Holik and Secretary, Department of Family and Community Services
[2004] AATA 62
•15 January 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 62
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/209
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL HOLIK Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WFJ Purcell Date15 January 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Age Pension – applicant notified of decision to cancel Age Pension – did applicant seek review of decision to cancel Age Pension within 13 weeks of being notified – entitlement to arrears – decision affirmed
Social Security Act 1991 ss 78, 1302A
Social Security (Administration) Act 1999 s 109
ORAL REASONS FOR DECISION
15 January 2004 Senior Member WFJ Purcell 1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 22 May 2003, which affirmed the decision of an Authorised Review Officer of 16 April 2003, not to pay arrears of Age Pension for the period 1 May 1997 to 26 February 2003.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents), together with exhibits tendered by the applicant, who appeared on his own behalf and gave oral evidence, with the assistance of an interpreter in the Czech language, Ms Kautsky. Ms Cerone represented the respondent (the Department).
3. The applicant who is now 73 years of age, had been in receipt of Disability Support Pension, and subsequently Age Pension, before he travelled to his country of birth, the Czech Republic in 1995. He was the victim of an assault soon after his arrival, and required in-patient and out-patient hospital treatment for the remainder of his stay in Prague. He stayed with his brother until his return to Australia on 1 August 1996.
4. The applicant’s Disability Support Pension had been cancelled on 7 September 1995 on the basis that his whereabouts were unknown. On 1 August 1996 he attended at Glenelg’s Centrelink office and applied for Age Pension. Age Pension was granted from 8 August 1996. The applicant requested also arrears of Disability Support Pension from September 1995, on the grounds that he advised Centrelink that he was going overseas. On 14 August 1996 arrears of Disability Support Pension and Age Pension in the sum of $7,603.10 was credited to the applicant’s account, being arrears from 21 September 1995 to 25 July 1996. The letter of advice reads:
“I am writing to you about your arrears of Disability and Age Pension.
Payment of $7603.10 has recently been credited to your account.
This represents payments of arrears of pension from 21st September 1995 to 25th July 1996. It has been decided that your payment was cancelled in error during this time and as you advised before you left to go overseas you were entitled to payment.” [T9/25]
5. On 23 August 1996, the applicant attended again at the Glenelg Centrelink office, and advised that he was travelling to Czechoslovakia, and might be staying permanently [T6/19]. He agreed in evidence that he was advised verbally that if he was staying for more than 12 months, he was to notify the International Operations Branch in Hobart. He was provided with a Departure Certificate, which stated, in part “Your pension will be reviewed 6 months after your departure …” and “Your pension will stop if you do not reply to any review”. This certificate also advised of the contact details for the International Operations Branch in Hobart [T11/29]. The applicant said in evidence that he took this Certificate with him to Czechoslovakia.
6. The applicant, on 23 August 1996, provided also a notice of change of address; and on 22 April 1997 a notice was sent to the applicant at this address, 75 Nunyah Avenue, Parkholme, South Australia 5043, advising of the suspension of his Age Pension payments as he had not completed and returned an Overseas Review Form. A further notice was sent to the applicant at the same address on 17 June 1997, advising of the cancellation of Age Pension on 12 June 1997, again on the basis that he had not returned the Overseas Review Form.
7. The applicant returned from overseas on 27 February 2003, and attended the Glenelg Centrelink office the same day. He lodged a claim for Age Pension, and requested arrears of payment from 12 June 1997. On 14 March 2003 a decision was made not to pay arrears, and the applicant requested a review. A notice was forwarded to him on the same day advising him that his request was unsuccessful. On 16 April 2003, this decision was affirmed by an Authorised Review Officer, and on 22 May 2003 the SSAT affirmed the decision.
8. The applicant, who has a lengthy history of psychiatric and other health problems, maintains that he was confused by the wording of the Departure Certificate. He was continuing to receive medical treatment for the injuries he received in the 1995 assault; he assumed that the payments of pension were continuing; he did not receive any mail from Australia in the nearly 6½ years he was in Prague. His friend at Parkholme, Mr Smik, had died during the time the applicant was overseas, and now he has no funds, he is relying on assistance from friends, and his financial circumstances are dire.
9. The Department contends that there has been no administrative error in this matter. The applicant informed the Department on 23 August 1996 that he would be travelling to the Czech Republic on 25 August 1996, and that his contact address had changed to 75 Nunyah Avenue, Parkholme, South Australia 5043. He did not provide any contact address in the Czech Republic. The notice of 22 April 1997 informing the applicant of the suspension of his Age Pension was sent to the address that he had supplied to the Department as his correct contract address. The notice of 17 June 1997 informing the applicant of the cancellation of his Age Pension was sent to the same address. The applicant could and should have informed the Department of his contact address in the Czech Republic, but he failed to do so.
10. Section 1302A of the Social Security Act 1991 (the Act) as it was at the time provided:
“(1) If notice of a decision under this Act is:
(a) delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
(2)Notice of a decision under this Act may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3)If notice of a decision under this Act 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 letter would be delivered in the ordinary course of the post unless the contrary is proved.”
Having regard to this section, the Department contends that the applicant was correctly notified of the decision to cancel his Age Pension. He was sent notice of the decision by pre-paid post to the postal address of the person last known to the Secretary.
11. The Department contends further that the applicant did not seek review of the decision to suspend or cancel his Age Pension within 13 weeks of being notified of the original decision, and s 109(2) of the Social Security (Administration) Act 1999 (the Administration Act) applies to his circumstances. Section 109(2) provides:
“(2) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person 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)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.”
12. The Department submits also that the applicant could and should have monitored the payment of his Age Pension. If he had, he would have noticed that payment had stopped. He could have informed the Department of his circumstances, and he could thence have been paid Age Pension whilst resident in the Czech Republic. The Secretary has a duty to pay Age Pension to recipients who are qualified to receive this pension. It is reasonable that the Secretary occasionally check the continued eligibility of Age Pension recipients. It was for this purpose that the Secretary sent to the applicant the Overseas Review Form questionnaire. When the applicant did not return this questionnaire, the Secretary could not determine if the applicant had a continued entitlement to Age Pension. The applicant’s Age Pension was first suspended and then cancelled because the Secretary could not determine the applicant’s continued qualification for Age Pension. These actions were authorised under s 78 of the Act as it was at that time.
13. The applicant said in evidence that although he had the Departure Certificate with him, which advised that he should notify the Department if he was to be away longer than one year, it did not occur to him to seek the assistance of the Australian Mission in Prague, with which he had contact in 1995, when his passport was stolen. He said that the psychological and psychiatric reports, which he tendered at the Hearing, supported his assertion that he has short-term memory loss and difficulties with comprehension. In addition to the 1995 assault injuries, he suffered two heart attacks not long after he arrived in Czechoslovakia. He was receiving ongoing hospital treatment, but he intended always to return to Australia, and did not pay attention to the requirements outlined in the Departure Certificate.
14. The applicant said in evidence that his friend, Mr Smik, died while the applicant was overseas; but he said in evidence that he had not instructed Mr Smik to forward mail to Czechoslovakia as he had intended to return in the near future – he had never intended to remain for more than 6 years in Czechoslovakia. He had sold his home at Elizabeth, and he took the net proceeds of sale of $55,000 to Czechoslovakia. He spent all of those funds on living expenses, and pharmaceutical and medical expenses. He did not access his Australian bank account, nor check the balance in the account during his absence.
15. It is clear on the applicant’s evidence that he has physical and psychiatric difficulties. He is now without the proceeds of sale of his home; and sadly, had he notified Centrelink as required in accordance with the Departure Certificate, the pension would have continued to be paid during the entire 6½ year absence.
16. If I were satisfied that the notices in April 1997 and June 1997 were not “received” by the applicant, his eligibility for pension could be restored for the period in question. The applicant however, had provided a change of address prior to leaving Australia in August 1996, and correspondence was forwarded to that address. In accordance with s 1302A(c) of the Act, the notice was “sent by pre-paid post to the postal address of the person last known to the Secretary”.. I am satisfied on the evidence that the notice of decision can be taken to have been given to the applicant. It is clear on the evidence also, that at no time while he was absent from Australia did the applicant notify the Department of a change of address; and on his own evidence he did not instruct Mr Smik to forward correspondence to his brother’s address in Prague. Mr Smik was to hold all correspondence until the applicant’s return. He had stayed with his brother from 1995 until July 1996, and returned to that address in early September 1996, yet he says he did not think to provide this address to Mr Smik or to the Department.
17. The applicant did not apply for review of the decision to cancel pension dated 12 June 1997 until 27 February 2003, which is not within 13 weeks of the notice being given. In those circumstances, pursuant to s 109(2) of the Administration Act, a favourable determination if it were made, would take effect on the day on which the application for review was made, namely 27 February 2003. No arrears of Age Pension prior to 27 February 2003 is payable in any event.
18. For these reasons, I am satisfied that arrears of Age Pension for the period 1 May 1997 to 26 February 2003 is not payable to the applicant. The Tribunal affirms the decision under review.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WFJ Purcell
Signed: .......................................................................................
AssociateDate of Hearing 15 January 2004
Date of Decision 15 January 2004
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms S Cerone
Solicitor for the Respondent Centrelink Service Recovery Team
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