Kakias; Department of Family and Community Services
[2006] AATA 345
•11 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 345
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1288
GENERAL ADMINISTRATIVE DIVISION ) Re
Department of Family and Community Services
Applicant
And
Monte Kakias
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date11 April 2006
PlaceSydney
Decision The decision under review is affirmed, that is, Mr Kakias’ aged pension is payable for the period 17 November 2004 to 30 May 2005.
[Sgd] Ms N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY – age pension – decision under review a decision where the Social Security Appeals Tribunal set aside Centrelink’s decision to refuse payment of arrears of age pension for specified period – consideration of whether the Applicant is entitled to back payment of age pension – review of legislative provisions - consideration of evidence – decision under review affirmed.
LEGISLATION
Social Security Act 1991 – section 55, 1064
Social Security Administration Act 1999 – section 109CASE LAW
Peura and Secretary, Department of Family and Community Services [2003] AATA 1123
Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185
Austin and Another v Secretary, Department of Family and Community Services (1999) 57 ALD 330REASONS FOR DECISION
11 April 2006 Ms N Isenberg, Member DECISION UNDER REVIEW
1. The decision under review is a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 5 September 2005 to set aside Centrelink’s decision to refuse payment of arrears of age pension for the period 17 November 2004 to 30 May 2005.
BACKGROUND
2. Mr and Mrs Kakias were receiving age pension and this continued while they were overseas from 15 May 2004 (T5). On 30 October 2004 they returned to Australia (T2, p3).
3. On 10 November 2004 Mrs Kakias contacted Centrelink and it was recorded that only she had returned to Australia on 30 October 2004 (T7).
4. On 15 November 2004 Mr Kakias was sent a letter that his rate of pension would be $189.95 per fortnight and that this would take effect from 2 December 2004 (T8). However, it was not until 31 May 2005 that Mr Kakias contacted Centrelink to query the amount of his pension and seeking a review of the decision to reduce his rate of pension. His pension rate was increased from this date (T9).
5. On 8 June 2005 that Mr Kakias requested a review of the decision not to pay arrears of age pension back to 17 November 2004 (T10), but the decision was unchanged. Mr Kakias appealed to the SSAT. That Tribunal decided that arrears of age pension were payable to Mr Kakias because he was not given proper notice of the decision to reduce his pension. Therefore, subsection 109(3) of the Social Security Administration Act 1999 applied and the date of effect of the favourable determination is the day on which the original decision took effect, that is, 17 November 2004 (T2).
ISSUE BEFORE THIS TRIBUNAL
6. The issue to be considered is whether Mr Kakias is entitled to back payment of age pension for the period 17 November 2004 to 30 May 2005?
LEGISLATION
7. The legislation relevant to Mr Kakias’ pension is contained in the Social Security Act 1991 (“the Act”).
8. Section 55 of the Act provides that a person’s age pension is worked out using the Pension Rate Calculator A at the end of section 1064 of the Act. Subsection 1064(1) of the Act provides that the rate of age pension is to be calculated in accordance with the rate calculator in sections 1064-A1 and 1064-A2 of the Act.
Reduction in Rate of Age Pension
9. Mr Kakias’ rate of age pension was reduced from 17 November 2004 because there was no evidence that he notified Centrelink of his return to Australia on 30 October 2004. As a result, his rate of age pension was reduced from $337.06 to $189.95 per fortnight from 17 November 2004 (T8).
Back payment of Age Pension
10. Section 109 of the Social Security Administration Act 1999 (“the Administration Act”) provides for the payment of arrears of a social security payment to a recipient. It provides as follows:
“Date of effect of favourable determination resulting from review
109.(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.
109.(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.
109.(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.”
THE HEARING
11. A hearing was held before me on 23 March 2006 at which Centrelink was represented by Mr G Richardson, an advocate at the Centrelink Legal Services Branch. Mr Kakias was self represented, but was assisted by an interpreter in the Greek language.
CONSIDERATION OF THE EVIDENCE
12. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
13. Mr Kakias told me that he had received age pension for about 7 years before he and his wife went overseas in May 2004. Prior to his departure they told Centrelink they would be away for about 3 months. He told me that he thought he received the letter of 15 November 2004. This contrasts with his evidence to the SSAT that he could not remember receiving it. He said that upon receipt of letters from Centrelink he reads them and obtains assistance from his niece or his son to explain a letter if he is having difficulty.
14. He said that “after a few weeks or pays” or several months after their return to Australia, his wife, who manages the finances but who had been very ill, noticed that his pension had been reduced. “Straight way” he contacted Centrelink. Centrelink’s files record that this was on 31 May 2005, and I accept this date as accurate as it is consistent with Mr Kakias’ evidence. Centrelink submitted that despite the letter of 15 November 2004, Mr Kakias could, at any time, have made enquiries with Centrelink to ascertain whether he was being paid his correct rate of age pension. He also could have checked his bank statements.
15. Centrelink contended that the decision of the SSAT that arrears of age pension were payable to Mr Kakias from 17 November 2004 to 30 May 2005 on the basis that he was not given proper notice of the decision to reduce his rate of pension, is incorrect. Centrelink contended that Mr Kakias was given notice of the decision to reduce his pension and by failing to request a review within 13 weeks of notification of the original decision to reduce his pension, he is not entitled to the arrears. Pursuant to subsection 109(2) of the Act, a favourable determination could only take effect on 31 May 2005, being the day on which Mr Kakias requested a review of the original decision.
16. The issue for determination, however, is whether the letter of 15 November 2004 constituted sufficient notice for the purposes of section 109 of the Administration Act.
17. The text of the letter was as follows:
“Your Age Pension Payment from 3/11/2004-16/11/2004 due on 18/11/2004
$337.06. Regular payment from payday 2/12/2004 Age Pension $189.95.
INFORMATION USED FOR CALCULATING YOUR REGULAR PAYMENT:
Combined Annual Income $33.72.
IMPORTANT INFORMATION: Your rate is worked out using the length of time that you and your partner have lived in Australia during your working life (between age 16 and age pension age), which is 145 months.”
18. In relation to such a letter, in the decision of Peura and Secretary, Department of Family and Community Services [2003] AATA 1123 the Tribunal commented that:
“The back of the letter then contains advice setting out the obligations of the recipient of the letter to notify Centrelink of relevant information, and the recipient’s rights, which include a standard paragraph commencing “If you do not agree with this decision…” and proceeds to refer to rights of review and appeal. The back of the letter contains some 10 paragraphs and a very detailed and formal statement of relevant matters.”
While the original letter cannot now be located it is likely to have been in a similar form to that in Peura (supra).
19. In Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185, to which I was referred, Cooper J held that the matter to be communicated by a notice (in a similar provision to section 109) was that there was the making of a decision in relation to a pension which is a reviewable decision. He stated at paragraph 33 and 35:
“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. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into the provisions of section 299.
The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.”
20. In Austin and Secretary, Department of Family and Community Services (1999) 57 ALD 330, to which I was also referred, Drummond J found that notice was constituted either by:
“… a clear statement by the [Department] that a decision has been made fixing the rate of payment of newstart allowance at a particular figure or that a decision has been made cancelling or suspending newstart allowance, as opposed to information from which an inference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a ‘notice’ within section 660K.”
21. However, Cooper J in Rogers observed in relation to that decision:
“Although our reasons are substantially similar in excluding any requirement to provide reasons or information of the type found by the AAT to be necessary to constitute an intelligible notice, I would not limit the content of the notice to a communication to the benefit recipient that a decision has been made to pay him or her a particular allowance at a particular rate. Although that may well be the most common decision, I do not read, for the reasons I have given, the words ‘a decision…is made in relation to a sole parent pension’ as being limited to a decision to pay the pension at a particular rate. Rather I construe the phrase as meaning any decision capable of review under section 1240 of the Act which, upon review, leads to a favourable determination under section 293.”
22. Further, Cooper J held:
“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; Nguyen v Refugee Review Tribunal (1997) 74 FCR 311(FC) at 320, 325, 332 citing with approval Goodyear Tyre and Rubber Co (GB) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857 at 863 and Cresta Holdings Ltd v Karlin [1959] 1 WLR 1055 at 1057-1058. However, notice requires that the matter of which a person is to have notice must be brought clearly to the person’s attention: Goodyear Tyre and Rubber Co at 863; Austin at 146 - 147.”
23. Centrelink contended that the wording of the letter to Mr Kakias was clear and unambiguous in demonstrating that a decision had been made and in providing the content of that decision. The letter recorded that an amount of $337.06 was payable on 18 November 2004 for the period 3 November 2004 to 16 November 2004. It was submitted that this was a statement of the rate at which he had previously been paid. The letter then recorded that a regular amount of $189.95 would be payable from payday 2 December 2004. Centrelink submitted that in accordance with Austin it had provided a clear statement of the rate fixed for his pension payment. I accept this latter contention, as far as it goes, in that it is clear from the letter that the regular rate of payment from 2 December 2004 was to be $189.95.
I do not agree, however that the statement: “Your Age Pension Payment from 3/11/2004 – 16/11/2004 due on 18/11/2004 $337.06” shows that this was the previous regular rate. It notes only, in my view, what was payable for the period mentioned. Perusal of the payments made to Mr Kakias from 29 July 2004 (T16, p37) show that it was only in respect of that fortnight that Mr Kakias was paid that amount. It could not be described in any way as a ‘regular’ payment in that amount.
24. I agree that, in accordance with the principles in Rogers, there was no requirement for Centrelink to advise Mr Kakias of the reasons for the decision. It was contended that Mr Kakias was provided with sufficient information to enable him to decide whether to seek review of the decision and he was clearly notified that if he did not do so within 13 weeks, he could only receive arrears from the date he sought review.
25. This matter differs from Rogers, however. In that case, the letter said:
“Your pension has reduced because of a change in your circumstances.”
26. Cooper J, in finding that the letter did constitute “notice” noted:
“[39] …The sentence “Your pension has reduced because of a change in your circumstances” conveys to the reader that a decision has been made to reduce her pension to the stated amount for the stated reason...
[40] Any reasonable recipient in the position of Mrs Rogers would know upon reading the letter that a decision had been made to reduce her SPP to $153.70 per fortnight from 8 April 1993 because the decision-maker believed that there had been a change in her circumstances which required a reduction in the pension. The letter provided sufficient information to enable Mrs Rogers to make a decision whether or not to seek review of the decision if she thought it was wrong.”
27. In Austin, the letter commenced:
“As a result of a recent reassessment of your spouse’s PA…”
28. Peura (supra) even though there was a history of correspondence between Centrelink and the applicant about her family trust, the letter in question made no reference to issues associated with the trust and, essentially, the letter looked like a pro forma Centrelink letter. In that decision the Tribunal, after reviewing Rogers (supra) and Austin (supra) commented that:
“37.…the correct approach in considering whether the letters relied upon constitute notice of the relevant decision may be summarised as follows:
* the Tribunal should identify the decision of which notice is to be given;
* the letters should be construed objectively;
* the letters should be intelligible, that is they should inform the recipient of the making of the decision and the content of it;
* where the rate of pension is changed as a result of changed circumstances or the manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision; and
*the letters need not advise the reasons for the decision.”
29. In both Rogers (supra) and Austin (supra), the letters referred to a change of circumstances or the manner in which those circumstances are assessed.
30. This is not the case in the present matter. The letter did not inform Mr Kakias why the pension had been reduced, that is, there was no reference to a change in circumstances or status. Even accepting Centrelink’s view that the two different figures mentioned informed him there was a change in rate of payment, that was the only information provided. Mr Richardson said, and I accept that the rate was reduced because Centrelink, erroneously, believed Mr Kakias to still be overseas and therefore not entitled to pension at the full rate of pension. Nowhere in the document though would this have been apparent to Mr Kakias. Had the letter contained even a passing reference to a change in circumstances in accordance with Rogers and Austin, Mr Kakias would have been alerted to the fact that Centrelink’s decision to reduce his pension had been made on a false premise. This is not a requirement for reasons, but is merely necessary, in my view, to provide some information as to the context of the decision, so as to make it intelligible.
31. I note, in that regard that Cooper J said;
“The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information to be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.”
32. On Mr Kakias’ evidence, which was not disputed, he generally sought assistance in reading Centrelink documents. Even a thorough translation would not have provided the clue as to why the change occurred. I do not accept that the reference to the number of months worked in Australia, which Mr Richardson told me had some bearing on the rate at which pension is paid while recipients are overseas for extended periods, would have alerted Mr Kakias.
33. While the letter provided extensive information about appeal rights, this was of little utility when there was no clear indication about what Mr Kakias was entitled to appeal, especially in circumstances where he understood his wife to have already told Centrelink of their return to Australia.
DECISION
34. The decision under review is affirmed, that is, Mr Kakias’ aged pension is payable for the period 17 November 2004 to 30 May 2005.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: Associate
Date of Hearing 23 March 2006
Date of Decision 11 April 2006
Advocate for the Applicant Mr G Richardson
Representative for the Respondent Mr M Kakias
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