Hollan and Secretary, Department of Social Services (Social services second review)
[2022] AATA 211
•14 February 2022
Hollan and Secretary, Department of Social Services (Social services second review) [2022] AATA 211 (14 February 2022)
Division:GENERAL DIVISION
File Number: 2020/6183
Re:Mr Peter Hollan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:14 February 2022
Place:Brisbane
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 1 September 2020, and in substitution determines that:
(a)the Applicant satisfied sections 94(1)(a), (b), and (c) of the Social Security Act 1991 (Cth) as at the date of claim; and
(b)the Applicant satisfied the qualification, or payability requirements for this period and is granted their claim with a date of effect being the date the Applicant applied for First Review of the Authorised Review Officer’s decision in the Social Services and Child Support Division of the Administrative Appeals Tribunal, being 11 July 2020.
..............[SGD]....................
Senior Member B. Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated, and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period – Applicant satisfied DSP criteria – determination of period of payment eligibility – whether payment is arrears limited – decision under review set aside and substituted
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Knott and Secretary, Department of Social Services [2015] AATA 266
Re Wagner and National Disability Insurance Agency [2020] AATA 1775
Secretary, Department of Employment and Workplace Relations v Mitchell (2006) 92 ALD 201
REASONS FOR DECISION
Senior Member B. Pola
14 February 2022
1. On 3 December 2018, the Applicant, Mr Peter Hollan, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency’)[1].
[1] Exhibit R1, Section 37 T Documents, T11, pages 82 to 116.
2. On 18 March 2019, the Agency sent a letter to the Applicant advising him that his application for the DSP had been rejected[2].
[2] Ibid, T15, pages 128 to 129.
3. On 4 February 2020, the decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency[3].
[3] Ibid, T26, pages 143 to 147.
4. The Tribunal observes that a file note from the Agency records that the ARO had attempted to contact the Applicant to inform him of this decision[4]:
… ARO ph cust 11.37am AEDT 3/02/20. Left a message on message service to return my call.
ARO ph cust 9.38AEDT 4/02/20. No message left as 2nd call…
[4] Ibid, T26, page 147.
5. Following the failed attempts to reach the Applicant, a letter was sent by the ARO to the Applicant, with Agency records indicating[5]:
Affirmed original decision of 18/03/19 to reject DSP. Cust does not attract 20 impairment points.
s94 SSA 1991
ARODEC and AROEVD scanned to record.
Customer advised by ARO letter 4/2/2020, Copy on File…
[5] Ibid, T32, page 201.
6. Agency records indicate that, on 2 June 2020, a letter was received by the Agency marked as return to sender (with the letter inside dated 10 April 2020). The Tribunal observes that the file note with respect to this letter states, “Return letter more than 42 days old…”[6]. During the first day of the hearing, the Respondent stated that they were unable to confirm from their records the correspondence which had been returned[7].
[6] Exhibit R2, Supplementary Section 37 T Documents Pt 1, ST5, page 158.
[7] Transcript (30 August 2021), page 20, lines 23 to 42.
7. The Applicant filed a complaint against the Agency on 1 June 2020 with respect to a delay in receiving a decision regarding a review by an ARO. On 2 June 2020, the Agency recorded the following file note of a telephone conversation with the Applicant[8]:
Successful call to the customer at 11.50 am on 2/6/20. POI completed.
Customer has been advised that this call would not be recorded due to technical difficulties. The customer was happy to proceed with the call.
I apologised to the customer and discussed his concerns.
I explained that the ARO has determined appeal ID G429192 on 4/2/20. The decision of rejection was affirmed. I confirmed that the customer received the letter dated 4/2/20 and was aware of the outcome. Customer was aware and he stated his carer has the letter. I explained that on the bottom of the letter it states he has the right to appeal further to the AAT. I gave the customer the AAT phone number and advised they can also lodge a appeal to AAT online. I gave the customer the appeal information and date of decision…
…
The customer is aware his carer currently is not on the system as a nominee or PPE. The carer will complete the form soon for future contacts…
[8] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T25, pages 200 to 201.
8. The existence of the above file note from the Agency is contested by the Applicant and this is discussed in later reasons of this decision.
9. The Applicant has a carer, Ms Lisa Newton, who also represented the Applicant at the hearing. Ms Newton (at various points in time) has been appointed as a person of contact nominated by the Applicant, with respect to his dealings with the Agency. This is discussed and considered by the Tribunal in detail in later reasons of this decision.
10. A further Agency file note from 24 June 2020 details a phone conversation between the Agency and the Applicant’s carer, Ms Newton, and states that the Applicant was advised of the decision made by the ARO. The Tribunal observes the following[9]:
SO advised cus that decision was made by ARO re his appeal and ARO agreed with the original decision. Advised carer that she was contacted on 04.02.20 re the decision but contact was unsuccessful as per appeal note. Provided carer with the phome [sic] number for the AAT for further discussion.
[9] Exhibit R2, Supplementary Section 37 T Documents Pt 1, ST6, page 159.
11. On 11 July 2020, the Applicant’s carer (Ms Newton) applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal, for review of the ARO’s decision to reject the Applicant’s claim for the DSP, made on 3 December 2018[10]. The Tribunal observes that Ms Newton indicated that the date of the decision was 26 June 2020 (two days after the phone call with the Agency on 24 June 2020), and gave the following reasons on the Applicant’s behalf when making the application for review of the decision[11]:
Peter applied for the DSP on 21 November 2018 and was rejected and February 2019 an immediate appeal was lodged and 17 months later on 26th June 2020 a call centre staff member from Centrelink advised Peter that his appeal had been denied apparently the appeals team made one phone call from a private number to me (my name is Lisa Newton and I have been approved as Peter’s carer from 21 November 2018). Peter was incarcerated 3 years earlier and 2015 that prior to that he had been approved and was receiving the DSP for over a decade and I was his carer then also because the appeals team could not contact me on the one only call they made they made no other attempt to contact Peter by mail or by email or any other method. Peter was only aware of the decision after speaking to a staff member at the call centre on that numerous occasions did he contacted Centrelink to find out the result of his appeal…
[sic]
[10] Ibid, ST7, pages 160 to 162.
[11] Ibid, page 160.
12. On 1 September 2020, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[12].
[12] Exhibit R1, Section 37 T Documents, T2, pages 3 to 10.
13. The Applicant applied to the Tribunal for Second Review of this decision on 25 September 2020[13].
[13] Ibid, T1, pages 1 to 2.
14. The Tribunal notes that in the intervening period since the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s DSP claim, and prior to the commencement of the hearing for a Second Review of this decision by the General Division of the Tribunal, the Respondent tendered a Health Professional Advisory Unit Report, dated 19 July 2021 (which relates to the Applicant’s conditions during the Qualification Period)[14]. Further medical evidence from the Applicant’s General Practitioner, Dr. Donna Pineda, was also tendered by the Applicant[15].
[14] Exhibit R4, Health Professional Advisory Unit Report – Dr. Nalayini Kanagaratnam (Medical Adviser)
[15] Exhibit A2, Medical Report letter from Dr. Donna Pineda; Exhibit A3, Letter from Dr. Donna Pineda; Exhibit A4, Medical Report letter from Dr. Donna Pineda.
15. In submissions to the Tribunal, dated 2 August 2021[16], the Respondent accepted that the Applicant satisfied the DSP medical eligibility criteria pursuant to sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’), and sought orders from the Tribunal that the Applicant be granted DSP from the date they first sought review, being 11 July 2020.
[16] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions.
16. The Applicant contends that his entitlement to the DSP should be paid from his date of claim (being 3 December 2018), as he did not receive the decision of the ARO until June 2020 and sought First Review with the SSCSD of the Tribunal on 11 July 2020 (therefore being within the statutory timeframe of thirteen weeks from when the Applicant stated he had received the decision of the ARO).
17. On 30 August 2021, the Tribunal commenced a hearing into the application, during which the Tribunal gave reasons ex tempore with respect to the Applicant satisfying the requirements of sections 94(1)(a), (b) and (c) of the Act, as at the date of claim for the DSP (being 3 December 2018[17]).
[17] Exhibit R1, Section 37 T Documents, T11, pages 82 to 116.
18. During the course of the first day of hearing, the Tribunal expressed some doubts with respect to the date from which the Applicant’s claim for the DSP should be paid and was of the view that the Respondent ought to reconsider this aspect of the decision under review, in light of gaps in the evidence with respect to the date on which the decision from the ARO was delivered to the Applicant.
19. Subsequent to the hearing, on 3 September 2021, the Tribunal issued a direction pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (herein referred to as the ‘AAT Act’). This directed the Respondent to reconsider this aspect of the decision under review and determine the date from which the Applicant was entitled to any further payment of the DSP, pursuant to Item 8 of section 147 of the Social Security (Administration) Act 1999 (Cth) (herein referred to as the ‘Administration Act’), regarding the period commencing from the Applicant’s date of claim for the DSP (being 3 December 2018) and ending at the date the Applicant applied for First Review (being 11 July 2020)[18].
[18] Exhibit T2, Tribunal Direction (Remittal).
20. The Respondent sought an extension of time to respond to the Tribunal’s direction of 3 September 2021 and on 12 October 2021 (following an agreement between both parties), the Tribunal granted the Respondent an extension of time until 22 October 2021 to comply with the direction[19].
[19] Exhibit T3, Tribunal Direction.
21. The Applicant has subsequently sought to appeal the reconsidered decision of the Respondent. On 26 November 2021, the Tribunal directed the parties to provide the Tribunal with further written submissions ahead of a resumed hearing[20].
[20] Exhibit T4, Tribunal Direction.
22. The hearing resumed in Brisbane by telephone on 11 January 2022, with the Applicant again represented by his carer, Ms Lisa Newton. The Respondent was represented by Mr Samuel Harvey of Services Australia. The Tribunal has considered submitted evidence entered into the Exhibit Register (refer to Annexure 1 at the end of these reasons), as well as oral evidence from the Applicant, the Applicant’s representative (Ms Newton), and the Respondent.
JURISDICTION
23. This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
24. The Applicant’s claim of 3 December 2018 has been reviewed in accordance with section 135 of the Administration Act by an ARO[21].
[21] Exhibit R1, Section 37 T Documents, T26, pages 143 to 147.
25. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published reasons on 1 September 2020[22].
[22] Ibid, T2, pages 3 to 10.
26. In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s application for Second Review of the SSCSD of the Tribunal’s decision to affirm the decision to reject the Applicant’s DSP claim of 3 December 2018.
ISSUE
27. The issue before the Tribunal for consideration is the decision of the Respondent on reconsideration, as directed by the Tribunal, with respect to determining the date from which the Applicant is entitled to any further payment of the DSP, pursuant to Item 8 of section 147 of the Administration Act, with respect to the period commencing from the Applicant’s date of claim (being 3 December 2018[23]) and ending at the date the Applicant applied for First Review (being 11 July 2020[24]).
[23] Ibid, T11, pages 82 to 116.
[24] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T18, pages 176 to 178.
CONSIDERATION
28. As stated in earlier reasons, during the first day of the hearing, the Tribunal gave reasons ex tempore with respect to the Applicant satisfying the requirements of sections 94(1)(a), (b) and (c) of the Act as at the date of claim for the DSP (being 3 December 2018[25]). The original contention with respect to the Applicant satisfying the medical eligibility requirements for the DSP was not disputed by the Respondent[26]. What was in contention was the date from which the Applicant was entitled to payment of the DSP, which was the focus of the second day of the hearing.
[25] Exhibit R1, Section 37 T Documents, T11, pages 82 to 116.
[26] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions, paragraph 89.
29. Item 8 of section 147 of the Administration Act, seeks to limit subsection 43(6) of the AAT Act by effectively imposing a statute of limitations with respect to the date from which a payment can occur. Payment is restricted to the date an individual seeks First Review of a decision with the Tribunal. In the present matter, the date of First Review is 11 July 2020.
30. Subsection 43(6) of the AAT Act states that decisions made by the Tribunal take effect on and from the day on which the decision under review has or had effect (unless otherwise ordered). It provides:
Tribunal’s decision taken to be decision of decision-maker
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
31. Item 8 of section 147 of the Administration Act effectively limits the arrears payment an individual may be entitled to, from the date that individual seeks First Review of a decision with the Tribunal (if the request for the review is made more than thirteen weeks after having received notice of the decision of an ARO). This is done by modifying subsection 43(6) of the AAT Act. It provides:
Application and modification of AAT Act Item Decision or matter Provision of AAT Act Application or modification of provision of AAT Act 8 Date of effect of decision on AAT first review, other than an AAT decision in relation to an Subsection 43(6) (AAT’s decision taken to be decision of decision-maker) The subsection has effect as if the decision under review had taken effect on the day a person applied for AAT first review of the decision, if:
(a) the person is given written notice of the decision under the social security law; and
(b) the person applies for AAT first review more than 13 weeks after the notice was given; and
(c) on AAT first review, the AAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the AAT’s decision is:
(i) to grant the person’s claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person’s social security payment
32. The Tribunal is of the view that, in exercising its power with respect to section 43 of the AAT Act, it is standing in the shoes of the SSCSD, and any decision made is deemed to be that of the SSCSD of the Tribunal. It therefore follows that the constraint in Item 8 of section 147 of the Administration Act, should prevail over the discretion to order retrospectively, as permitted by the power within subsection 43(6) of the AAT Act[27]. The Tribunal accepts that Item 8 of section 147 of the Administration Act extends to Second Review, with respect to the application before the Tribunal.
[27] In accordance with Secretary, Department of Employment and Workplace Relations v Mitchell (2006) 92 ALD 201 at [59].
33. The Tribunal refers to the decision of Knott and Secretary, Department of Social Services[28]. In this decision, Senior Member McCabe (as he then was) explained the effect of sections 109 and 152 of the Administration Act (as the relevant legislative provisions then were) and the interaction with section 43(6) of the AAT Act:
….I am satisfied s 43(6) of the AAT Act must be read subject to the restrictions in s 109 and 152 of the Administration Act. The provisions in the Administration Act reflect a policy requiring the recipients of social security benefits to exercise their rights of review in a timely way. Those provisions operate as a statute of limitations, as DP Jarvis explained in Mitchell (at [57]). It would be odd if parliament did not intend that policy to apply to reviews of social security decisions by this Tribunal. I think the words of the Administration Act ought to be interpreted broadly to give effect to that policy, which necessarily qualifies the operation of s 43(6) of the AAT Act….
[Tribunal underline for emphasis]
[28] [2015] AATA 266 at [20]; citing, inter alia, Secretary, Department of Employment and Workplace Relations v Mitchell (2006) 92 ALD 201.
34. As stated in earlier reasons by the Tribunal, with respect to the date of effect for the payment of the Applicant’s DSP, contentions exist as to when the Applicant received the decision of the ARO (dated 4 February 2020). The key issue for the Tribunal to decide in this matter is the date on which the Applicant received the ARO decision. In determining this, the Tribunal will consider the following in turn:
(a)Whether the Applicant had a correspondence nominee (i.e. Ms Newton);
(b)Whether the Applicant was sent the ARO decision of 4 February 2020;
(c)When the Applicant received the ARO decision of 4 February 2020; and
(d)Whether the Applicant sought First Review of the decision more than thirteen weeks after receiving the ARO decision of 4 February 2020.
(a) Whether the Applicant had a correspondence nominee (i.e., Ms Newton)
35. With respect to whether the Applicant had nominated Ms Newton as a correspondence nominee, the Tribunal notes the following relevant evidence submitted by the Respondent prior to the second day of the hearing:
(a)A completed form was signed by the Applicant, on 9 August 2007, authorising Ms Newton as a person permitted to enquire with the Agency as to the Applicant’s affairs. The Tribunal also observes that the Applicant did not make Ms Newton a correspondence nominee, despite being provided with an explicit option on the form to do so[29].
(b)On 14 January 2010, a file note from the Agency indicates the Applicant contacted the Agency and cancelled Ms Newton as an authorised person to enquire as to the Applicant’s records with the Agency[30].
(c)On 29 September 2010, a file note from the Agency indicates the Applicant verbally contacted the Agency to reinstate Ms Newton as a person with permission to enquire. The file note also stated that the Agency had issued a form to the Applicant for the Applicant to complete giving Ms Newton permission to act on his behalf (i.e. the correspondence nominee)[31]. The Respondent confirmed in submissions to the Tribunal that no record of this form was ever returned to the Agency[32].
(d)When the Applicant was asked whether he authorised another person or organisation to make enquiries, get payments and/or act on his behalf (at question six) in his DSP claim form, signed on 28 November 2018[33] and lodged with the Agency on 3 December 2018, the Applicant indicated, “No”[34]. Later on in his claim for the DSP, the Applicant further indicated that he should be contacted if the Agency required further information with respect to more detailed answers in the claim regarding his income and assets form (at question fifty-five)[35]. During the hearing, the Applicant stated that his DSP claim form had been completed by Ms Newton and that he had been present when it was prepared, and that he was of the belief that he had already consented to Ms Newton being his correspondence nominee[36]. The Tribunal observes that there is no evidence before it which substantiates the Applicant’s contention in this respect.
[29] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T9, pages 82 to 83.
[30] Ibid, T28, page 218.
[31] Ibid, page 219.
[32] Exhibit R6, Respondent’s Revised Statement of Facts, Issues and Contentions, pages 7 to 8, paragraph 78.
[33] Exhibit R1, Section 37 T Documents, T11, page 108
[34] Ibid, page 85.
[35] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T12, page 141.
[36] Transcript (11 January 2021), pages 54 to 55.
36. The Respondent contended that Ms Newton was not the Applicant’s correspondence nominee at the time of the ARO decision of 4 February 2020[37]. The Tribunal agrees, as the evidence before the Tribunal indicates the Applicant had not completed a signed form nominating Ms Newton to be the Applicant’s correspondence nominee.
[37] Exhibit R6, Respondent’s Revised Statement of Facts, Issues and Contentions, pages 7 to 8, paragraphs 74 to 80.
(b) Whether the Applicant was sent the ARO decision of 4 February 2020
37. Section 237(1) of the Administration Act provides that notice of a decision under the social security law is either delivered to a person personally, or left at the address of the place of residence or business of the person last known to the Secretary, or sent by prepaid post to the postal address of the person last known to the Secretary. Further, it states that notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
38. Section 237(2) of the Administration Act states that notice of a decision under the social security law may be given to a person by properly addressing, pre-paying and posting the document as a letter.
39. Section 237(3) of the Administration Act states that if notice of a decision is given in accordance with section 237(2) of the Administration Act, 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.
40. Further, section 237(4) of the Administration Act states that section 237 of the Administration Act only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 (Cth) (herein referred to as the ‘Interpretation Act’) in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
41. Section 28A of the Interpretation Act states that if an Act requires a document to be served on a person, it may be served on the person personally, or by post. It provides:
28A Service of documents
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
…
[Bolding in original]
42. Section 29 of the Interpretation Act states that a document served by post is deemed to be effected, by properly addressing, pre-paying and posting the document as a letter, unless the contrary is proved. It provides:
29 Meaning of service by post
(1)Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2)This section does not affect the operation of section 160 of the Evidence Act 1995…
[Bolding in original]
43. Section 160 of the Evidence Act 1995 (Cth) (herein referred to as the ‘Evidence Act’) provides that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory is deemed to be received at that address on the seventh working day, after having been posted (unless sufficient evidence to raise doubt about the presumption is adduced).
44. Section 163 of the Evidence Act provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day, after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. The Tribunal accepts that section 5 of the Evidence Act extends the operation of section 163 to the Administrative Appeals Tribunal[38].
[38] ReWagner and National Disability Insurance Agency [2020] AATA 1775 at [12].
45. Critically, section 23(12) of the Act provides:
(12) If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice…
[Tribunal bolding for emphasis]
46. During the first day of the hearing, the Tribunal originally raised doubts with respect to the Applicant having received the decision of the ARO made on 4 February 2020, in circumstances where:
(a)The Applicant’s carer (Ms Newton) denied receiving a phone call or having been left a message in February 2020 from an ARO notifying her of the review decision, with respect to the Applicant’s claim for the DSP. Ms Newton claimed that she had continued to query the outcome of the ARO decision after this date[39];
(b)Mail sent by the Respondent to the Applicant was returned to the Respondent on 2 June 2020 and marked as ‘return to sender’, with the Respondent unable to confirm precisely which mail had been returned to the Agency; and
(c)The Agency’s phone records with the Applicant’s carer on 24 June 2020 indicated that they had informed the Applicant’s carer of the ARO decision and his appeal rights[40]:
SO advised cus that decision was made by ARO re his appeal and ARO agreed with the original decision. Advised carer that she was contacted on 04.02.20 re the decision but contact was unsuccessful as per appeal note. Provided carer with the phome [sic] number for the AAT for further discussion.
[39] Transcript (30 August 2021), page 16, lines 28 to 46.
[40] Exhibit R2, Supplementary Section 37 T Documents Pt 1, ST5, page 159.
47. Subsequent evidence submitted by the Respondent to the Tribunal (as outlined in earlier reasons and restated here) revealed that the Applicant filed a complaint against the Agency on 1 June 2020 with respect to a delay in receiving a decision regarding a review by an ARO. On 2 June 2020, the Agency recorded the following file note of a telephone conversation with the Applicant[41]:
Successful call to the customer at 11.50 am on 2/6/20. POI completed.
Customer has been advised that this call would not be recorded due to technical difficulties. The customer was happy to proceed with the call.
I apologised to the customer and discussed his concerns.
I explained that the ARO has determined appeal ID G429192 on 4/2/20. The decision of rejection was affirmed. I confirmed that the customer received the letter dated 4/2/20 and was aware of the outcome. Customer was aware and he stated his carer has the letter. I explained that on the bottom of the letter it states he has the right to appeal further to the AAT. I gave the customer the AAT phone number and advised they can also lodge a appeal to AAT online. I gave the customer the appeal information and date of decision…
…
The customer is aware his carer currently is not on the system as a nominee or PPE. The carer will complete the form soon for future contacts…
[Tribunal bolding for emphasis]
[41] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T25, page 200.
48. With respect to the above file note of the Agency, the Tribunal observes that “POI” stands for Proof of Identity, and that this is an identity check undertaken by the Agency to confirm they are speaking with the relevant individual (in this instance, the Applicant). Further, the Tribunal observes that “PPE” stands for Person Permitted to Enquire. That is, the Applicant had been informed by the Agency that Ms Newton was not permitted to enquire on his behalf.
49. During the second day of hearing, the Applicant was questioned as to whether he could recall this phone call taking place. He stated that he could not recall the phone conversation and did not agree that the file note of the Agency was correct in stating that the Applicant had confirmed that he had received the letter of the decision of the ARO, dated 4 February 2020, and that Ms Newton had a copy of the letter[42]. Further, when Ms Newton was questioned as to whether she had received a copy of the ARO letter, she stated that she did not[43].
[42] Transcript (11 January 2020), pages 60 to 61.
[43] Transcript (11 January 2020), page 67, lines 15 to 44.
50. The Tribunal accepts that the Respondent’s records indicate that a letter was sent to the Applicant, following the decision of the ARO[44]. The Tribunal observes that the address on the ARO decision letter is consistent with the address which the Respondent had on file at the time for the Applicant, observing also that the Applicant’s address was subsequently changed on 28 August 2020[45].
[44] Exhibit R2, Supplementary Section 37 T Documents Pt 1, ST5, page 158.
[45] Ibid, ST2, page 153; Exhibit R1, Section 37 T Documents, T26, page 143.
51. During the second day’s hearing, when the Applicant was questioned as to his residential address, he was taken to various documents (in new evidence filed by the Respondent ahead of the second day of the hearing) and confirmed that his residential address was the same as that of which the decision of the ARO was sent to. This included a copy of a tenancy agreement, received on 30 January 2019[46], a rent certificate, received on 4 December 2019[47], and an application for a crisis payment made on 31 August 2020[48]. The Applicant stated that he had finished living at the residential address in February 2020 and was living with a friend. He went on to state that mail had been going missing from his residence which led the Applicant to seek that correspondence with the Agency be sent to his myGov account (electronically) instead[49].
[46] Exhibit R7, Supplementary Section 37 T Documents Pt 1, T14, page 149.
[47] Ibid, T15, pages 164 to 166.
[48] Ibid, T20, pages 181 to 184.
[49] Transcript (11 January 2021), pages 64 to 65.
52. The Tribunal is not persuaded by the submissions of the Applicant with respect to him not having received the letter of the ARO, dated 4 February 2020, in circumstances where evidence before the Tribunal confirms the Applicant’s residential address had been used consistently over a period of time (i.e. August 2019 to August 2020), and a file note from Agency records indicates the Applicant confirmed that he had received a copy of the ARO decision letter in a phone call with the Agency on 2 June 2020.
53. With respect to the Applicant’s claims regarding his request for receipt of correspondence from the Agency electronically through his myGov account, the Tribunal accepts that section 237 of the Administration Act, as well as sections 28A and 29 of the Interpretation Act, do not require the Secretary to provide notice of decisions through a preferred method. Further, the Tribunal concurs with the Respondent’s submissions that[50]:
Subsection 237(3) provides that if notice of a decision 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 notice would be delivered in the ordinary course of the post unless the contrary is proved. This means that if a decision is properly sent in accordance with subsection (2) then the notice is as a matter of law taken to be received, even in circumstances where a person is found not to have received the decision. This is clarified in Act which provides at subsection 23(12) that notices sent pursuant to section 237 of the Administration Act continue to apply even when the Secretary is satisfied that the person did not actually receive the notice…
[50] Exhibit R6, Respondent’s Revised Statement of Facts, Issues and Contentions, page 9, paragraph 89.
54. The Tribunal is of the view that the decision of the ARO, dated 4 February 2020, was sent in accordance with section 237 of the Administration Act.
(c) When the Applicant received the ARO decision of 4 February 2020
55. With respect to determining the date on which the Applicant received the ARO’s decision, section 237(3) of the Administration Act deems that a 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.
56. As stated in earlier reasons, section 163 of the Evidence Act provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
57. Therefore, the Tribunal is of the view that the Applicant is deemed to have received the decision of the ARO (4 February 2020), on the fifth business day following the date of the ARO decision (being 11 February 2020). Given that Australia Post’s estimated delivery times are between three and six business days (interstate)[51], the ARO decision, dated 4 February 2020, is deemed to have been received on 19 February 2020, pursuant to section 237(3) of the Administration Act.
(d) Whether the Applicant sought First Review of the decision more than thirteen weeks after receiving the ARO decision of 4 February 2020
[51] See <
58. The Tribunal observes that thirteen weeks following 19 February 2020, falls on 20 May 2020, which would have been the deadline for lodging a First Review of the ARO decision on time.
59. The Applicant applied for First Review of the decision of the ARO on 11 July 2020[52]. As such, in the Tribunal’s view, the Applicant was indeed out of time in applying for First Review and, therefore, is arrears limited, pursuant to item 8 of section 147 of the Administration Act.
[52] Exhibit R7, Supplementary Section 37 T Documents Pt 2, T18, pages 175 to 178.
Summary
60. The Tribunal has found the Applicant is arrears limited, pursuant to Item 8 of section 147 of the Administration Act, and therefore the Applicant’s claim for the DSP is to be paid from the date the Applicant sought First Review, being 11 July 2020.
DECISION
61. Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 1 September 2020, and in substitution determines that:
(a)the Applicant satisfied sections 94(1)(a), (b), and (c) of the Social Security Act 1991 (Cth) as at the date of claim; and
(b)the Applicant satisfied the qualification, or payability requirements for this period and is granted their claim with a date of effect being the date the Applicant applied for First Review of the Authorised Review Officer’s decision in the Social Services and Child Support Division of the Administrative Appeals Tribunal, being 11 July 2020.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
………….[SGD]……………
Associate
Dated: 14 February 2022
Date of hearing: 30 August 2021 and 11 January 2022
Applicant: Mr Peter Hollan
Applicant’s Representative: Ms Lisa Newton
Solicitor for Respondent: Mr Samuel Harvey (Services Australia)
Annexure 1 – Exhibit Register
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 37 T Documents (pages 1 to 202) Re-filed with the Tribunal on 16 December 2021, with additional materials, refer to Exhibit R7 | R | 05 November 2020 | 05 November 2020 |
| R2 | Section 37 Supplementary T Documents Pt 1 (pages 1 to 171) | R | 02 August 2021 | 02 August 2021 |
| R3 | Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 12) | R | 02 August 2021 | 02 August 2021 |
| R4 | Health Professional Advisory Unit Report – Dr. Nalayini Kanagaratnam (Medical Adviser) | R | 19 July 2021 | 19 July 2021 |
| R5 | Request for Statement from SSCSD and ARO Decision | R | 13 July 2020 | 04 June 2021 |
| R6 | Respondent’s Revised Statement of Facts, Issues and Contentions (pages 1 to 13) | R | 16 December 2021 | 16 December 2021 |
| R7 | Section 37 Supplementary T Documents Pt 2 (pages 1 to 270) | R | Various dates | 16 December 2021 |
| A1 | Copy of ARO Letter | A | 04 February 2020 | 04 June 2021 |
| A2 | Medical Report letter from Dr. Donna Pineda | A | 30 December 2020 | 31 December 2020 |
| A3 | Letter from Dr. Donna Pineda | A | 11 May 2021 | 13 May 2021 |
| A4 | Medical Report letter from Dr. Donna Pineda | A | 17 September 2020 | 17 September 2020 |
| A5 | Applicant Submission + 3 x Centrelink letters | A | – | 16 October 2021 |
| A6 | Applicant Submission (Back Pay) | A | 15 November 2021 | 15 November 2021 |
| T1 | Tribunal Direction | T | 26 May 2021 | – |
| T2 | Tribunal Direction (Remittal) | T | 03 September 2021 | – |
| T3 | Tribunal Direction | T | 12 October 2021 | – |
| T4 | Tribunal Direction | T | 26 November 2021 | – |
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