Khan and Secretary, Department of Social Services (Social services second review)

[2022] AATA 381

Khan and Secretary, Department of Social Services (Social services second review) [2022] AATA 381 (8 March 2022)

Division:GENERAL DIVISION

File Number(s):2021/2204      

Re:Jasmin Khan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:8 March 2022  

Place:Sydney

The decision dated 2 March 2021 is affirmed.

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Mr S Evans, Member

CATCHWORDS

FAMILY ASSISTANCE AND SOCIAL SECURITY – parenting payment – whether the applicant is eligible to be paid arrears – decision to cancel in error – appeal not lodged within 13 weeks – decision under review affirmed.

LEGISLATION

Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

Mr S Evans, Member 

8 March 2022

INTRODUCTION

1. The applicant, Jasmin Khan, was in receipt of Parenting Payment Partnered (‘PPP’) which was cancelled by the Department of Social Services (‘the Agency’) as of 22 June 2015. Mrs Khan seeks to be paid arrears of PPP as the decision to cancel the payment was in error. The Secretary of the Department of Social Services (‘the Secretary’) concedes Mrs Khan’s PPP should not have been cancelled at the time, but contends arrears are not payable as she did not seek review within 13 weeks of the decision being made. 

   BACKGROUND

2. Mrs Khan is the mother of three children who I will refer to as Child A, Child B and Child C, who were born in 2007, 2009 and 2014 respectively. 

3. On 21 September 2014 (the day Child C was born) Mrs Khan lodged an application for PPP. PPP is an income support payment for parents who are members of a couple who have sole or primary responsibility for the care of a young child under the age of 6.

4. On 9 June 2015 the Department of Social Services notified Mrs Khan that her PPP had been cancelled from 22 June 2015 (‘the cancellation decision’). The notice advised the payment had been cancelled as Mrs Khan no longer had a dependent child under 6 living with her.

5. On 8 September 2020 Mrs Khan sought review of the cancellation decision. On 6 October 2020 an Authorised Review Officer (‘ARO’) at the Agency wrote to Mrs Khan stating that having reviewed the decision to cancel her PPP from 22 June 2015, she had found that Mrs Khan ‘continued to qualify for Parenting Payment after 22 June 2015’.

6. However, the ARO wrote, ‘as you requested the appeal on 8 September 2020, outside of the required 13 week period, we cannot issue you any back pay’. 

7. On 30 October 2020, Mrs Khan sought review of the ARO decision at the Social Services and Child Support Division (‘AAT1’) of the Tribunal. On 2 March 2021 the AAT1 determined that the Agency’s decision to cancel Mrs Khan’s PPP from June 2015 was incorrect, but that she was not entitled to arrears of PPP as she had not sought review of the original decision within 13 weeks of being notified of the decision on 9 June 2015.

8. Mrs Khan now seeks review of the AAT1 decision at the General Division of the Tribunal. 

   RELEVANT LEGISLATION

9. The legislation relevant to this application is contained in the Social Security Act 1991 (Cth) (‘the Act’), the Social Security Administration Act 1999 (Cth) (‘the Administration Act’) and the Acts Interpretation Act 1901 (Cth) (‘the Interpretation Act’).

10. The Social Security Guide (‘the Guide’) provides departmental policy relating to applications for PPP. The Tribunal will usually apply departmental policy unless there are cogent reasons not to do so. 

    ISSUE

11. The sole issue for determination is whether Mrs Khan is entitled to be paid arrears of PPP.

    EVIDENCE

12. The Secretary accepts that the cancellation of PPP from 22 June 2015 was in error on the basis of Mrs Khan being the principal carer for Child C, who was at that time approximately one year old. Being under six years of age and Mrs Khan his principal carer, she was at that time eligible for PPP. The error occurred because Child C’s details had been incorrectly recorded on Mrs Khan’s Agency record. 

13. On 9 June 2015 Mrs Khan was sent notification that her PPP was being cancelled. In cross-examination she confirmed that she recalls receiving the letter and reading it. The letter advised her that if she disagreed with the decision to cancel her PPP, she should contact the Agency as soon as possible as ‘[i]t is important to ask for a review within 13 weeks of being notified about the decision’. Further, ‘[if] your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review’.

14. At the hearing Mrs Khan gave evidence that she sought review within the 13 week period specified in the notification as she knew she was eligible for PPP on account of Child C.

15. She told the Tribunal that following the cancellation decision, she attended the Campsie Centrelink where she was told she was ineligible for PPP. When questioned by the representative of the Secretary, Mrs Khan was unable to be certain about the date of her visit. It was her recollection, however, that she and her husband walked into the Centrelink office without an appointment and Mr Khan spoke to a male customer service officer on her behalf.

16. The Agency has no record of contact by Mrs Khan via a Centrelink office during the 13 weeks following the notification of the cancellation of her PPP. Mrs Khan does not appear to have raised the visit previously with either the ARO or at the AAT1.

17. On 9 February 2016, Mr Khan contacted the Agency querying the cancellation of Mrs Khan’s PPP. As Mr Khan did not have permission to make enquiries on behalf of Mrs Khan, he was advised that a new claim would be required if payment had been cancelled more than thirteen weeks in the past. Mr Khan told the Agency he would notify Mrs Khan to make contact with the Agency about her PPP and shortly after, on 11 February 2016, she submitted a new claim for PPP. 

18. The day after she submitted her new claim, the Agency sent Mrs Khan notice requiring her to complete a Module F-Business Details form and submit supporting documents including her husband’s personal tax returns by 24 February 2016. Mrs Khan told the Tribunal that she recalls receiving the notice requesting these documents but that she could not recall if she sent the information requested by the Agency.

19. Nonetheless, the Agency did not receive the information requested of Mrs Khan, and on 10 March 2016 the Agency sent her a notice stating that her PPP claim had been rejected owing to the Agency not having received the requested documents.

20. Some four years later, on 16 April 2020, Mrs Khan lodged a claim for PPP in relation to Child C and was granted PPP from 23 March 2020. At this point, Mrs Khan sought review of the decision not to grant her PPP following her application from February 2016. After being advised by the Agency that the decision to reject the February 2016 PPP application was correct, Mr Khan, on behalf of Mrs Khan, claimed they were in fact seeking  review of the cancellation decision.   

    CONSIDERATION

21. It is not controversial that Mrs Khan’s difficulties began when her PPP was incorrectly cancelled by the Agency from 22 June 2015. Though the decision was incorrect, Mrs Khan accepts that she was properly notified by the Agency on 9 June 2015.

22. She contends that she first sought review of the decision to cancel her PPP within 13 weeks of being notified of the decision. She told me that she attended the Campsie Centrelink office but that she could not recall exactly when or who she spoke to. The Agency has no record of any contact having been made by Mrs Khan in that period and there is no reference to it in the documentation before the Tribunal. It appears that the first time the visit was raised was during the hearing.

23. Based on the evidence I am not satisfied that Mrs Khan’s recollection in relation to seeking review of the cancellation decision in June 2015 or shortly after is correct.

24. Following the cancellation decision, the first recorded contact with the Agency regarding PPP was from Mr Khan, who made an enquiry on behalf of Mrs Khan on 9 February 2016. Mrs Khan subsequently completed and lodged an application for PPP. The Agency sought more information from Mrs Khan. The information was not received, the Agency rejected the claim and sent notification of the decision to do so. 

25. The Secretary contends that the first time the prospect of appealing decisions of the Agency relating to PPP was on 8 September 2020 when Mrs Khan sought review of the rejection of her February 2016 PPP application.

26. Following review of the decision, Mr Khan advised on 25 September 2020 that he was in fact seeking review of the June 2015 decision to cancel PPP and I am satisfied that Mrs Khan first sought review of the decision to cancel her PPP on 8 September 2020. 

27. There being no dispute that the decision to cancel PPP in June 2015 was incorrect, the question is whether payments can be backdated to address the issue of Mrs Khan having been denied PPP to which she was entitled.

28. Section 109 of the Administration Act sets out the date of effect where a person seeks review and the decision is favourable. Subsection 109(2) relevantly provides:

    109  Date of effect of favourable determination resulting from review

    … 

    (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.

29. Subsection 109(2) of the Administration Act applies as Mrs Khan sought review more than 13 weeks after being notified of the original decision. Subsection 109(2) sets out a series of conditions which, if applicable, lead to the specified outcome leaving no room for discretion. As such, any favourable determination would apply only from 8 September 2020, the day on which review of the decision was sought.

30. Whilst Mrs Khan concedes she received notification of the decision to cancel her PPP in 2015, she was uncertain as to whether she received notification of the decision to reject her February 2016 application. Whilst the AAT1 decision indicates that Mrs Khan provided the information the Agency requested on 12 February 2016, she was less certain that she did so when she appeared before me.  

31. Notification that the application was unsuccessful, and the reasons why, was sent to Mrs Khan on 10 March 2016. Taken to a copy of the correspondence, she confirmed that it had been sent to the correct postal address, but she could not recall receiving it. 

32. Should it be accepted that Mrs Khan did not receive notification her application had been rejected, section 237 of the Administration Act applies. Section 237 provides that if notice of a decision is sent by prepaid post to the postal address of the person last known to the Secretary, the notice of the decision is taken to have been given to the person. Subsection 23(12) of the Act provides that section 237 applies to the notice even if the Secretary is satisfied that the person did not actually receive the notice.

33. Section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.

34. Pursuant to section 237 of the Administration Act, I am satisfied the decision not to approve PPP is taken to have been given to Mrs Khan.

35. As such, should Mrs Khan be found to be entitled to PPP as of 12 February 2016 when she lodged her application, she would again be subject to the provision in subsection 109(2) of the Administration Act. Having made her application for review on 8 September 2020, payment of PPP could not be backdated.

    CONCLUSION

36. Owing to an error by the Agency Mrs Khan’s entitlement was incorrectly cancelled. As a consequence she has been denied benefits to which she would have been entitled. She was notified of the decision but did not seek review within 13 weeks. The law provides for review of decisions, but subsection 109(2) limits the backdating of arrears. Having found that Mrs Khan first sought review of the cancellation decision on 8 September 2020, she is ineligible to be pain arrears relating to the cancellation decision of 2015. Consequently, the decision under review will be affirmed.

    DECISION

37. For the reasons stated above, the decision dated 2 March 2021 is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 8 March 2022

Date(s) of hearing:	5 November 2021
Advocate for the Applicant:	Mr M Khan
Solicitor for the Respondent:	Mr G Lozynsky, Services Australia