Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 870
•10 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 870
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2005/327
GENERAL ADMINISTRATIVE DIVISION ) Re YVONNE LAMBERT Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms LR Tovey, Member Date10 October 2006
PlacePerth
Decision
The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 22 August 2005.
………[Sgd. Ms LR Tovey]…..…
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – rent assistance component cancelled and reinstated – whether notices given - date of effect of favourable decision
Social Security Act 1991 (Cth), ss. 117, 1064, 1070C, 1070L
Social Security (Administration) Act 1999 (Cth), ss. 68, 72, 78, 81A, 109, 237
Acts Interpretation Act 1901 (Cth), ss. 28A, 29
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Re the Secretary, Department of Family and Community Services and Thipthorp [1999] AATA 823
Re Catt and the Secretary, Department of Family and Community Services [2000] AATA 1101
Re Mulhallen and Secretary, Department of Family and Community Services (2001) 65 ALD 579; [2001] AATA 80
Re Vickers and the Secretary, Department of Education, Training and Youth Affairs (2001) 67 ALD 409; [2001] AATA 1027
Re Panagakis and Secretary, Department of Family and Community Services [2004] AATA 235
Re Scott and Secretary, Department of Family and Community Services [2005] AATA 269
REASONS FOR DECISION
10 October 2006 Ms LR Tovey, Member 1. This is an application by Ms Yvonne Lambert ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT"). That decision of the SSAT affirmed a decision of a delegate of the Secretary of the Department of Families, Community Services and Indigenous Affairs ("the Respondent"). The decision of the Respondent related to the date on which a favourable determination made by the Respondent under the Social Security Act 1991 (Cth) ("the Act") and the Social Security (Administration) Act 1999 (Cth) ("the Administration Act") took effect.
BACKGROUND FACTS AND LEGISLATIVE FRAMEWORK
2. The Applicant has, at all material times, been in receipt of a disability support pension, the entitlement to which is provided for by Part 2.3 of the Act. Section 117(a) of the Act provides for the rate of the Applicant's pension to be calculated using Pension Rate Calculator A at the end of s. 1064 of the Act. One component in that rate calculator, in cases where the person qualified for the pension meets certain criteria, is the rent assistance provided for in Part 3.7 of the Act. It is not necessary to set out those criteria in these reasons, as it is not in contention that the Applicant satisfied these criteria at all material times. The Applicant was therefore entitled to an allowance for rent assistance in the determination of the rate of her disability support pension. It may be noted, however, that the amount of rent paid by the Applicant was a factor in determining her qualification for rent assistance, and the amount of that rent assistance: s. 1070C(d) and 1070L(2) of the Act.
3. A component of rent assistance was allowed for in the pension payments made to the Applicant prior to 23 September 2004. It may be inferred from the payments made to the Applicant that, at some time prior to 23 September 2004, the Respondent had determined that the Applicant was entitled to be paid a disability support pension and determined the rate in a manner that included rent assistance.
4.Section 68(2) of the Administration Act provides that:
"(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to … :
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment."
5. The Applicant, as a person to whom a social security payment in the form of a disability support pension is made, is a person to whom s. 68(2) of the Administration Act applies.
6. Section 72 of the Administration Act provides for the requirements of a notice given under s. 68(2) of the Administration Act. Section 72(1)(a) of the Administration Act requires that the notice must be given in writing. Section 72(1)(b) of the Administration Act provides that the notice:
"… may be given personally or by post or in any other manner approved by the Secretary"
7. The Respondent contends that a notice under s. 68(2) of the Act was given to the Applicant by a delegate of the Respondent on 26 August 2004 ("the Request Notice"). A computer record of the Request Notice has been provided to this Tribunal (T3). The record indicates that the Request Notice was addressed to the Applicant at her home address. The date of issue is shown as 26 August 2004. The computer record indicates that the notice required the Applicant to give details and proof of the amount of rent she paid. That was clearly a matter which might affect the rate of disability support pension payable to the Applicant, so that s. 68 of the Act authorised the Respondent to give the notice. The form of the Request Notice contained in that computer record complies with the requirements of s. 72 of the Act.
8. The Applicant contends that she never received the Request Notice, and therefore did not respond to it by providing the requested information to the Respondent.
9. In relation to the giving of the Request Notice, ss. 28A and 29 of the Acts Interpretation Act 1901 (Cth) relevantly provide:
"28A Service of documents
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a)on a natural person:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document …
29Meaning of service by post
(1)Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."
10.Section 81A of the Administration Act relevantly provides that:
"(1) Without limiting section 81, if:
(a)an amount of rent assistance is being added to a person’s maximum basic rate of social security payment; and
(b)the person has been given … a notice under section 68 that requires the person to give the Department a statement:
(c)any statement … required by the notice relates to:
(i)whether the person qualifies for rent assistance; or
(ii)the amount of the person’s rent assistance; and
(d)the person does not comply with the requirement of the notice;
the Secretary may determine that the person’s rate of social security payment is to be reduced by not adding the amount of rent assistance to the person’s maximum basic rate.
(2)The determination must also specify the new rate of social security payment."
11. On 23 September 2004 the delegate of the Respondent determined that the Applicant's rate of social security payment was to be reduced by not adding the amount of rent assistance to the Applicant's maximum payment, and specified a new rate of social security payment ("the Original Decision").
12. The Respondent contends that it gave the Applicant notice of the Original Decision by letter dated 23 September 2004 ("the Decision Notice"). The Tribunal has been provided with a computer record of the Decision Notice (T9), which was addressed to the Applicant at her home address. The Decision Notice advised of the reduced rate of the Applicant's pension and indicated that:
"Your Rent Assistance has been cancelled because you have not given us proof of your rent payments".
13.The Applicant contends that she did not receive the Decision Notice.
14. In relation to the giving of the Decision Notice, s. 237 of the Administration Act relevantly provides:
"(1) If notice of a decision under the social security law is … :
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2)Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3)If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved."
15. It is also common ground that the Applicant was advised of Original Decision when she telephoned the Centrelink's call centre on 12 May 2005. At that time the Applicant requested a review of the Original Decision. As a result, on 27 May 2005 a delegate of the Respondent decided to increase the rate of disability support pension payable to the Applicant to include a component of rent assistance of $92.25 per fortnight with effect from that date ("the Favourable Determination").
16. The Favourable Determination was taken pursuant to s. 78 of the Administration Act, which provides:
"If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:
(a)determine that the rate is to be increased to the rate provided for by the social security law; and
(b)specify the last‑mentioned rate in the determination."
17. Section 109 of the Administration Act relevantly provides for the date on which the Favourable Determination takes effect, in the following terms:
"(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.
(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.
(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."
18. On 14 June 2005 an Authorised Review Officer ("ARO") of the Respondent varied the date from which the Favourable Determination took effect. The ARO set aside the decision to increase the rate from 27 May 2005, and substituted a decision to increase the rate of the Applicant's pension from 20 March 2005. This decision was taken on the basis that, while the Applicant had not sought review of the Original Decision within 13 weeks of being given notice of that decision, the Applicant was not notified of a pension rate change on 20 March 2005.
19. On 22 August 2005 the SSAT affirmed the decision of the Respondent's delegate of 27 May 2005, as varied by the decision of the ARO.
20. The Applicant now seeks review by this Tribunal of the decision of the SSAT.
THE ISSUES FOR DETERMINATION
21. In my view, the critical issue in this case is whether the Applicant was given the Request Notice and the Decision Notice.
22. If the Applicant was given those notices then s. 109(2) of the Administration Act requires that the Original Decision take effect on the day the application for review was made, which was no earlier than 12 May 2005. On that basis, taking account of the failure to notify the Applicant of the change of her pension rate on 20 March 2005, the decision of the ARO and the SSAT was correct.
23. The giving of the Request Notice was one of the pre-conditions to the making of a valid decision under s. 81A of the Administration Act. If the Applicant was not given the Request Notice then the Original Decision would not have been effective to alter the previous determination of the Applicant's pension rate, which included a component of rent assistance: see Re Mulhallen and Secretary, Department of Family and Community Services (2001) 65 ALD 579 at 587-8; [2001] AATA 80 at [20]-[25].
24. If the Applicant was not given the Decision Notice, then s. 109(3) of the Administration Act would require that the Favourable Decision take effect from the date of the Original Decision.
25. In either of the last two cases, the Applicant would be entitled to a pension with a rent assistance component from 23 September 2004, and be entitled to have the decisions of the SSAT and the delegates of the Respondent varied accordingly.
CONSIDERATION OF THE ISSUES
26. As I have noted above, the Applicant contends that she did not receive either the Request Notice or the Decision Notice, and was not given any notice of the Original Decision until 12 May 2005. At the hearing before this Tribunal, she gave evidence on oath to that effect.
27. I accept that evidence of the Applicant. I found her to be an honest and credible witness, who gave her evidence in a straightforward manner and freely indicated matters, such as the precise details and dates of conversations with Centrelink officers, which she could not recall. Given the financial situation of the Applicant, I find it difficult to accept that, had she been told in September 2004 that her rent assistance had been cancelled, she would have taken no action to have that payment, to which she was entitled, restored. I am satisfied that the Applicant never received either the Request Notice or the Decision Notice, and that the first occasion on which she was informed of the Original Decision was on 12 May 2005.
28. I also accept the Applicant's evidence that she contacted Centrelink's call centre on a number of occasions, to ask if she was receiving the correct rate of her pension, and was told that she was receiving her full rate. I find that these calls occurred after the taking of the Original Decision but prior to 12 May 2005. I also find that the issue of rent assistance was never specifically raised during these conversations. While the documents provided by the Respondent do not verify that these discussions occurred, I accept the evidence of the Applicant that she did telephone to inquire as to the rate of her pension in the manner indicated in her evidence before this Tribunal.
29. The finding that the Applicant never received the notices does not, however, dispose of this matter. The question, which arises under s. 81A(1)(b) and s. 109(1)(b), 2(b) and (3)(b) of the Administration Act, is whether the relevant notices were "given", rather than whether they were received.
30. Under both s. 29 of the Acts Interpretation Act and s. 237 of the Administration Act notice may be given by sending a letter by prepaid post to the address of the Applicant last known to the Respondent. Both provisions indicate that notice is taken to be given at the time when the notice would have been delivered in the ordinary course of post, unless the contrary is proved. Evidence of non-receipt of the notice is not evidence of non-delivery for this purpose: see Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
31. In this case there was evidence from the Applicant of mail in her area being interfered with, after delivery, by local children. If the Request Notice or Demand Notice had been stolen after delivery to the Applicant's address, the legislation referred to above would still have deemed the notices to have been given.
32. Therefore, if I am satisfied that the Request Notice and Demand Notice were posted to the Applicant's last known address, there is no evidence of non-delivery (as opposed to non receipt) before me to rebut the presumption of service created by s. 29 of the Acts Interpretation Act and s. 237 of the Administration Act.
33. In making the above observations, I should not be taken as saying that the Applicant was making a positive allegation that the notices were stolen. The Applicant merely said that she was aware of mail being stolen around her neighbourhood, but should couldn't categorically say more than that she hadn't received the notices.
34. The question is then whether I am satisfied that the Request Notice and Decision Notice were sent by prepaid post to the last known address of the Applicant. The only materials provided by the Respondent at the hearing were the computer records of the notices having been created and issued. T36 was described as "System Documents", and the Respondent's representative at the hearing before me indicated that one page of that record showed letters which had been issued. That printout, at T 36 page 67, is not decipherable by me, although it does show some action occurring on 26 August and 23 September 2004. However, at the time of the hearing there was nothing in the material provided to me to show that this was a record that documents in this form were posted, or the date on which they were posted.
35. During the course of the hearing before me, I asked the representative of the Respondent what there was to show that the notices had been physically posted. I was informed by the Respondent's representative that there was an agency that posts Centrelink's records, which would have records of what was sent on a particular day. At the conclusion of the hearing, I gave the Respondent leave to provide the Tribunal with material to show that the notices had been sent to the Applicant.
36. By letter dated 18 April 2006 the representative of the Respondent advised me that:
"I have confirmed with Centrelink's liaison person in Canberra, Ms S Culham, Bulk Mailout Officer, Output Management, that in August and September 2004, Salmat was the mailhouse used by Centrelink Western Australia to deliver their letters to Australia Post. Checks of that database have shown that:
·21,153 letters were issued by Centrelink on the 26 August 2004 (the date the rent certificate was issued to Mrs Lambert) and all were lodged at Australia Post on either the 26 August 2004 or 27 August 2004.
·21,883 letters were issued by Centrelink on 23 September 2004 (the date the letter in regard to the cancellation of Mrs Lambert's rent assistance was issued) and all were lodged at Australia Post on 24 September 2004 (a Friday) and 27 September 2004 (a Monday)."
37. The above letter confirms that, of the large number of letters issued by Centrelink on 26 August and 23 September 2004, all were lodged with Australia Post. The Respondent's representative informed me at the hearing that the printout at T 36 page 67 was the Respondent's record of the dates on which letters were issued to the Applicant, and shows letters to have been issued on 26 August and 23 September 2004. On the basis of the indication given to me by the Respondent's representative, I am satisfied that this is a record that the Request Notice and the Demand Notice were issued by Centrelink on 26 August and 23 September respectively, and so were among the letters posted at the dates indicated in the letter of 18 April 2006.
38. The Applicant submitted, by letter dated 4 May 2006, that "Centrelink can’t prove they posted a rent certificate to her if they are not sure what day it was posted". This submission was made on the basis that the letters issued on 26 August 2004 were said to have been posted on either 26 or 27 August 2004, and the letters issued on 23 September 2004 were posted on either 24 or 27 September 2004. However, in my view it is sufficient if the records show the notices to have been posted on one of two alternative days. It is not material, for present purposes, to ascertain on which of these days the notices were posted.
39. In making this decision, I have had regard to the decision of the Tribunal in Re the Secretary, Department of Family and Community Services and Thipthorp [1999] AATA 823, where the Tribunal found it was not satisfied that a document had been given despite some computer records that a notice had been issued. However, it was significant in that case that the Department had not retained a copy of the document: see paragraph 38 of the reasons. In this case the T-Documents contain electronic copies of the Request Notice and Decision Notice.
40. This decision is also consistent with that of the Tribunal in Re Catt and the Secretary, Department of Family and Community Services [2000] AATA 1101, and the other cases referred to in that decision, as well as the subsequent decisions in Mulhallen, Re Vickers and the Secretary, Department of Education, Training and Youth Affairs (2001) 67 ALD 409; [2001] AATA 1027; Re Panagakis and Secretary, Department of Family and Community Services [2004] AATA 235 at [28]-[29] and Re Scott and Secretary, Department of Family and Community Services [2005] AATA 269 at [37]. In all of those cases the Tribunal was satisfied that notices had been given, based on evidence of records of the Respondent's delegate that the notices had been posted to the last known address of the applicants in those cases.
41. I note that there was some evidence that the street on which the Applicant lives was sometimes referred to as "A_ Road" or "A_ Street", and that it was referred to as a "street" in both the local government's signage and the 2005 Perth Streetsmart Street Directory. I do not regard this as a matter of any significance, particularly as that street directory showed there to be only one street or road of that name in the Perth metropolitan area. The Applicant gave evidence that she had been receiving letters from Centrelink at her address. I also note that in her application to this Tribunal the Applicant described her address as "A_ Road" (T1), so that it seems likely that the Applicant describes her address in that manner from time to time. I also note that in Thipthorp at [49] the Tribunal did not regard a spelling error in the address as being of significance. I would regard any error in referring to "A_ Street" as "A_ Road" as of the same order of magnitude as the error in Thipthorp. I am satisfied that the Request Notice and Decision Notice were posted to the last known address of the Applicant, which was also the place where the Applicant was actually living at the relevant time.
42. Therefore, I am satisfied that the Request Notice and the Decision Notice were both given to the Applicant, by force of the deeming provisions of s. 29 of the Acts Interpretation Act and s. 237 of the Administration Act. I make that finding notwithstanding that I accept that the Applicant never actually received either notice. It follows that the decision of the SSAT must be affirmed.
43. In reaching that conclusion, I am cognisant of the Applicant's request that payment of rent assistance be backdated 13 weeks from 30 March 2005. Unfortunately, there is no basis in either the Act or the Administration Act for acceding to that request. The effect of s. 109 of the Administration Act is that, unless the review was sought within 13 weeks of the giving of the Decision Notice, the Favourable Decision takes effect from the date on which review was sought. Section 109 of the Administration Act does not provide for the Favourable Decision to take effect 13 weeks prior to the date on which review was sought.
EX GRATIA PAYMENT
44. I do consider the result produced by the above legislation, in its application to the Applicant, to be unfair. On my findings, the reason why the Applicant did not respond to the Request Notice, or promptly seek review of the decision contained in the Decision Notice, is that she did not receive either notice. Because she did not receive the notices, she has been deprived of a payment to which she was entitled.
45. I have also found that, on some occasions between 23 September 1994 and 12 May 2005, officers of Centrelink told the Applicant that she was receiving the full amount of her pension, when that was not a correct statement of the position.
46. While it is beyond my jurisdiction to order the making of an ex gratia payment, it is my view that such a payment is warranted in the circumstances of this case. The advice of the Respondent was that an ex gratia payment would be considered in circumstances which included where the application of legislation produced an unfair result or there was a moral obligation on the Commonwealth to make a payment. In my view, both criteria are satisfied in all the circumstances of this case.
47. I therefore recommend that the Respondent make an ex gratia payment to the Applicant, equivalent to the rental assistance component of her disability support pension that would have been payable between 23 September 2004 and 30 March 2005.
DECISION
48. The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 22 August 2005.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: .............[Sgd. Ms R Riberi]..............................
AssociateDate of Hearing 21 March 2006
Final Written Submissions 4 May 2006
Date of Decision 10 October 2006
Representative for the Applicant Ms C Coleman, People with Disabilities (WA) Inc.
Representative for the Respondent Ms M Conlon, Centrelink
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