Hutton and Secretary, Department of Family and Community Services

[2005] AATA 330

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2004/1379

GENERAL ADMINISTRATIVE DIVISION )

Re KERRIE HUTTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date7 April 2005

PlaceTaree

ADMINISTRATIVE APPEALS TRIBUNAL         )       No.      N2004/1379
  )
GENERAL ADMINISTRATIVE DIVISION            )

Re          KERRIE HUTTON

Applicant

And       SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal        :      Senior Member M D Allen

Date               :      7 April 2005

Place             :       Taree

Decision:       For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.

(Sgd)          M.D. ALLEN
  .............................
   Senior Member

CATCHWORDS

SOCIAL SECURITY –Department’s decision not to pay applicant arrears of parenting payment – incorrect assessment of income – whether letter to applicant was a notice pursuant to s 109 of Social Security (Administration) Act 1999 - decision under review affirmed.

Social Security (Administration) Act 1999 – s 109

Secretary, Department of Family & Community Services v Rogers (2000) 104 FCR 272

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  7 April 2005

Date of Decision  7 April 2005

Solicitor for Applicant                  Mr Raymond Hutton

Advocate for Respondent           Ms Susan Mantaring, Department of Family and Community Services

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N04/1379
By MR M.D. ALLEN, Senior Member
KERRIE HUTTON and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, THURSDAY, 7 APRIL 2005

MR ALLEN:   By application lodged with the Tribunal on 25 October 2004, the applicant sought review of a decision by a Social Security Appeals Tribunal made 24 September 2004, which decision affirmed a prior determination by the respondent not to pay to the applicant arrears of Parenting Payment from 7 November 2001 to 12 April 2004. 

The application came on for hearing before me at Taree and at that time I took in as exhibits, the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with an additional bundle of documents from the respondent and the respondent's statement of facts and contentions.

The issue in the matter is a relatively brief one.  Apparently, on 15 May 2000, Centrelink sent to the applicant, a letter advising that the information used for calculating her regular payment of parenting payment was her partner's annual income of $5943.86 and her annual income was nil.

The letter also contained the usual advice that if she did not ask for the decision to be reviewed within 3 months of being told about it, she could only get back payment from the date of asking. That notice was on the letter pursuant to subsection (2) of 109 of the Social Security (Administration) Act 1999 which reads inter alia:

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 in which the application for review was made.

It appears that in this matter, although there were various forms lodged by the applicant and her husband with Centrelink which pointed out to Centrelink that the husband income had changed because he was now on a NewStart allowance - see for example, the document which is annexure F to exhibit R2, which is a claim for Carer Allowance - the respondent continued to calculate the applicant's payment on the bases that her husband's annual income was in the sum of $5943.86.  That apparently, continued from the period 7 November 2001 until 12 April 2004.

It would appear that in April 2004, the applicant queried the rate of payment with Centrelink and it was then discovered that an incorrect amount had been used by Centrelink to calculate the applicant's payments, although the correct amount of the husband’s income had been notified to Centrelink as far back as November 2001. The matter was then adjusted but pursuant to subsection (2) of section 109, arrears could only be paid from the date the actual application for review was made.

The applicant and her husband, naturally feel somewhat aggrieved about this because as they correctly point out, they had at all times, correctly notified Centrelink of the husband's earnings and the mistake was that by Centrelink. That in fact, has been acknowledged by Centrelink but it is not a matter which is before me. There has been an argument advanced to the effect that the various letters received by the applicant notifying her of the rate of parenting payment was not a notice for the purposes of subsection (3) of section 109 of the Social Security (Administration) Act.  That subsection reads inter alia:

If

(a) a decision (the original decision) is made in relation to a person's social security payment; and

(b) the person is not given notice of the original decision; and

(c) 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 determination embodying the original decision took effect.

An example of the documents sent to the application can be gauged by the document which is at T8.  That is a notice forwarded to the applicant with respect to a pay day of 22 November 2001.  That document sets out the heading - your parenting payment - and goes on to state:

Parenting payment partnered, $302.75.  Information used for calculating your regular payment:  assets $66; your partner's annual income, $5943.86.

The question of what constitutes a notice for the purposes of the Social Security Act was discussed by Cooper J in Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272. At paragraph 32, his Honour said:

A requirement that a person be given notice of something does not demand that the matter be brought home to the person's understanding or knowledge; nor is notice synonymous with knowledge…. however notice requires that the matter of which a person is to have notice must be brought clearly to the person's attention.

His Honour then continued at paragraph 33:

In my view, the matter to be communicated by the “notice” referred to in ss 299(2), (3) and (4), is the making of a decision in relation to a SPP which is a reviewable decision under s 1240 of the Act.  That involves two elements; the fact that a decision has been made and the content of the decision.  The subsections make no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person's right to seek a review.

At paragraph 35 his Honour said:

The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given.

Now, when one looks at the document, document T8, which is similar to other documents, it can be seen that the two elements referred to by his Honour Cooper J in paragraph 33 above, are present.  There is the fact that the decision has been made.  That is to say, it sets out your parenting payment and the amount that will be paid.  It also sets out the content of the decision, namely that you are going to get a parenting payment in this sum.  It sets out also, it might be said, what the Department understood to be the husband's income.

As the two elements, namely the fact the decision had been made and the content of the decision were communicated to the applicant, the letter constituted a notice, therefore at all relevant times, the applicant had notice of the decision which was made and therefore subsection (2) of section 109 applies and any arrears - payment of arrears - can only be backdated 13 weeks. The decision under review will therefore be affirmed.