Lurje and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 41

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 41

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3366

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANATOLE LURJE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott RFD

Date15 January 2008  

PlaceBrisbane

Decision I affirm the decision under review.

....................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – asset value incorrectly recorded – arrears of benefit – review sought outside original 13-week period – deemed notice to applicant – arrears payable from date of most recent reviewable decision – decision under review affirmed   

Social Security (Administration) Act 1999 ss 109 (1), 237(1)

Frost and Secretary, Department of Social Security AAT 10360, 17 August 1995, unreported

REASONS FOR DECISION

15 January 2008   Senior Member P McDermott RFD   

INTRODUCTION

1.      Mr Anatole Lurje has sought review of a decision of the Social Security Appeals Tribunal that he is entitled to arrears of disability support pension from 17 April 2007. In this application I have to determine whether Mr Lurje was underpaid disability support pension during the period 6 December 2002 to 2 May 2007. If I decide that he was underpaid disability support pension I also have to determine whether social security law enables me to make an order that he be paid arrears of benefit.

BACKGROUND

2.      On 28 September 2000 Mr Lurje qualified for payment of disability support pension. Since that date he has been in receipt of that benefit [T28]. On 10 October 2002 he advised Centrelink that he had assets comprising two ANZ bank accounts: one term deposit account having a balance of $80,000.00 and the other account with a balance of $30,566.00. Both accounts totalled $110,566.00 [T11, folio 33].  On 22 November 2002 Mr Lurje advised Centrelink that his ANZ account(s) had a reduced balance of $40,569.64 [T11, folio 33].

3.      On 6 December 2002 Centrelink wrote to Mr Lurje to advise him of the information used to calculate his regular payment of disability support pension. He was advised that he had an annual income of $4,306.76. He was also then advised that he must tell Centrelink within 14 days if his assets other than financial investments were more than $33,181.00; or if his financial investments were more than $121,569 [S8, fol 95].

4.      On 8 March 2004 Centrelink wrote to Mr Lurje to advise him of the information used to calculate his regular payment of disability support pension. He was advised that he had an annual income of $5,316.45. He was also then advised that he must tell Centrelink within 14 days if his assets other than financial investments were more than $43,181.00; or if his financial investments were more than $121,569 [T10, fol 29].

5.      From 6 December 2002 until 3 May 2007 Mr Lurje was paid disability support pension on the basis that he had assets of $120,569 [T2, fol 15].

6.      On 17 April 2007 Centrelink wrote to Mr Lurje and provided him with an account statement for the period 24 January 2007 to 17 April 2007 [T12, fol 37].  He was asked to check the information contained in the account statement and to contact Centrelink within 14 days with respect to any incorrect or missing information, or information that may need updating [T12, fol 38]. The account statement set out the disability support payments made to him as well as the income and other financial details upon which the payments were based That account statement disclosed that Centrelink considered Mr Lurje to hold assets of $120,569.00 by way of financial investments as at 20 March 2007 [T12, fol 39].

7.      On 26 April 2007 Mr Lurje contacted Centrelink which provided him with two forms for him to complete (Mod A, Asset Details; and Mod B, Income and Investment Details). On 3 May 2007 Mr Lurje returned these completed forms to Centrelink [T14, T15]. Mr Lurje disclosed that he had $22,000.00 worth of assets and received no income from any other sources. In particular, he also advised the Centrelink officer that in 2003 some $120,000.00 of his savings had been used to build a home [T16].

DECISIONS

8.      On 17 May 2007 Centrelink reviewed Mr Lurje’s entitlement for disability support pension. It was decided to increase the rate of disability support pension which was payable to him with effect from 3 May 2007 [T21, fol 58].

9.      On 17 May 2007 Mr Lurje then sought reconsideration of this decision which was affirmed by the original decision maker [T22, fol 59; T23, fol 60]. On 23 May 2007 Mr Lurje then sought review of this decision by an authorised review officer. On 7 June 2007 that officer affirmed the original decision [T24, T26].

10.     On 14 June 2007 the applicant appealed to the Social Security Appeals Tribunal. On 5 July 2007 that Tribunal varied the decision of the respondent: it was decided that Mr Lurje was entitled to arrears of disability support pension from 17 April 2007 instead of from 3 May 2007 [T2, fol 11].

CONSIDERATION

11.     I find that Mr Lurje was underpaid disability support pension for the period of 6 December 2002 to 2 May 2007. The Secretary has properly conceded that Mr Lurje has been underpaid disability support pension for the period 6 December 2002 to 3 May 2007. The Secretary has also properly conceded that its decision of 6 December 2002 was incorrect. That decision was clearly based upon the assumption that Mr Lurje had assets which were valued at more than the amount which he had notified to Centrelink on 22 November 2002.

12.     Mr Lurje was clearly entitled to receive disability support pension for the period 6 December 2002 to 2 May 2007. I now have to determine whether social security law permits the back payment of this benefit to Mr Lurje.

13.     In this respect, the respondent concedes that the Social Security Appeal Tribunal’s decision and accompanying reasoning to vary Centrelink’s original decision to that date is correct.

14.     On 17 May 2007 Centrelink reviewed the rate of disability support pension which was payable to Mr Lurje.  On that date a decision was made to increase the rate of pension with effect from 3 May 2007. This decision is what is referred to as a “favourable determination” under social security law.

15. This application by Mr Lurje concerns subsection 109(1) of the Social Security (Administration) Act 1999. The subsection provides as follows:

“109 Date of effect of favourable determination resulting from review
(1) If:

(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.”

16. I consider that this is a case in which subsection 109(1) of the Social Security (Administration) Act 1999 applies. On 17 April 2007 Centrelink wrote to Mr Lurje to advise him of the new rate of disability support pension payable to him. On 26 April 2007 Mr Lurje made an enquiry as to the appropriate rate of pension payable to him. This enquiry can be treated as an application for review of the decision of 17 April 2007: see Frost and Secretary, Department of Social Security AAT 10360, 17 August 1995, unreported. Under subsection 109(1) the date of effect of a favourable decision following an application for review is to be “the day on which the determination embodying the original decision took effect”. That day is the 17 April 2007.

17. I appreciate that Mr Lurje did not receive the letter that Centrelink sent to him on 6 December 2002, although in proceedings before the Social Security Appeals Tribunal he stated that the letter may have been inadvertently thrown out. Whatever is the position, that letter is deemed to be delivered to Mr Lurje under social security law. This is a consequence of s 237(1)(c) of the Social Security (Administration) Act 1999 which provides as follows.

237 Notice of decisions
(1)  If notice of a decision under the social security law is:

(a) delivered to a person personally; or

(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(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.

DECISION

18.     I affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
P McDermott RFD

Signed:         .....................[Sgd]...........................................................
  S O’Grady, Associate

Date/s of Hearing  30 October 2007  
Date of Decision  15 January 2008
For the applicant  Self-represented 
For the respondent  Mr R Hamilton, departmental advocate