent:	Mr A Summers, Services Australia