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

[2021] AATA 1422

Kornmann and Secretary, Department of Social Services (Social services second review) [2021] AATA 1422 (21 May 2021)

Division:GENERAL DIVISION

File Number:          2020/3324

Re:Paul Kornmann

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:21 May 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

SOCIAL SECURITY – carer payment – date of effect of higher rate of carer payment – where incorrect income taken into account by Centrelink – failure to respond to electronic notification from Centrelink – consent to use of electronic communications – decision under review affirmed

Legislation

Electronic Transactions Act 1999
Social Security Act 1999

Social Security (Administration) Act 1999

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

21 May 2021

BACKGROUND

1. Mr Kornmann applied on 25 May 2020 for review of a decision of the Social Security and Child Support Division (AAT1) dated 7 April 2020 affirming the earlier decision of an Authorised Review Officer (ARO). An extension of time in which to lodge this application was not opposed.

2. The ARO had upheld an earlier decision that Mr Kornmann was not entitled to be paid carer payment from a date earlier than 10 July 2019, on the basis that he had not sought review of the rate of his payment within 13 weeks of the original decision. The rate of payment had been determined with reference to inaccurate (out of date) income reporting that related to Mr Kornmann’s previous receipt of newstart allowance.

3. The issue arising in this review is primarily the nature and effect of electronic communications. This is because the opportunity Mr Kornmann had to make an earlier challenge to his rate of carer payment is said to have arisen from the transmission of communications from Centrelink electronically, which were, unfortunately, not responded to by the Applicant. It appears that in making the decision under review, AAT1 proceeded on the basis that communications had been in paper form, and the ARO proceeded on the same basis.

4. Mr Kornmann represented himself and appeared by telephone at the hearing. The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC), T documents (T), and a number of Supplementary T documents (ST). I invited the Respondent to lodge further submissions relating to the nature and effect of electronic communications and further submissions were provided, dated 27 January 2021, with several attachments (further submissions). This arose from discussion at the hearing about the different platforms and systems referred to in this matter, being both the myGov site and inbox, and Centrelink Electronic Messaging.

   LEGISLATION

5. The date of effect of a favourable review decision is set with reference to s 109 of the Social Security (Administration) Act 1999 (the Administration Act). A review must be requested within 13 weeks after notice is given of the original social security payment decision in order for, in this case, a rate increase to be backdated to the date of the original decision (s 109(1)). If a review request is made outside this 13 week period, the review decision takes effect from the date the request was made (s 109(2)).

6. Under s 237 of the Administration Act, notice of a decision is taken to have been given to the person if sent to the last known address of the person. By operation of s 23(12) of the Social Security Act 1999, such notice is deemed to have been received even if not actually received by the person.

7. The Electronic Transactions Act 1999 (the ET Act) provides that where under any law a person is required to give information in writing, that information may be given electronically (s 9(1)), where, relevantly:

   (a)in all cases – at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and …

   (d)… the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.

8. Consent is defined in s 5 of the ET Act as including consent ‘that can reasonably be inferred from the conduct of the person concerned’.

9. Time of receipt of electronic communication is dealt with in s 14A of the ET Act. Thus, unless otherwise agreed, electronic communication is deemed to be received when capable of being retrieved by the addressee at an electronic address designated by them. It is assumed the communication is capable of being retrieved.

   EVIDENCE AND SUBMISSIONS

10. I consider it convenient and appropriate to summarise key facts, to provide context for the considerations below.

Date	Description	Reference
2014	Applicant in receipt of newstart allowance	SFIC [3]
14/5/2015	Applicant creates myGov account linked to ‘outlook’ email address, and identifying Centrelink and Department of Employment as linked agencies	T15, pp 120-122
Centrelink sends advice regarding access to electronic communications	T16, p 130
12/11/2015	Applicant advises employment income via internet	T10, p 87
21/8/2017	Centrelink sends carer payment information electronically	T16, p 163
29/8/2017	Centrelink advises electronic messaging unsuccessful and that Applicant was unsubscribed from Centrelink Electronic Messaging	T16, p 194
5/12/2018	Applicant applies for carer payment in paper format, and confirms outlook email address (prepopulated in the form)	T4
Applicant declares not in receipt of income	T5, p 30
14/2/2019	Centrelink advises re carer payment and states 2015 income figure informed the assessment, advice sent electronically to myGov inbox	T16, p 196
4/7/2019	Applicant creates new myGov account linked to ‘hotmail’ email address	SFIC [14]
10/7/2019	Applicant phones Centrelink to correct income data	T10, p 91
Centrelink increases carer payment	T16, p 199
23/7/2019	Applicant phones Centrelink regarding review of decision	T10, p 92
23/1/2020	ARO affirms decision about date of effect	T7, p 53

1. Mr Kornmann stated in evidence that he forgot about his myGov account after securing employment. He stated that he objected to the argument that he opted into electronic communications, saying that he also received communications by mail. Mr Kornmann stated that he ‘just got the form’ from Centrelink when applying for carer payment. The Respondent’s representative confirmed that the form had been pre-populated with the Applicant’s ‘outlook’ email address.

2. At the hearing the Respondent’s representative explained that, based on information obtained from the agency, when Mr Kornmann linked his Centrelink account to myGov on 14 May 2015, that he was automatically subscribed to the Centrelink Electronic Messaging Service (T15, p 109).

3. The Respondent’s submissions also highlight (SFIC [34]) that upon creating his myGov account and linking Centrelink, he accepted terms of use that include explicit agreement to receiving all eligible correspondence in his myGov inbox (ST2, p 214). It was further submitted that it was not possible to create a myGov account without accepting the terms of use (further submissions [6]).

4. Inquiries made by the Respondent’s representative, summarised in submissions, indicate that Mr Kornmann received the relevant electronic communications to his myGov inbox (further submissions [15]-[16] and [29]) and that messages remained unread until 4 July 2019 (T15, p114).

5. It was submitted on the Respondent’s behalf that the ‘bounce back’ of an email on 29 August 2017 may have been for one of a number of reasons. Nonetheless, Mr Kornmann was unsubscribed from electronic messaging, but this did not affect the myGov registration (further submissions [24]). It was also submitted that the (pre-populated) carer payment application form invited Mr Kornmann to update his contact details if incorrect (T4, p 14).

   CONSIDERATIONS

6. I consider that it is a reasonable summary of the facts to say that Mr Kornmann was an infrequent user of electronic services and communications. It is also unfortunate to observe that the underpayment of carer payment appears to have resulted from the unnecessary carry forward of out-of-date information about Mr Kornmann’s income.

7. At the same time, it is necessary to acknowledge that Mr Kornmann engaged with the government online, and that this had certain legal and administrative consequences. I am not in a position to challenge the facts as to the acceptance of terms and conditions that had the effect of making Mr Kornmann’s engagement with the agency almost exclusively digital.

8. The effect of his actions, and the law as I have summarised it above, is that Mr Kornmann must be understood to have consented to receiving communications electronically. Mr Kornmann did not identify the error contained in the calculation of his carer payment because of his failure to read electronic communications.

9. I note that the different elements of s 9 of the ET Act are cumulative and that s 9(1)(a) requires that it must be reasonable to expect that the information in question would be readily accessible. Specific submissions were not made on this point, but I accept from the totality of the evidence that this requirement is met in this case. I say this because Mr Kornmann established a myGov account and engaged at times with Centrelink online, for example when updating income information.

10. The consequence of Mr Kornmann not raising his concerns about the calculation of his payment within 13 weeks of 14 February 2019, is that the adjustment to the rate of payment cannot take effect earlier than the date of his challenge.

11. In conclusion, while Mr Kornmann’s carer payment was initially assessed on incorrect information, and he attempted to correct this error, the correct and preferable decision is that the decision to increase the rate of carer payment must take effect from the date he sought review, that is 10 July 2019.

    DECISION

12. For the reasons given above the Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 21 May 2021

Date of hearing:	13 January 2021
Date final submissions received:	11 February 2021
Applicant:	Self-represented
Advocate for the Respondent:	Ms April Voight
Solicitors for the Respondent:	Litigation and Information Release Branch, Legal Services Division, Services Australia