Gordon Smith and Secretary, Department of Social Services
[2014] AATA 444
•4 July 2014
[2014] AATA 444
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6854
Re
Gordon Smith
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 4 July 2014 Place Brisbane The Tribunal affirms the decision under review.
..........................Sgd..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Rejection of claim for age pension – Request for review more than 13 weeks after decision – Favourable decision to grant age pension – Start date calculated to be date of late request – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 23
Social Security (Administration) Act 1999 (Cth) ss 37, 107
REASONS FOR DECISION
Mr R G Kenny, Senior Member
4 July 2014
BACKGROUND
A claim for the age pension, dated 11 September 2012, by Gordon Smith
(“the applicant”) was rejected by Centrelink on 15 October 2012 on the basis that his and his wife’s income exceeded the allowable limit. The letter which so informed the applicant included an advice that, if he disagreed with the decision, he could seek review by Centrelink and that such request should be made within 13 weeks of being notified of the decision. The letter also advised that, if the request was made more than 13 weeks after notification and the decision is changed, the entitlement may only be paid from the date on which the review was requested. Centrelink records show that the first contact by the applicant about the decision was on 22 February 2013. As a result of new information provided to Centrelink about the applicant’s income, the decision was changed and the age pension was granted to him. Centrelink determined that the date of effect of the decision was 22 February 2013. That determination was affirmed by an authorised review officer on 23 April 2013 and, in turn, by the Social Security Appeals Tribunal on 22 November 2013.
ISSUES, LEGISLATION AND SUBMISSIONS
The applicant contends that the age pension should have been paid to him with effect from the date on which it was claimed. He understood that his accountant had contacted Centrelink with information about the applicant’s income within 13 weeks of being notified of the initial rejection of his claim. For the respondent, Mr Ashley Burgess submitted that there was no Centrelink record of any such contact before
22 February 2013 and that the decision under review ought be affirmed.
The issue for determination is whether the start date for payment of the age pension to the applicant predated 22 February 2013. Relevant to the determination are ss 37 and
107 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) which read:
37 Grant of claim
(1) Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a) the claimant is qualified for the social security payment; and
(b) the social security payment is payable.
107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment[1] or concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.
[1] A social security payment includes a social security pension which includes the age pension: see s 23(1) of the Social Security Act 1991 (Cth).
On 22 March 2013, Centrelink determined that the applicant was qualified for the age pension and that it was payable to him. The start date was determined under s 107(3) of the Administration Act. If the applicant’s contention is accepted, the date would be determined under s 107(1) of the Administration Act.
CONSIDERATION
Centrelink’s rejection of the applicant’s claim was based on an understanding that the applicant’s income included an amount referable to trust and company income of $110,948. This was incorrect. The applicant’s accountant provided the correct information to Centrelink and this resulted in the favourable decision to grant the age pension. The only reference in Centrelink’s files to the provision of that information was a file note dated 22 February 2013. It recorded a telephone conversation with the applicant in which reference is made to his income and advice to him that he should provide further information about his income.
The applicant referred to a letter, dated 20 November 2013, from his accountant advising that the income calculations for the months of October, November and December 2012 could not be finalised until January 2012. Another letter, dated 27 February 2013, written by the applicant to Centrelink advised that the accountant, at that time, had provided information about the applicant’s income only up to June 2012.
On the basis of those letters, I am satisfied that, even by 27 February 2013, the accountant had not provided the relevant 2012 information to Centrelink. That time frame of notification supports the respondent’s contention that there was no request by the applicant, prior to 22 February 2013, to have the rejection decision of
15 October 2012 reviewed. That date is well outside the 13 week period identified in
s 107(3) of the Administration Act. It follows that the start date for payment of the applicant’s age pension must be set in accordance with that provision. It was on that basis that the decision under review was made.DECISION
The decision under review is affirmed.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member..........................Sgd..........................................
Associate
Dated 4 July 2014
Date of hearing 23 June 2014 Advocate for the Applicant Peter Smith, Centenary Accounting Pty Ltd Advocate for the Respondent Rick McQuinlan, Department of Human Services
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