John Berenger and Secretary, Department of Social Services

[2013] AATA 896

[2013] AATA  896

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2572
Re	John Berenger
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date	12 December 2013
Date of written reasons	17 December 2013
Place	Sydney

The Tribunal affirms the decision under review.

.......[sgd].................................................................

Senior Member J Toohey

CATCHWORDS

SOCIAL SECURITY – carer allowance – applicant clamed not to have received letter notifying him of decision – deemed notification of refusal – applicant did not seek review within 13 weeks – subsequent claim for carer allowance granted – whether payment could be backdated – whether hearing should be postponed – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 2A, 33(1)(b) and 42A(2)

Social Security (Administration) Act 1999 ss 109(2), 41, 42 and Sch 2

REASONS FOR DECISION

Senior Member J Toohey

17 December 2013

BACKGROUND

1. Mr John Berenger has cared for his wife for many years.  On 8 January 2009, he made a claim for carer payment and carer allowance.  He was granted carer payment, but Centrelink decided he did not qualify for carer allowance. 

2. On 10 February 2009, Centrelink sent Mr Berenger a letter advising him that he did not qualify for carer allowance “because the medical information given to us indicates that [your wife’s condition] is not at the level that would qualify you for it”.  The letter was sent to Mr Berenger at the postal address he gave on his application form.  He did not seek review of the decision.  He says he did not receive Centrelink’s letter. 

3. Nothing further happened until 30 May 2012, when Mr Berenger contacted Centrelink to inquire about claiming carer allowance.  On 1 June 2012, he lodged a claim for carer allowance.  This time his application was successful and he was granted the allowance from 30 May 2012.

4. Mr Berenger says his payment should be backdated to 8 January 2009 when he made his first application.  Centrelink and the Social Security Appeals Tribunal (SSAT) have decided that Mr Berenger’s payment cannot be backdated.  I am satisfied that decision is correct.

5. The following reasons reflect reasons given orally at a hearing on 12 December 2013. I have referred to the respondent throughout as “Centrelink” as that is the name by which the respondent is commonly known in social security matters.

   SHOULD THE TRIBUNAL HEARING HAVE BEEN POSTPONED?

6. On 3 September 2013, the Tribunal wrote to Mr Berenger advising that his application had been listed for hearing at 10.00am on 12 December 2013.

7. On 29 October 2013, Mr Berenger sent the Tribunal an email saying “for a number of reasons” he wanted the hearing postponed until the end of April 2014 or after the third week of May 2014.  He said he was without legal aid; his wife was not well and had a number of visits to the dentist for surgery; she had been on a waiting list for a hospital bed since January 2013 and was expecting a phone call from the hospital “any time now”; and he would need to care for her while she was recovering.

8. Mr Berenger’s letter did not explain why he could not attend the hearing on 12 December 2013.

9. On reviewing Mr Berenger’s file, it was apparent that his application came down to the following questions:

   (i)whether he was taken to have received the letter notifying him of the decision in February 2009 to refuse him carer allowance;

   (ii)if so, and given that he had not sought review within 13 weeks of the decision, whether there is any way that his payment could be backdated.

10. As the answers to both those questions depend on what the relevant legislation provides, I decided that the hearing should proceed on 12 December 2013 and that Mr Berenger should be given options as to how he might participate.

11. On 26 November 2013, after a member of staff had spoken to him by telephone, the Tribunal sent Mr Berenger an email confirming that the hearing would proceed and he could attend by telephone.  He was advised that, if he was unable to take part in the hearing on that day, he should provide a medical certificate stating why he could not attend, in which case the hearing could be relisted to the first week of February 2014.  The email further advised that, if he did not attend, either in person or by telephone, and there was no medical certificate to explain his absence, the Tribunal might dismiss his application for non-appearance.

12. On 5 December 2013, the Tribunal sent Mr Berenger a letter by post and email confirming that the hearing would not be vacated, that it should not take longer than approximately 30 minutes, and he could participate by telephone.  The letter further advised that he was not obliged to participate but the Tribunal was likely to make a decision on that date and, if he did not participate, any decision would be put in writing and sent to him.

13. On 6 December 2013, the Tribunal received an email from Mr Berenger to the effect that he was unrepresented, and Australia is “supposed to be a democratic country”.  On the same day, the Tribunal replied confirming that the hearing would proceed on 12 December 2013 and the Tribunal would telephone Mr Berenger at 10.00am that day; further, that the Tribunal appreciated he was not represented and would do its best to assist him at the hearing and answer any questions.  Mr Berenger sent a brief, somewhat abusive, email in reply.

14. Late on the evening of 11 December 2013, the Tribunal received an email from Mr Berenger’s address stating:

    Please be advised..that John Berenger as theresas carer..would need to be excused from this thursdays hearing dated 12^th of December 2013..as I..will be away for most of the day.engaging in an 80..kilometre..trip..to take meet with theresas..surgeon..specialist..as she had a quite serious operation..only just a few short weeks ago. (sic)

15. On the morning of 12 December 2013, Mr Berenger telephoned the Tribunal and said he would not be attending as he was taking his wife to a doctor’s appointment.  He also sent an email saying he was unable to attend the hearing; he said he had a phone call from his local Member of Parliament “some three weeks ago” advising him that he had contacted Centrelink and been advised that Centrelink’s representative had no objection to the hearing being postponed and he would be receiving a letter of confirmation to this effect.

16. I decided that the hearing should proceed, and I would hear from Centrelink’s representative and decide what course was most appropriate.

17. I understand from Ms Martini, who appeared for Centrelink at the hearing, that she was the person who spoke to Mr Berenger’s Member of Parliament.  She says she advised that Centrelink had no objection to the postponement but did not say this would be confirmed in writing.  This would have been consistent with written advice from Centrelink to the Tribunal when Mr Berenger’s request to postpone the hearing was first received, that Centrelink did not object to a postponement. 

18. Whether a respondent agrees to, or opposes, an adjournment is one matter to be taken into account but it is not determinative.  In this case, the fact that Centrelink does not object to a postponement means no more than that.

19. The Tribunal is required to provide a mechanism of review that is fair, just, economical, informal and quick, and proceedings must be conducted with as much expedition as the requirements of the law and a proper consideration of the matter permit: Administrative Appeals Tribunal Act 1975, ss 2A, 33(1)(b) (the AAT Act).

20. I am satisfied that Mr Berenger has had ample notice of the date of the hearing and of what was likely to take place on that day.  Centrelink posted a Statement of Facts and Contentions to him on 15 November 2013 setting out relevant background, legislation, and submissions.  I accept that such documents are not always easy for a lay person to follow but I am satisfied that Mr Berenger is well aware of what is to be decided in this case.  He was advised in good time that he could attend the hearing by telephone if he wished.  He was also advised that a medical certificate would be required if he could not attend for medical reasons.  It is not clear whether the email received on 11 December 2013 purports to be a medical certificate but, plainly, it is not.  Mr Berenger has not filed any further documents in response to the conference registrar’s direction, and there is no reason to think that he has further documents that might bear on his application.

21. In all the circumstances, I am satisfied that Mr Berenger has had ample opportunity to participate in the hearing but has declined to do so.  I am satisfied that his application should be determined in his absence.

22. I have considered whether Mr Berenger’s application should be dismissed under s 42A(2) of the AAT Act for failure to appear but have decided against doing so because proceeding in his absence gives him the benefit of reasons for affirming the decision under review.

    THE LEGISLATION

23. A person who is not satisfied with a decision by Centrelink must seek review of that decision within 13 weeks. If a person seeks review after 13 weeks, then a favourable decision can only take effect from the date of the application for review: s 109(2) of the Social Security (Administration) Act 1999 (the SSA Act).

24. Strictly speaking, Mr Berenger has never sought review of the decision made on 10 February 2009 and that decision has not been reviewed in the sense that Mr Berenger’s eligibility for carer allowance at that time has not been tested. It appears that Centrelink treated his application in May 2012 as an application for review, determined that he qualified for the payment from the date of his new claim, and paid him accordingly. However, it makes no difference to the outcome whether it was a new application for carer allowance or an application for review of the earlier decision. If it was a new application, payment could not start any earlier than the date of the application: ss 41 and 42 and Sch 2 of the SSA Act. If it was an application for review, then a favourable outcome could also only take effect from that date because it was outside the 13 week period.

25. If Centrelink sends notice of a decision by a properly addressed, pre-paid and posted letter to the person’s last known postal address, the person is taken to have received it when it would have been delivered in the ordinary course of post unless the contrary is proved: s 237 of the SSA Act.

    REASONS

26. Centrelink has provided a computer generated copy of its letter to Mr Berenger dated 10 February 2009.  Centrelink has not provided a copy of the original letter or the envelope, and, strictly, there is no proof that it was posted on that date.  However, I have no reason to doubt that it was stamped and posted in the same way that Centrelink sends numerous letters every day.

27. The effect of the legislation is that Mr Berenger is taken to have been notified of the decision to refuse his claim for carer allowance when the letter would have been received in the ordinary course of the post.  Allowing a generous seven days for delivery, he is taken to have received it by 17 February 2009.  He had until 19 May 2009 to seek review.  Once that time had passed, then the best he could hope for was a favourable review at some point, and payment from the date of his application for review.  As it was, he did not contact Centrelink again until 30 May 2012. 

28. Unless the contrary can be proved, Mr Berenger is taken to have received Centrelink’s letter in February 2009.  Of course, it is difficult to prove a negative but examples could be if the letter was shown to have been incorrectly addressed, or sent without being pre-paid, or if Centrelink records suggested that it had not been sent at all.  There is no evidence to suggest any of those things occurred.

    CONCLUSION

29. The claim form for carer payment and carer allowance is confusing, at least in the form it was when Mr Berenger applied in 2009.  The claim for both payments was made on the one form and it is possible that Mr Berenger did not appreciate, when he was granted carer payment, that he had been refused carer allowance (which is the lesser of the two).  That does not change the fact that he was sent a letter advising him clearly that he did not qualify for the carer allowance.   

30. Mr Berenger is deemed to have received Centrelink’s letter dated 10 February 2009 refusing his claim for carer allowance.  He did not seek review within 13 weeks.  His payment cannot be backdated to a date earlier than 30 May 2012.

31. For these reasons I affirm the decision under review.

I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

.......[sgd].................................................................

Associate

Dated 17 December 2013

Date of hearing	12 December 2013
Applicant	Absent
Solicitors for the Respondent	Ms K Martini, Department of Human Services, Program Litigation and Review Branch