Hodges-Fong and Secretary, Department of Social Services (Social services second review) - [2022] AATA 3102

Hodges-Fong and Secretary, Department of Social Services (Social services second review) [2022] AATA 3102 (23 September 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8743
Re:Tricia Hodges-Fong
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date:23 September 2022
Place:Sydney

The reviewable decision is affirmed
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Mr S Evans, Member
Catchwords
Social Security – Age Pension - appeal from the Administrative Appeals Tribunal, Social Security and Child Support Division - accepted claims - whether earlier date of payment possible - section 107 - no appeal within 13 weeks – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Acts Interpretation Act 1901 (Cth)
Cases
Polydorou v Secretary, Department of Social Services [2014] FCA 1059
Maher v Secretary, Department of Social Services [2020] AATA 1416
Travers and Secretary, Department of Social Services [2020] AATA 5182
REASONS FOR DECISION
Mr S Evans, Member
23 September 2022
Introduction

Tricia Hodges-Fong (the Applicant) seeks review of a decision of the Secretary of the Department of Social Services (the Secretary) not to backdate a grant of age pension (AP). She maintains, and the Secretary accepts, that the rejection of her application was unreasonable. However, the Secretary contends that in order for her claim to be backdated, the Applicant was required to seek review of the decision within 13 weeks. The Applicant contends that she did not seek review of the decision earlier because she was unaware that a decision had been made. The Secretary contends that the Applicant was advised by post that her application had been refused. The Applicant claims not to have received the notification and seeks review by the Administrative Appeals Tribunal (the Tribunal).
background
The Applicant submitted a claim for AP on 11 April 2019 (the AP claim)[1]. Centrelink (the Agency) sent a letter to the Applicant requesting further information in relation to her claim on 31 July 2019. The correspondence stated that unless the information was provided within 14 days, the Applicant’s claim could be rejected.[2] On 13 August 2019 the Applicant responded by providing further information in support of her claim.[3]
[1] T4/100-110
[2] T8/148-150
[3] T10/167-171
On 24 August 2019 the Agency rejected the Applicant’s claim. The Agency sent the Applicant a letter confirming the decision to reject her claim because ‘we have not received a reply to the letter/s we sent you’ (the notification).[4] The notification was sent to the Applicant’s residential address in Warwick Farm, where the Applicant has resided for approximately 30 years.[5] The letter stated that if she disagreed with the decision, it was important to request a review within 13 weeks of being notified.[6] The Applicant claims not to have received the notification.
[4] T11/172
[5] T11/172
[6] T11/173
On 24 April 2020 the Applicant contacted the Agency regarding her claim for AP.[7] The Agency has recorded this contact as a request for a review of the decision to reject her application. The Applicant, having not received the notification, maintains she was not seeking review but seeking an update on the progress of her AP application. A customer service operator (CSO) record states in relation to the call:
claim unable to be reassessed as customer has not provided information as requested as per note on rejection [document]. Bank balances provided as of the 13.08.2019 not as of date of claim 11.4.2019. Information lodged for [superannuation] and the defined benefit is not as requested either again refer note to [rejection] document. Customer would need to do a new claim as outside 13 weeks of rejection of claim 24.8.2019.’[8]
[7] Annexure to Respondent’s Statement of Facts, Issues and Contentions
[8] Annexure to Respondent’s Statement of Facts, Issues and Contentions
Having been advised to make a new claim for AP, the Applicant did so 27 April 2020 (the second claim). The second claim was successful and the Applicant was granted AP from 27 April 2020.
Legislation
The relevant legislation is set out in the Social Security Act 1991 (Cth) (the Act), and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). The Tribunal also has regard to the Acts Interpretation Act 1901 (Cth) in interpreting the provisions of the Administration Act.
Procedural history of the Application
The Applicant sought internal review of the decision to reject her AP claim. An Authorised Review Officer (ARO) found that the Applicant had not provided the information ‘requested via a written notice on 31 July 2019’ and affirmed the 24 August 2019 decision to reject her application on 15 March 2021.[9]
[9] T23/283
The Secretary had rejected the Applicant’s claim for AP on the basis of section 64 of the Administration Act. Section 64 provides that if a person claims a social security payment and they are given notice of a requirement which they do not comply with, the payment the person has claimed may not be payable:
64 Effect of failing to comply with requirement to attend Department etc.
Person receiving, or claiming, social security payment
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
The Applicant sought review of the ARO’s decision at the Social Services and Child Support Division (AAT1) of the Tribunal. In a decision dated 7 October 2021, the AAT1 found that on 13 August 2019 the Applicant made a genuine attempt to provide the Agency all the information she understood was needed and consequently subsection 64(1) did not apply.
The AAT1 remitted the matter to the Agency with the direction that the first claim for AP be redetermined taking into account the additional information the Applicant provided on 13 August 2019. Should she be deemed eligible for AP, the AAT1 directed the Applicant be paid from 24 April 2020, the date on which she sought review of the decision.[10]
[10] T2/81
The Secretary maintains the Applicant did not provide all the information requested in August 2019. Absent from her response was the most recent superannuation statement for each of her superannuation funds, current statement or verification of all assets owned outside of Australia and superannuation investment statements with type and number of units. Nonetheless, the Secretary now ‘recognises that the Applicant did make a reasonable attempt to provide all the documentary evidence regarding her income and assets within the 14 days’[11] and accepts the AAT1 finding that the rejection of the Applicant’s claim was unreasonable.
[11] Respondent’s Statement of Facts, Issues and Contentions, [27]
It is relevant to note that the Applicant’s financial arrangements are not straightforward, particularly in relation to her asset holdings. The residence she shares with her ex-husband is owned by the Applicant through a loan financed by her sister.[12] The Applicant and her sister also jointly own an investment property in Sydney which the Applicant has valued at less than the 2017 purchase price. When she purchased the investment property, the Applicant borrowed $184,500 from her sister for which she is required to make annual repayments.[13] She owns an apartment in Singapore,[14] derives an income from her superannuation,[15] and has savings in bank accounts also belonging to her sister.[16]
[12] T7/144
[13] T18/246
[14] T17/217
[15] T19/259
[16] T16/199-203, 209-210
Nonetheless, having reconsidered the Applicant’s claim along with the (incomplete) additional supporting documents which had been provided, the Secretary determined that she was eligible for AP from the date of claim. Payment of her AP was subsequently backdated to 24 April 2020 and she was paid an additional three days AP.
Issues to be determined
The Applicant submits she is entitled to be paid AP from the date of her application on 11 April 2019.
The Secretary contends that whether the Applicant is entitled to be paid AP from the time she was eligible turns on notification of the 24 August 2019 decision to reject her application, which the Applicant claims not to have received.
Irrespective of whether the Applicant did or did not receive the notification, the Secretary maintains that the Applicant’s AP cannot be backdated as she did not seek review until 24 April 2020, which is more than 13 weeks after she was notified of the decision to reject her claim.
The issues to be determined by the Tribunal are:
·whether the Applicant was notified of the decision to reject her application for AP and if so when; and
·when the Applicant sought review of the decision to reject her application for AP; and
·from when the Applicant is entitled to be paid AP.
COnsideration
Was the Applicant notified of the decision to reject her AP application?
On 24 August 2019 the Applicant was sent correspondence by the Agency notifying her that her application had been rejected. During the hearing the Applicant was taken to a copy of the correspondence. She confirmed that the postal address was correct and that she had, prior to and subsequently, received mail by post from the Agency at the Warwick Farm address.
The Applicant argues, however, that the postal service is unreliable. In a written submission the Applicant speculates she may not have received the notification owing to it being delivered to the wrong address or other issues arising from an unreliable postal service.
There is no probative evidence to support the Applicant’s contention not to have received the notification before the Tribunal. However, in support of her contention, the Applicant has submitted into evidence a newspaper article from the Daily Telegraph dated 4 November 2021 reporting on a postal worker who claimed to be overworked during the COVID-19 pandemic and had consequently placed mail into the bin in order to save time.[17]
[17] Applicant’s Submissions lodged 18 November 2021, p 14
Section 237 of the Administration Act provides that if a notice of a decision is sent by prepaid post to the postal address of the person last known to the Agency, then 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. A similar provision can be found in section 29 of the Acts Interpretation Act 1901 (Cth).
The effect of section 237 is that even if the Applicant did not receive the notification dated 24 August 2019, she is deemed to have done so. Agency records confirm a decision was made to reject her application on 24 August 2019[18] and a copy of the letter notifying her of the decision which was generated and posted by the Agency appears in the Tribunal documents.[19] Consequently, the Secretary submits that the Applicant is deemed to have received the notification.
[18] T24/290
[19] T11/172
The Tribunal has considered the application of section 237 previously and found that notice is deemed to be given ‘provided the letter was correctly addressed and posted…even if the Tribunal were satisfied that the Applicant did not actually receive the notice’.[20]
[20] Maher v Secretary, Department of Social Services [2020] AATA 1416, [25]
Understandably, the Applicant takes issue with being deemed to have been given notification she maintains she did not receive. The consequences of section 237 for individuals deemed to have received notice of a decision they did not receive or were unaware of, and the underlying justification for this provision, were summarised by Mortimer J in Polydorou v Department of Social Services[21] who observed:
It is not difficult to understand the applicant’s bewilderment at the effect of a deeming provision such as s 237 of the Administration Act. Where continued access to social security payments depends on seeking review upon notification of an adverse decision, it is difficult for a person in the applicant’s position to understand how a legal fiction that he had notice of the adverse decision is allowed by the law to operate to his detriment. Nevertheless, that is what the Administration Act provides, for reasons no doubt related to consistent and predictable administration of the legislative scheme for social security payments.[22]
[21] [2014] FCA 1059
[22] Polydorou v Department of Social Services [2014] FCA 1059, [34]
For these reasons, I am satisfied that the Applicant was notified of the decision to reject her application for AP on 24 August 2019.
When did the Applicant seek review of the decision?
Though there is some disagreement regarding the purpose of the Applicant’s phone call on 24 April 2020, both parties agree that it was the first contact the Applicant had with the Agency after July 2019. The Applicant maintains that she was unaware her claim had been rejected and contacted the Agency to complain about the delay in processing her claim. The Secretary has recorded the contact as a request for review of the decision to reject her claim. It is accepted by both parties that during the call the Applicant was advised by a CSO to make a new application for AP, which she did on 27 April 2020.
The Applicant maintains that having provided additional documentation to the Agency on 13 August 2019, she then waited for her application to be processed until 24 April 2020. Even allowing for the complexity of her holdings, by any measure this is a considerable period of time to wait for the determination of an age pension application. The Applicant’s evidence is that she was initially content to provide the Agency a reasonable period in which to consider her claim and was subsequently unable to contact the Agency due to circumstances beyond her control.
The Applicant gave evidence of being anxious and depressed between October 2019 and February 2020. She told me her ex-husband, who she resides with, had been arrested. She also suffered from Winter Seasonal Affective Depression. The bushfires in late 2019 came perilously close to her home, which was affected by drought and she was then infected with COVID-19. In a submission dated 12 September 2021 she provides a detailed account of the reasons she delayed pursuing the application she thought was outstanding. She writes in part:
I am an efficient, effective [and] a responsible person [and] employee throughout my career path. There is no explanation/reasons as to why I kept silent [and] jeopardised my age pension [application]. It is an insult to my intellect.
…
I am [and] was suffering from anxiety, depression, stress [and] frustration in dealing [and] handling paperworks with Centrlink since 2015 (Disability pension claim) [and] of current pension claims…
…Since 13/8/19, I did not hear from Centrelink. I presumed Centrelink might be very busy esp. towards the end of the year [and] that I Had to wait again for months which I experienced earlier.
From Oct. 2019 – Feb. 2020, my mental health was badly affected by additional crisis of the drought, water rationing [and] bush fire catastrophie in NSW besides the permanent physical health issues that I am still enduring in my life.
The bush fire had spread to my neighbouring suburb [and] I was living in fear [and] anxiety during those months. The sky was burning hot red [and] the smoke pollution was unbearable.
During those few months, I had made many attempts to get through [to] Centrelink on the phone, but was unsuccessful.
…
During that period, I was very sick, weak [and] exhausted attending to any chores [and] simultaneously feeling the stress [and] anxiety not receiving any form of communication from Centrelink at all since 13/8/19.
On 24/4/20, I pressurzed myself [and] pick up the phone [and] lodged a complaint with the resolution Team.
I was told by an officer … that I did not reply to Centrelink’s letter dated 31/7/19 [and] therefore my application of 11/4/19 was rejected on 24/8/19./
I explained to the officer that I had replied to the letter of [31 July 2019] on 13/8/19 [and] had not received from Centrelink the decision made on 24/8/19.
I was so shocked, feeling helpless [and] emotionally upset to discover on 24/4/20 that my age pension claim… was rejected [and] that I had never received the decision of 24/8/19.
The officer was sympathetic … [and] advised to re-apply as soon as possible.
On 27/4/20, I lodged [and] submitted an online (Fresh Appln.)[23]
[Errors in original]
[23] Submissions of Applicant dated 12 September 2021, p2-4
Whilst there is no corroborative evidence to support the Applicant’s claims to have suffered as a consequence of bushfires or drought, she has provided documentary evidence in support of her claimed incapacity during this time. A medical report from Dr Farzana Quader at the Liverpool Family Medical Centre dated 19 November 2020 confirms that the Applicant previously had treatment for cancer from which she continues to experience side effects including body aches and pain. She also suffers from high blood pressure and leg, toe and back pain and previously received treatment for anxiety, depression and histrionic personality disorder.[24]
[24] T22/274
It was the Applicant’s evidence that in spite of her health and other challenges, she attempted to make contact with the Agency by telephone in November 2019. As she did not contact the Agency, there is no documented evidence of her having attempted to do so. I note also that the evidence she gave at the hearing was somewhat inconsistent with her written submission in which she claims to have ‘made many attempts’ over the course of a ‘few months’ to contact the Agency by telephone.
In any event, the Applicant maintains that after her November 2019 attempt to contact the Agency, she was unable to muster the wherewithal to initiate further enquiries until her successful contact on 24 April 2020.
I accept the Applicant’s contention that the purpose of her enquiry on 24 April 2020 was to seek an update on the progress of her claim or to lodge a complaint about the delay in processing her application. She was not seeking review of the decision to reject the claim which at that time she believed was still being considered by the Agency. The CSO notes from 24 April 2020 support the Applicant’s contention and provide no indication she sought review of the decision. Nonetheless, as she was informed the claim had been rejected during the call, and it being in the Applicant’s favour, I accept the Secretary’s submission that the enquiry served as an application for review of the decision to reject her claim.
From when is the Applicant eligible to be paid AP?
Having determined that the Applicant sought review of the decision to reject her AP claim on 24 April 2020, I now turn to considering from when she is eligible to be paid AP.
Regardless of the reasons for the delay, the Secretary argues that the application cannot be backdated beyond 24 April 2020 owing to the operation of section 107 of the Administration Act, which provides in part:
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment 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.

Having been deemed to have received the notice of the rejection of her application on 13 August 2019, the Applicant’s next contact with the Agency was on 24 April 2020. Given the Applicant does not contend she sought to appeal the decision any earlier than 24 April 2020, and certainly not within 13 weeks of being deemed to have received the decision, the operation of section 107(3) prohibits the backdating of her AP beyond 24 April 2020 – the date on which an application for review was made.
Conclusion
The Applicant contends that she was ‘shocked’ and ‘upset’ when she found out her claim for AP had been rejected. Whilst I accept that she may not have received notification her claim had been rejected, the reasons she has given for not approaching the Agency earlier do not, in my view, account for the delay in contacting the Agency regarding her application.
When she contacted the Agency in April 2020, a full year had passed since her application for AP, and it had been 8 months since she provided additional information to the Agency. Whilst the Secretary now accepts the decision to reject her application was unreasonable, and the decision to reject her application was incorrect, it is the case that the information provided by the Applicant was inadequate. Given the circumstances, in my view the Applicant must accept some responsibility for the unfavourable outcome.
Irrespective of the reasons for the delay, the outcome sought by the Applicant is that she be paid AP from the date on which she applied. Section 107 does not provide for such an outcome and there is no discretion in the application of section 107 that would allow the Tribunal to make an exception.
Similar circumstances were considered by SM Puplick in Travers and Secretary, Department of Social Services[25] who observed in relation to whether there was discretion to effect a favourable decision from an earlier date that:
Unfortunately for the Applicant, that is the way the legislation works and there is no discretion vested either in the original decision-maker, the ARO or indeed this Tribunal to disregard the provisions of the Act or the Administration Act, or to invent a mechanism to produce a result which is otherwise precluded by the legislation.
By the time that any Tribunal was in a position to review the original ARO decision, the only appeal that was actually on foot was that which accorded with the provisions of sections 107 and 109 of the Administration Act, namely the appeal of 17 February 2017. It follows that this is the earliest date upon which a favourable decision could be made in favour of the Applicant and such a decision was made in her favour. Even if the first DSP refusal were revisited and set aside, there is no statutory mechanism which would allow payments back to any of those relevant dates to be made. Hence it would be unproductive and possibly cruel to the Applicant to go back over that ground and the Tribunal declines to do so.[26]
[25] [2020] AATA 5182
[26] Travers and Secretary, Department of Social Services [2020] AATA 5182, [33]-[34]
Given the absence of discretion the earliest date from which the Applicant is eligible to be paid AP is 24 April 2020. It follows that the reviewable decision will be affirmed.
Decision
For the reasons stated above, the reviewable decision is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 23 September 2022

Date of hearing: 26 August 2022

Applicant: In person

Solicitor for the Respondent: Tim Chang

Date of hearing:	26 August 2022
Applicant:	In person
Solicitor for the Respondent:	Tim Chang