Johnson and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1535
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600912
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT JOHNSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD Date 11 July 2007
Place Brisbane
Decision I affirm the decision under review.
............[Sgd]...............
Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether applicant was given notice of the decision to reject his initial claim for pension – whether applicant can be paid age pension prior to his successful claim for age pension – decision affirmed
Social Security Act 1991 s 43
Social Security (Administration) Act 1999 s 36, 107, 237REASONS FOR DECISION
11 July 2007 Senior Member P McDermott, RFD Introduction
1. I have to decide whether Mr Robert Johnson is entitled to be paid age pension prior to the date of his successful claim for age pension. Mr Johnson had lodged an earlier claim for age pension which had been rejected because he had not provided Centrelink with all of the financial information which was required to consider his claim. However, Mr Johnson did not receive notice of the rejection of that earlier application. I have to essentially decide whether the social security legislation enables a claim for age pension to be “backdated” to an earlier date when he lodged an unsuccessful claim for age pension when he was at that date entitled to be paid age pension.
PRIOR DECISIONS
2. On 19 October 2005 Centrelink made a decision to reject a claim for age pension that Mr Johnson had lodged on 4 October 2005. On 19 October 2005 Centrelink had advised Mr Johnson by letter that his claim had been rejected because of his failure to lodge requested information being income tax details and the Module F (Business Details) form. Mr Johnson states that he never received that letter.
3. On 24 May 2006 Mr Johnson had lodged a further claim for age pension [T19] together with a completed Module F (Business Details) form [T18] and a completed Income and Assets form [T19]. Centrelink granted age pension to Mr Johnson from 24 May 2006 [T16]. Mr Johnson has sought a review of that decision so that he could be paid age pension from the date when he lodged his original claim.
4. On 17 November 2006 the Social Security Appeals Tribunal affirmed the decision of Centrelink.
5. On 13 December 2006 Mr Johnson made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal
RELEVANT LEGISLATION
6. The entitlement to a disability support pension is conferred by s 43 of the Social Security Act1991 (“the Act”). It is common ground that Mr Johnson is entitled to receive the age pension.
7. The Secretary is required to determine a claim for a social security payment in accordance with the provisions of the Social Security Administration Act 1991 (“the Administration Act”).
8. The Administration Act provides that a person must make a claim to be eligible for a social security payment (s 11). The Administration Act provides that the Secretary must, in accordance with social security law, determine a claim by either granting the claim or rejecting the claim (s 36(1)).
9. The Administration Act also provides that, subject to s 40 of that Act, which is not material in this application, the Secretary must grant a claim if the Secretary is satisfied that the claimant is qualified for the social security payment and the social security payment is payable (s 37(1)).
10. The time when a determination of the Secretary under s 37 of the Administration Act takes effect is provided for in s 107 of the Administration Act. A social security payment would ordinarily take effect on the “start day” (s 41). The “start day” is calculated in accordance with Schedule 2 of the Administration Act (s 42). Clause 3 of Schedule 2 provides that if a person makes a claim for a social security payment and the person is qualified for the payment on the day when the claim is made; that person’s “start day” in relation to the payment is the day on which the claim is made.
11. In the event that a claim is rejected by the Secretary, it is necessary to have regard to s 107 of the Administration Act. If an applicant does not receive notice of a decision to reject a claim, then if, upon an application for review, a decision is made that a claim be granted; then the decision can take effect from the date of the original decision (s 107(4)).
12. The Administration Act also sets out how notices are to be given (s. 237). In particular, notice of a decision can be given by prepaid post (s237 (2)). If a notice of a decision is given by prepaid post then the notice is taken to be given to a person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved (s 237 (3)).
HISTORY OF THE MATTER
13. Mr and Mrs Johnson gave evidence in support of the application. Mr Johnson contacted Centrelink on 26 September 2005 to register a claim for age pension. On 4 October Mrs Johnson lodged the claim for age pension with Centrelink. An officer of Centrelink spoke with Mrs Johnson on 19 October 2005 to advise her that she would need to lodge further information in support of the claim (ie, recent tax return and a rates notice). It is obvious that the officer thought that that the information would be made available within the next few weeks, and that his discussion with Mrs Johnson to the effect that the provision of the additional information would be treated as a request for the reconsideration of the decision. The Centrelink records the following notation: “requested info will be made available within the next few weeks. Customer has requested reconsideration (see rej doc)”.
14. Mrs Johnson has also made a diary entry in respect of that telephone conversation of 19 October 2005. Mrs Johnson made the following notation in the diary: “John Centrelink re Pension app. Missing info next few weeks? Maybe. If not what? Start again – Computers?!!” [ex A 1].
15. I accept the evidence of both Mr and Mrs Johnson that the conversation with the Centrelink officer occurred when they were both busy working their rural property. This was at a time when stone fruits were in season. Mr Johnson had emphasised the need to pick the fruit, this was an urgent task that had to be done. Once the fruit was picked it then had to be sold. Some of that fruit was then sold by the Johnsons in a retail outlet.
16. Although the stone fruit season was a busy time for the Johnsons, I nevertheless have a clear impression (which is fortified by a perusal of the diary note of Mrs Johnson and the Centrelink record) that the Centrelink officer expected the requested information to be provided within a “few weeks”.
17. If the requested information had indeed been provided within a “few weeks” then it would have been open to Centrelink to treat the provision of such information as a request for reconsideration. This is because the information would have been provided within the 13 week period which is prescribed under s 107(2)(c) of the Administration Act.
18. I accept the evidence of Mrs Johnson that she did not fully appreciate the ramifications of the telephone conversation that she had with the Centrelink officer. At the hearing she reiterated her concerns as to why she would need to lodge a new form when the details would be stored in a computer.
19. The possibility of Mr Johnson being required to complete a new claim form if the required information was not provided was something that I believe Mrs Johnson had appreciated when she made the following notation in the diary: “Missing info next few weeks? Maybe. If not what? Start again”. The reference to “Start again” is evidence that the Centrelink officer had informed Mrs Johnson of the need to lodge a new claim if the required information had not been provided.
20. The requirement of an applicant in these circumstances to again lodge a new claim form is not merely a matter of duplicating information which is already provided to Centrelink. It ensures that an applicant provides up-to-date information to Centrelink as the circumstances of an applicant can change. What is also important is that the new claim form is verified by a declaration of an applicant.
21. I consider that after the telephone conversation of 19 October 2005 it would be apparent that Mr Johnson would not receive the age pension to which he was undoubtedly entitled unless and until the additional information which was requested by the Centrelink officer was provided.
22. I appreciate that one of the requested documents was a rates notice which Mrs Johnson could not provide because, as I understand the position, the process of the registration of subdivisional documents was not complete. However, the existing subdivisional documentation could have been provided to Centrelink to explain the position.
23. The income tax return of the Johnsons had yet to be lodged because their accountant did not have the required information about some investments. It was not apparent why this investment information was not available.
24. Even though Centrelink made the request for the additional information on 19 October 2005 the required information was not provided to Centrelink until 24 May 2006. The income tax returns for the 2004/2005 financial year were completed on 17 January 2006. The supplementary rates notice was received on 24 January 2006. On 13 February 2006 Mr Johnson had completed the required Module F (Business Details) form. That form bears his signature on that date [ex. A, fol 148]. Mr Johnson in oral evidence confirmed that the Module F (Business Details) form was lodged with his claim form on 24 May 2006.
25. At the hearing I asked Mr Johnson why he had delayed sending the Module F (Business Details) form until May 2006. Mr Johnson explained that he understood that his claim to pension could be backdated: he mentioned a case where this had indeed occurred. Mr Johnson also explained that he was not concerned to make any enquiries for some time with Centrelink because his claim to pension could be backdated. However, the scheme of the legislation which binds both the Secretary and this Tribunal is such that a new claim would indeed have to be lodged unless the claim could be reconsidered under some ameliorating provision such as s 107 of the Administration Act.
26. There are indeed provisions in the social security law which enable the “backdating” of a claim to pension. I have already mentioned that this can be done under s 107(4) of the Administration Act where an applicant has not received notice of a decision to reject a claim. Mr and Mrs Johnson have contended that this is such a case. They have both given sworn evidence that they did not receive the letter of 19 October 2005. I accept their evidence as being truthful in that regard. Indeed, if they had received the letter of rejection it would be reasonable to infer that they would have contacted Centrelink before 24 May 2006. However, that date is the first occasion when they contacted Centrelink after the rejection of their claim.
27. The material was tendered before me as to the procedure of the Output Management Team which is responsible for the printing and mailing of letters and forms sent to Centrelink customers in Queensland. An officer of the Output Management Team made a statement on 23 March 2007 in which he stated it was “likely” that letters dated 19 October 2005 formed part of batch 35366 and that batch comprised 19,899 letters which were printed on 20 October 2005 and lodged with Australia Post on 21 October 2005. The officer in his statement also confirmed that the batch did not contain any “spoils” or letters which were damaged by machinery: see statement 23 March 2007 [ex. R 1].
28. At the hearing of this application I stated that I was not satisfied that the statement of 23 March 2007 was sufficient proof that the letter of 19 October 2005 had indeed been sent to Mr Johnson. This is because there was no material before me to show that a letter that was generated on 19 October 2005 would be part of a batch that was printed on the next day.
29. The officer has now made a further statement of 4 April 2007. In that statement he now “states with certainty that a letter generated on 19 October 2005 would not have been printed any earlier than 20 October 2005”. The officer has also clarified that the batch of letters which were generated on 20 October 2005 being batch 35385 does not contain any spoils. The officer also confirmed that the letters which generated on 24 October 2005 had seven spoils; there were accordingly seven remakes which wee printed and lodged on 26 October 2006.
30. Having regard to the new statement of 4 April 2007 I am now satisfied that the letter of 19 October 2006 was indeed posted to Mr Johnson. The Administration Act provides that if a notice of a decision is given by prepaid post then the notice is taken to be given to a person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved (s 237 (3)). The officer has stated that in the ordinary course of the post the letter would have been delivered from Sydney to Mr Johnson’s address about three days after it was lodged with Australia Post. On this basis the letter would have been delivered to Mr Johnson some three days after it was lodged with Australia Post on 21 October 2005. It would on that basis have been delivered by 25 October 2005. There is no contrary evidence before me that displaces the effect of s 237(3) of the Administration Act.
31. In the circumstances s 107(4) of the Administration Act can have no operation. That paragraph can only have application if an applicant does not receive notice of a decision to reject a claim. Having regard to the operation of s 237 of the Administration Act the decision to grant Mr Johnson a pension cannot take effect from the date of the original decision.
32. It is clear that Mr Johnson does not agree with the policy underlying s 237(3) of the Administration Act. However, this Tribunal has the duty to apply the social security legislation which has been enacted by the Parliament.
33. Mr Johnson also has a concern that the advocate for the Secretary has questioned the credibility of himself and his wife. This has in fact never occurred at any stage in the proceedings. In fact the advocate for the Secretary has stated: that “the Respondent does not question the credibility of either the Applicant or Mrs Johnson”: see submissions, 24 April 2004, para. 51.
DECISION
34. I affirm the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD
Signed: J Lauriston
for AssociateDate/s of Hearing 3 April 2007
Date of Decision 11 July 2007
The Applicant was self represented
For the Respondent Ms K Hamilton, Departmental Advocate
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