Harry Mann and Secretary, Department of Social Services
[2014] AATA 450
•4 July 2014
[2014] AATA 450
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4054
Re
Harry Mann
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 26 June 2014 Date of written reasons 4 July 2014 Place Adelaide For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
........................................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - age pension - sale of property to son at below market value - assessment of disposal amount - income above allowable limit for age pension - cancellation of age pension - decision under review affirmed.
LEGISLATION
Social Security Act 1991, ss 1077, 1123, 1126AC, 1126AD
REASONS FOR DECISION
Senior Member R W Dunne
4 July 2014
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal furnish to him a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Merrill Corporation. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The said transcript is annexed hereunto and furnished to the respondent and to the applicant as it is the reason for the Tribunal’s decision.
I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ......................[Sgd]..................................................
Administrative Assistant
Dated 4 July 2014
Date(s) of hearing 26 June 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services EXTRACT OF TRANSCRIPT PROCEEDINGS
…
MR VISSER: Sir, I understand that Mr Mann is going to - intends to pursue a Compensation for Detriment Caused by Defective Administration claim.
SENIOR MEMBER: Is that correct, Mr Mann?
MR MANN: Well, no, I've never said that. That was said - now, wait a moment, before you go on I went to the civil rights to ask them for advice.
SENIOR MEMBER: Welfare Rights?
MR MANN: Yes, Welfare Rights, sorry, to ask them for advice and they said that they would look in to the matter for me.
SENIOR MEMBER: Yes.
MR MANN: And they represented me, and it was them that brought up and said about the compensation. I didn't know anything about the compensation. So actually it's not me that put in for compensation; they did it on my behalf apparently. I don't know anything about this compensation. I did have a letter from the department stating that they could not consider compensation until we'd been through the Tribunal.
SENIOR MEMBER: Yes, and that's the normal - - -
MR MANN: So I don't know whether they're going to consider compensation or not. I don't think they will.
SENIOR MEMBER: Who won't?
MR MANN: Well, the department.
SENIOR MEMBER: Mr Visser, perhaps you could explain.
MR VISSER: Yes, and as outlined in the statement from the applicant's former representative, the Social Security Appeals Tribunal, a compensation claim has been lodged.
SENIOR MEMBER: Who organised that? Margaret Riley, Ms Riley?
MR VISSER: Yes, Ms Riley did do that.
SENIOR MEMBER: And you weren't aware that she had done that?
MR MANN: I was aware that she spoke about it.
SENIOR MEMBER: No, you weren't aware that she made the application?
MR MANN: No, I'm not aware of that.
SENIOR MEMBER: Thank you.
MR VISSER: In the statement it says:
Mr Mann had hoped to have this matter resolved by CDDA.
SENIOR MEMBER: Yes, and that's coming from Ms Riley?
MR VISSER: Ms Riley, yes.
MR MANN: She was representing me so I suppose what she said they apparently think, well, I went along with it.
SENIOR MEMBER: Yes, she was your agent, wasn't she?
MR MANN: Well, at that time. She was acting for me and I allowed her to do that. In the beginning I only went to her, and went to the Welfare Rights for advice; not for them to help me. They said, "Well, do you mind if we represent you?" At that time they represented me, and then they dropped the representation.
SENIOR MEMBER: She did quite a lot for you, didn't she - Ms Riley?
MR MANN: Well, she helped quite a lot, yes.
SENIOR MEMBER: She lodged statements of facts, issues and contentions - quite a lot of documents she lodged for you over an extensive period.
MR MANN: Yes, I've got no complaint about them.
SENIOR MEMBER: She was your representative, and you accepted what she was doing.
MR MANN: At that time I did, yes.
SENIOR MEMBER: Don't you accept that she has made an application to CDDA? Don't you accept she has done that?
MR MANN: I accept that she's done that now, yes. But I didn't make the application.
SENIOR MEMBER: No, Ms Riley did.
MR MANN: Yes, on my behalf.
MR VISSER: Yes, sir, and we would say that that is the right mechanism to determine whether Mr Mann has lost out because of defective administration. That compensation claim will look at all of those issues, and that claim will begin looking at all of those after this administrative process has finished. So if Mr Mann is right - and we're not saying that he is - that the CDDA assessment officer will be looking at all those issues. But we say that this is not the correct forum to pay compensation.
SENIOR MEMBER: Yes. The only compensation I could do would be to allow your application for review; allow it, and say you are entitled to the pension. But, on the basis of the information I've got, you're not. You might say "I should have been allowed because I should have been able to claim the $10,000 from other sources over two or three years, or whatever the period was. If I had been allowed that I would have reduced my assets down and I would have been entitled to the pension." I accept all that. But I don't have the power to go beyond what the law says and what the facts are as presented to me. You told me about the letter from the department. That is most unfortunate for you - most unfortunate - but I can't - - -
MR MANN: Yes, a lot of things seem to be unfortunate for me and I'm losing out all the time.
SENIOR MEMBER: I don't have the power in this Tribunal to be able to rectify what has happened. An application has been made to the requisite authority. Where are we at with that? Have you got any idea?
MR VISSER: The CDDA claim?
SENIOR MEMBER: Yes.
MR VISSER: It has been put on hold pending the outcome of this administrative process.
SENIOR MEMBER: So that won't be dealt with until this process is finished.
MR VISSER: Yes.
SENIOR MEMBER: Based on that, do you have anything further that you would like to say, Mr Mann? On the basis at the moment I've got facts, I've got the Social Security Appeals Tribunal decision which is against you when that decision was based on the decision of the authorised review officer, I've looked at the all details and the authorised review officer's figures; they appear correct to me. Admittedly, they don't take in to account what you would like to have done - gifted $10,000 from other sources to your son. I've got to take into account what did happen.
As the Social Security Appeals Tribunal said they don't have the jurisdiction to make a decision about "what if" - a "what if" scenario - which is how the Member has described it. On the basis of the information I've got I have to affirm the decision of the Social Security Appeals Tribunal in the hope that the CDDA application will proceed and there will be compensation coming to you. I don't know how they justify it or how they work out the compensation; if they work out what your loss has been over the period and say you have lost or missed out on $2,000, for example, therefore your compensation is $2,000 and you're paid $2,000. I don't know how it works out, but I would recommend that the matter does proceed to the CDDA.
My decision will be that I must affirm the decision of the Social Security Appeals Tribunal and therefore your application for review won't be successful.
MR MANN: Well, I would like it to be noted that I don't agree with what has been decided today.
SENIOR MEMBER: Very well. I will make a note of that on my file. This is being recorded. What I do in cases like this where there is, in effect, an oral decision I send a copy of my oral decision. There will be a transcript of the hearing today.
MR MANN: I will get a copy of that?
SENIOR MEMBER: You will get a copy of the extract of the transcript. The transcript will be running for 35 minutes, but the relevant part of the transcript I'll get a copy of that to you so you will see what I have said, all right?
MR MANN: Sure.
…
0
0
1