Jin Guan and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 145
•7 March 2012
[2012] AATA 145
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2744
Re
Jin Guan
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 7 March 2012 Place Sydney The Tribunal sets aside the decision under review and instead decides that Mrs Guan should be paid pharmaceutical allowance from 1 February 2011.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – benefits and allowances – pharmaceutical allowance – Newstart Allowance – entitlement – effective notice –- defective administration – date of effect to pay arrears – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth), ss 593, 1068
Social Security (Administration) Act 1999 (Cth), s 109
CASES
SDFaCS v Laurent (2003) FCA 1017
REASONS FOR DECISION
Ms N Bell, Senior Member
7 March 2012
When Mrs Jin Guan commenced to be paid Newstart Allowance as a single person with a dependent child in January 2009, Centrelink failed to pay her the pharmaceutical allowance she was entitled to, nor did it give her a specific notice of a decision to not pay her pharmaceutical allowance. Rather, the notice, on 17 February 2009, of the component payments in her Newstart Allowance listed rent assistance and language literacy and numeracy supplement but failed to mention a pharmaceutical allowance.
In October 2010, Centrelink conducted a review of her rate of Newstart Allowance following her return from overseas and her request for restoration of Newstart Allowance. Again, Mrs Guan was not given any effective notice of Centrelink’s decision to start payment of pharmaceutical allowance and it was not until February 2011, when she received arrears of pharmaceutical allowance to 15 October 2010 that she was aware of her entitlement to pharmaceutical allowance at all. Mrs Guan sought a review of the decision to pay her pharmaceutical allowance from 15 October 2010 because, understandably, she considered she should have been paid the allowance from January 2009 when she was first entitled to it.
An Authorised Review Officer decided to extend arrears of payment of pharmaceutical allowance to 15 July 2010. The Social Security Appeals Tribunal affirmed that decision. Mrs Guan maintained that she should be paid pharmaceutical allowance from January 2009.
In addition, Mrs Guan is concerned that Centrelink did not give her a pensioner concession card until October 2010. I note, however, that there has been no internal review of any decision concerning the pensioner concession card and no review by the Social Security Appeals Tribunal of any such decision. It follows that there is no reviewable decision about the pensioner concession card before this Tribunal. I also gained the impression from Mrs Guan that the failure of Centrelink to provide her with the card prior to October 2010 is now her main concern.
ISSUES
The sole issue for me to consider is the date from which Mrs Guan should be paid arrears of pharmaceutical allowance. This question involves considerations of when Mrs Guan received notice of a decision to not pay her pharmaceutical allowance, when she requested a review of any such decision and the operation of section 109 of the Social Security (Administration) Act 1999 (Cth).
There has been some endeavour on the part of the Secretary to address Mrs Guan’s concerns by way of compensation for defective administration. This Tribunal has no determinative role in relation to this. However, by way of recommendation later in these reasons, I encourage the Secretary to continue with his endeavours.
FROM WHICH DATE SHOULD MRS GUAN BE PAID ARREARS?
Section 109 of the Administration Act provides for the date of effect of a favourable decision on review as follows:
(1) 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) within 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 determination embodying the original decision took effect.
(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.
(3) 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.
Strictly, the notice given to Mrs Guan on 17 February 2009, in the form of an Income Statement, was notice of a decision, albeit an apparent oversight, to not pay her pharmaceutical allowance. I do not understand how a person can be apprised of a decision to not pay pharmaceutical allowance if the person does not know of the existence of the pharmaceutical allowance and the notice advising of the decision does not mention it. However, I am bound by the judgment of the Federal Court in SDFaCS v Laurent (2003) FCA 1017:
“30. Rent assistance is not a discrete sum of money payable under the Act as a pension, benefit or allowance. It is a notional amount to be added to a person’s maximum basic rate of pension, benefit or allowance to help cover the cost of rent. What is in fact payable and paid is the Newstart Allowance in a sum calculated in accordance with Benefit Rate Calculator B (s 1068) and that is the payment to which s 109(1) of the Administration Act applies.
The effect of this construction of Newstart Allowance is that no separate notification in relation to pharmaceutical allowance (or rent allowance) is required.
Clearly, not knowing of the decision, Mrs Guan did not request a review within 13 weeks and any decision on review that is favourable to her can only have effect from the date on which she finally did request a review (section 109(2)). The records show that she requested a review on 1 February 2011. Mrs Guan disputed this date and, at my request, the Secretary made further searches for occasions on which her file had been accessed in the relevant period. Nothing helpful was yielded by these searches and I am satisfied that no earlier request for review was made by her. I am also satisfied that the records do not show any request for review in relation to a pensioner concession card. In reaching this conclusion I am conscious of the difficulty Mrs Guan may have encountered in making herself understood to officers of Centrelink. Her English is limited and she relied on the assistance of an interpreter for the entirety of the hearing.
I note that the original decision was to pay arrears of pharmaceutical allowance to Mrs Guan from 15 October 2010, somehow backdating the effect of the decision by 13 weeks. On review, the Authorised Review Officer found that a Centrelink officer had made a decision on 15 October 2010 to pay pharmaceutical allowance to Mrs Guan. The Authorised Review Officer decided, on a basis that cannot be ascertained from her decision and reasons, to backdate the effect of that decision to 15 July 2010. I can see no basis for that decision to backdate and the Secretary, in this application, contends that section 109(2) was not correctly applied. I agree. However, I also note that the Secretary was content to leave the decision (which was affirmed by the Social Security Appeals Tribunal) undisturbed because “Mrs Guan would likely be compensated for this period through the Centrelink customer compensation scheme.” (Secretary’s Statement of Facts and Contentions) And so she should be, in my view.
However, it is poor practice to ignore the clear meaning of the statute and to misapply it to remedy an error in administration. Ms Guan should be paid arrears of the pharmaceutical allowance to which she has been entitled since January 2009, but it should be paid to her pursuant to the customer compensation scheme in recognition of Centrelink’s erroneous failure, and not by a bending of the law, no matter how sympathetic.
The provisions of section 109(2) of the Administration Act dictate that Mrs Guan should be paid pharmaceutical allowance from 1 February 2010. I must set aside the decision under review and substitute a decision accordingly. I strongly recommend that Centrelink’s erroneous failure to pay her the allowance from January 2009 be remedied in full by way of the customer compensation scheme.
As for Mrs Guan’s pensioner concession card, I note that the Secretary has had correspondence with her concerning a claim for compensation in relation to the failure to provide her with the card to which she was entitled. I also note that compensation for this is difficult to quantify and must depend in part on whatever information Mrs Guan can give to the Secretary to support her claim for loss as a result of not having the card. In spite of her understandable exasperation with Centrelink, I encourage Mrs Guan to do all she can to gather as much information as possible to support her claim. I encourage the Secretary to recognise that it is difficult for Mrs Guan to obtain some of the information requested of her. I further encourage the Secretary to apply some ingenuity to the calculation of the inevitable loss that accrued to Mrs Guan as a result of being denied the concession card to which she was clearly entitled.
This is a most unfortunate case of rolling administrative error. The customer compensation scheme is an avenue by which it may be properly addressed. In my view, the Secretary should take a particularly sympathetic and helpful approach to the consideration of Mrs Guan’s claims for compensation.
DECISION
The Tribunal sets aside the decision under review and instead decides that Mrs Guan should be paid pharmaceutical allowance from 1 February 2011.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
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Associate
Dated 7 March 2012
Date of hearing 2 November 2011 Date final submissions received 13 January 2012 Applicant In person Solicitors for the Respondent Biljana Salaji
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