Jackway and Secretary, Department of Family and Community Services

[2004] AATA 1146

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1146

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   Q2004/311

GENERAL ADMINISTRATIVE DIVISION		)
Re		OMOHAE JACKWAY

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date1 November 2004

PlaceTownsville

Decision The Tribunal sets aside the decision under review and substitutes a decision that disability support pension is payable to the applicant from 26 June 2000 to 15 September 2000.

.....................[Sgd].......................

Member  

CATCHWORDS

SOCIAL SECURITY – pensions and entitlements – suspension of disability support pension – cancellation of disability support pension  - decision under review – whether request for review made by applicant

Social Security (Administration) Act1999 ss 109, 154

McDonald v Director-General of social Social Security (1984) 6 ALD 6
Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995)

REASONS FOR DECISION

1 November 2004   Ms M J Carstairs, Member

1.      This is an application by Mrs Omohae Jackway (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 1 April 2004 affirming decisions to suspend and subsequently cancel the applicant’s disability support pension.

2.      At the hearing in Townsville on 1 November 2004 the applicant did not appear.  The respondent was represented by Mr T Ffrench, an advocate with Centrelink.  The Tribunal was satisfied that the applicant was correctly notified of the time and place of the hearing and telephone contact had been made with a person who has assisted the applicant, Ms Cahill.

3.      The applicant is profoundly deaf and this is the basis, in part, on which her disability support pension is paid to her.  The Tribunal had made special arrangements for the conduct of the hearing whereby all questions and discussions in the hearing would be typed for the applicant so that she would be able to follow the proceedings.  This had been discussed with Ms Cahill and she was asked to convey to the applicant the importance of her attending on the day listed for hearing.  In view of the overall circumstances the Tribunal proceeded to hear the matter in the applicant’s absence.

4. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T18 and S1-S41 as well as the respondent’s Statement of Facts and Contentions dated 23 October 2004. 

5.      The matter has a long history and the following are critical dates in that history:

·17.8.99 (T5)              -          pension will be suspended

·23.9.99 (s13)           -          pension has been suspended

·5.1.00 (T6)               -          pension suspended

·23.1.00 (T15)           -          request for review of suspension

·23.1.00 (T15)           -          applicant advised leaving for Papua New Guinea

·24.2.00 (T9)              -          authorised review officer’s decision

·15.9.00 (T12)           -          pension cancelled

·15.9.00 (T12)           -          pay widow’s allowance

6.      Mr Ffrench acknowledged in his Statement of Facts and Contentions that the decisions to suspend and cancel pension were incorrectly taken under the legislation.  He submitted that the SSAT was incorrect in their decision to affirm the primary decisions.  That submission was clearly correct.  McDonald v Director-General of Social Security (1984) 6 ALD 6 is authority for the proposition that if the matter under consideration is the cancellation of a payment and the decision-maker is undecided on the evidence, the correct decision is to continue the payment and not cancel it. The SSAT was incorrect in stating, at paragraph 19 of its decision, that on the basis of insufficient medical information to decide the case one way or another, the pension was correctly cancelled.

7.      The Tribunal was satisfied that the only decision it had jurisdiction to review was that concerning the suspension of payments on 5 January 2000 (T6).  The decision to cancel the disability support pension was made on 15 September 2000 (T12).  This (second) decision has not been reviewed by an authorised review officer and the Tribunal is not satisfied that it can review this decision, however liberal a view is taken of jurisdiction.

8.      The decision concerning the suspension of the applicant’s pension on 5 January 2000 was reviewed by an authorised review officer on 24 February 2000.  This decision to affirm the suspension was sent to the applicant’s last known address in Rasmussen.

9.      As the Tribunal noted that the applicant told Centrelink on 24 January 2000 (T15) that she would be leaving for Papua New Guinea in the first week of February 2000, it would be usual for Centrelink to update the address record.  This did not occur.  The Tribunal asked Mr Ffrench to check whether the Centrelink officer who was regularly dealing with the applicant at this time, Ms T Potts, had a recollection of the applicant advising her address in Papua New Guinea.

10.     Mr Ffrench carried out those checks with Centrelink and told the Tribunal that Ms Potts no longer works at Centrelink, and could not be located.  He had checked the Centrelink computer system and confirmed that no update of the address screen was made around the time that the applicant wrote to Centrelink stating that she was leaving for New Guinea.

11.     The Tribunal was satisfied that the authorised review officer served the decision at T9 to the last known address that Centrelink had for the applicant.  The legislation has deeming provisions in this situation so that the person is taken to have been properly served with the decision. 

12.     Under the legislation the applicant had 13 weeks from the date of the authorised review officer’s decision on 24 February 2000 to seek review of that decision.  Even allowing some 5 days for service of that decision, the first request for review that the applicant has referred to in supplying her materials that form part of the documents before the Tribunal is a request made on 26 June 2000 which is outside of the time limits at which maximum arrears can be paid.

13.     Mr Ffrench agreed that the computer record of phone contact by the applicant from New Guinea, assisted by a consular officer at the Australian Consulate, dated 26 June 2000 is a request for review of the decision to suspend her pension (Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995) and that, in accordance with the provisions of the legislation, the decision already having been reviewed by an authorised review officer, it should have been forwarded to the SSAT when Centrelink received it.

14. Under the legislation, taking 26 June 2000 as the date of the valid application for review, pursuant to s154 read with s109 of the Social Security (Administration) Act 1999, the date of effect of a favourable determination where a person appeals out of time is the date on which the application for review was made.

15.     It is acknowledged by the respondent, as stated above, that the decision to suspend disability support pension was incorrect and must be set aside.  It can only be set aside, in the Tribunal’s view, from 26 June 2000.   The Tribunal decides that the applicant is to be paid disability support pension from 26 June 2000 to 15 September 2000, when the decision to cancel her disability support pension was made. 

16.     Mr Ffrench noted that after the decision to cancel the pension in September 2000 there were several requests by the applicant to have the decision to cancel reviewed and he noted that these should have been referred to an authorised review officer at that time.  He undertook to ensure that this will now happen.  Mr Ffrench also noted that there were several aspects of what may be defective administration that have occurred in regard to the decisions to suspend and then to cancel the applicant’s pension.  These, he said, may include that when she notified that she would be going to Papua New Guinea no change of address was noted on her record.  However, any matters in regard to investigating defective administration in the provision of Centrelink payments and services do not come within the jurisdiction of this Tribunal and they are a matter for the applicant to follow up separately with Centrelink, should she wish to do so.

17.     For these reasons the Tribunal sets aside the decision under review and substitutes the decision that disability support pension is payable to the applicant from 26 June 2000 to 15 September 2000.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  1 November 2004 (Townsville)
Date of Decision  1 November 2004 (Townsville)
The Applicant did not appear
For the Respondent                  Mr T Ffrench, Departmental Advocate