Lynch and Secretary, Department of Family and Community Services
[2005] AATA 376
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 376
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/269
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN EDWARD LYNCH Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr KS Levy, Member Date29 April 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd].....................
Dr KS Levy
Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and entitlements – application for arrears of unemployment benefits – application not made for 13 years – decision cannot be made retrospective beyond the date on which the appeal was lodged – applicant not entitled to arrears of benefits – decision under review affirmed.
Social Security Act 1947 s 122, 158, 159, 168, 205.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Department of Social Security and Garratt (1992) 109 ALR 149
REASONS FOR DECISION
29 April 2005 Dr KS Levy, Member 1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 and having regard to section 205 of the Social Security Act 1947 (“the Act”), to review a decision of the Social Security Appeals Tribunal made on 26 March 2004. That decision affirmed previous decisions of Centrelink and an Authorised Review Officer, that the applicant was not entitled to arrears of unemployment benefits granted in November 1990.
Issues
2. The issues in this matter are:
(a)whether the applicant is entitled to arrears of unemployment benefits prior to November 1990;
(b)whether failure to provide advice of appeal rights in writing has any effect.
Evidence
3. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T documents) were tendered into evidence as Exhibit 1.
4. The applicant explained that in 1987, he was retrenched as a waterside worker. He was 57 years of age at the time. His date of birth is 10 July 1930. He advised that he received a retrenchment package at the time which was substantial. Those funds were largely invested in the stock market which suffered significant losses (about one third of its original value) in the stock market crash of the late 1980s.
5. Mr Lynch stated that the bank advised him that as he had valuable real estate in St Lucia, a suburb of Brisbane, he could develop townhouses on that land. He borrowed $750,000, moved his house from St Lucia to Nambour, and then built five townhouses on his land at St Lucia. As his financial position had deteriorated by that time, he sold four of the five townhouses. He kept the fifth townhouse but the income from that property only covered the repayments required on the debt pertaining to that unit.
6. In March 1990 he applied for unemployment benefits under the Social Security Act 1947. In April 1990 he was advised that his application was not approved as the combined value of the assets of himself and his wife were too high. This advice was provided verbally and not by letter.
7. A couple of months later in about June 1990, Mr Lynch said he was still upset by the decision to reject his application. He sought reconsideration of the decision and the manager at the Nambour office suggested a valuation of his real estate should be undertaken. He agreed with this course of action. The valuation was obtained from the Australian Valuation Office on 21 June 1990. He was asked back to see the manager when the valuation was received and he was advised that the unemployment benefits application was still rejected owing to the size of his assets. Mr Lynch said this decision was conveyed to him by the original officer, the manager of the Nambour office and a third officer independently. After meeting with them, his evidence was that the original officer with whom he had been dealing came up to him as he was leaving, put his arms around him and told him that he was close in being able to justify getting unemployment benefits, and that he had to reduce his assets by about $10,000.
8. At this stage of the evidence, Mr Lynch became emotional momentarily about a family crisis that had occurred in about 1990.
9. The decision to reject the application was notified to him in writing on 16 July 1990. It was argued by Mr Howard for the respondent, that the decision contained notice of appeal rights. A sample letter produced by computer method which showed the advice of rights of appeal was produced to the Tribunal. The actual letter sent to the applicant was produced as a copy of a microfiche record and this did not show that part of the letter which apparently contained the advice of appeal rights. It was indicated that it was not the practice to maintain a copy of that page of all letters, and had not been the practice for some years. It was assumed that this was based on cost.
10. Mr Lynch disputed receiving the copy of that aspect of the letter although he acknowledged the letter was received. However, towards the end of the hearing he stated that “it may have been on the back” but that was not referred to in the body of the letter. He also stated that in August 1990, he had accepted the decision that he was not entitled to arrears as sought by him.
11. In November 1990, as he was driving through Nambour, he said that he saw an advertisement that a complaints officer from Centrelink was in town just for that day. He went to the office in the middle of the afternoon on that day and was interviewed by a lady whose name or official designation is not known. His interview was brief but he stated he was advised by her that she thought he would be entitled to unemployment benefits. She apparently rang him on the Monday morning following and he stated that the officer advised him he was qualified for unemployment benefits and would be set up immediately for “the dole”. He also stated in evidence that he interrupted the lady on the telephone and asked about “retrospectivity”. He said that she replied he would get full retrospectivity. He was granted unemployment benefits with effect from 22 November 1990.
12. The manager at Nambour was waiting for his attendance at the Nambour office following this call. When discussing the matter at that office, the manager insisted that he could only get retrospectivity for three months. He stated the manager also told him he had no right of appeal in respect of the decision. He subsequently attempted to contact the complaints officer and was told she had been transferred to another office and would not be back for six months.
13. With respect to the issue of benefits and arrears, it appears any decision to pay arrears would have been outside the three month appeal period. However, the Tribunal was referred to the Departmental record of payments made at that time and no such payment of arrears being paid was recorded (T27).
14. He did not appeal the decision which was advised to him in the letter of 16 July 1990 or the decision on 22 November 1990 until 19 February 2004, some thirteen years later. He was apparently informed by a Departmental officer that there was no time limit in which he could appeal such decisions.
The Relevant Law
§Social Security Act 1947
“Sect 122 Income and Assets Test
122(1) Subject to subsection (2), where an unemployment benefit or a sickness benefit is payable to a person whose income exceeds $60 per fortnight, the rate per week of that benefit shall be reduced:
(a) …; or
(b)
(2) Where the person referred to in sub-section (1) has a spouse-
(a)whose income is included in the income of the person under sub-section (4); and
(b)who is in receipt of a prescribed pension, the rate per week of the benefit payable to the person shall be reduced by one half of the amount which, but for this sub-section, would have been the amount of the reduction under sub-section (1).
(3) …
(4) For the purposes of the application of sub-section (1) in relation to a married person, the income of a person shall include the income of that person's spouse”
Sect 158 Claims
158(1) The grant or payment of-
(a) a pension under Part IV or V;
....
shall not be made except upon the making of a claim for that pension, benefit
or allowance.
Sect 159 Making and lodgement of claims etc
159(1) A claim shall be made in writing in accordance with a form approved by the Secretary and shall be lodged-
(a) at an office of the Department in Australia; or
(b) at a place (whether inside or outside Australia), or with a person (whether inside or outside Australia), approved for the purpose by the Secretary.
(2) Where-
(a)a claim is lodged for the payment to a person of a pension under Part IV or V or of a benefit under Part VI;
(b)on the day on which the claim is lodged, the person is not qualified to receive the pension or benefit; and
(c)during the period of 3 months commencing immediately after the day on which the claim is lodged, there occurs a later day on which, if the claim had been lodged on the later day, the person would have been qualified to receive that pension or benefit, or there occur 2 or more such later days, the claim shall, for the purposes of this Act, be deemed to have been lodged on that later day or on the earlier or earliest of those later days.
Sect 168 Cancellation, suspension or variation of pension etc.
…
(3) If, having regard to any matter that affects the granting of a claim for, or the payment of, a pension, benefit or allowance under this Act, the Secretary decides that the claim should be granted, a payment of the pension, benefit or allowance should be made or the rate of the pension, benefit or allowance is less than it should be, the Secretary may, by determination, grant that claim, direct the making of that payment or increase that rate, as the case may be.
(4) A determination under subsection (3) takes effect:
(a)if the determination is made following a person having applied to the Secretary under subsection 173 (1) for review of a previous decision where:
(i)a notice was given to the person to whom the relevant pension, benefit or allowance was or could have been payable advising the person of the making of the previous decision and the review was sought, or the appeal made, within 3 months after that notice was given; or
(ii) no notice was given to the person referred to in subparagraph (i) advising the person of the making of the previous decision; on the day on which the previous decision took effect;
(b)if subparagraph (a) (i) would apply but for the person concerned having sought the review or made the appeal outside the period of 3 months referred to in that subparagraph-on the day on which the person sought the review or made the appeal;
§Review by Administrative Appeals Tribunal
Sect 205 A person affected by a decision that has been reviewed by the Social Security Appeals Tribunal may apply to the Administrative Appeals Tribunal for a further review of the decision
205 (1) Where a decision has been reviewed by the Social Security Appeals Tribunal and has been affirmed, varied or set aside, application may be made to the Administrative Appeals Tribunal for a review of the decision of the Social Security Appeals Tribunal. Security Appeals Tribunal
(2) For the purposes of subsection (1), the decision made by the Social Security Appeals Tribunal shall be taken to be:
(a)where the Tribunal affirms a decision-the decision as affirmed;
(b)where the Tribunal varies a decision-the decision as varied;
(c)where the Tribunal sets a decision aside and substitutes a new decision-the new decision; and
(d)where the Tribunal sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the Tribunal-the directions or recommendations of the Tribunal.
(3) Subsection (1) has effect subject to section 29 of the Administrative Appeals Tribunal Act 1975.
Note: Section 29 of the Administrative Appeals Tribunal Act 1975 lays down the manner in which an application to the AAT for review of a decision must be made.
(4) Where:
(a)the Administrative Appeals Tribunal sets a decision aside; and
(b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of this Act.
Findings of Fact
15. The Tribunal has made the following findings of fact.
(a)In March 1990 the applicant claimed unemployment benefits;
(b)In April 1990 verbal advice was provided that the applicant’s claim was not approved;
(c)In June 1990 a valuation by the Australian Valuation Office of the applicant’s St Lucia property was undertaken. He was verbally advised of rejection of his application on this valuation;
(d)On 16 July 1990 a letter of rejection to confirm the verbal advice of June 1990 was sent to the applicant;
(e)The applicant accepted that the letter had included notice of appeal rights;
(f)In November 1990 the applicant asked for a review of the decision;
(g)On 22 November 1990 unemployment benefits were granted. It was also decided that no arrears of unemployment benefits were to be paid;
(h)19 February 2004 the applicant appealed the decision not to pay arrears of unemployment benefits (verbal decision of April 1990, June 1990 and November 1990; and the written decision of 16 July 1990).
Consideration of the Issues
16. The claim made by the applicant for unemployment benefit in 1990 had to meet the requirements of section 122 of the Act.
17. In relation to the submission of a claim, this must be made in writing and satisfy certain other requirements (see sections 158 and 159 of the Social Security Act 1947). These requirements are there for good purpose as, if they were not adhered to, then an absurd position would result where anyone could claim a continuing entitlement from a retrospective date and then be paid extraordinary amounts. This would itself be extraordinary, as no Government can plan and budget public monies on that basis. Consequently, I do not believe Parliament could have intended that that be an anticipated outcome. Certainly, someone could have a right to a pecuniary entitlement. But to recognise a right as having arisen without activating preconditions which the applicant must undertake, especially where they are statutorily provided for, would seem to me to be not in compliance with the legislative intent. It also would place an interpretation on the statutory provision which is not specified. The interpretation adopted here is a clear application of the longstanding principle embodied in the literal rule as determined by the High Court (see The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129). The applicant satisfies this statutory requirement.
18. With respect to the assessment of whether the original decision was within the guidelines specified in the letter of 16 July 1990, the respondent advised the Tribunal that the records of applications and correspondence beyond the last five years are no longer maintained (presumably due to policy and the provisions of the Archives Act 1983), other than those records specified above which are maintained on microfiche.
19. Looking at the criteria in the letter of 16 July 1990, Mr Lynch appeared on the basis of his submissions to be below the threshold test applied at that time. However, the Department had consistently determined that he was above the assets and/or income required to qualify for unemployment benefits.
20. Notwithstanding that and a request by this Tribunal for further information, no records were available from the Department to attest to what his assets and income were in 1990, other than a computer entry in July 1990 showing the value of his St Lucia property as being $800,000. Likewise, Mr Lynch could not provide independent evidence of his assets at that time. It is noted by the Tribunal that while the value of his assets was not ascertainable, his eligibility for unemployment benefit was undoubtedly complicated by the value of Mr Lynch’s assets (personal and investment assets) at that time. Also, the respondent’s submission is accepted that there was no apparent reason for the Secretary to initiate a review under the 1947 Act of the decision to refuse arrears of unemployment benefit to Mr Lynch. Although his assets and income cannot now be determined, it is not strictly necessary to determine this as it is not relevant to the decision affecting the applicant here.
21. In relation to the question about whether the applicant is entitled to arrears of unemployment benefit, this is dealt with in section 168(4)(b). That provides that if a determination is made and an appeal against that decision is made outside the three month period referred to in section 168(4)(a), any favourable decision for the applicant on appeal cannot be made retrospective beyond the date on which the applicant sought review or lodged the appeal. As the applicant sought appeal thirteen years after the decision, he is therefore outside the statutory appeal period and is not entitled to recover on that basis.
22. In dealing with the other question before the Tribunal, it is clear Mr Lynch was notified in writing in July 1990. However, the decision in April 1990 and November 1990 did not have such written advice. Does this entitle Mr Lynch to the benefit of section 168(4)(a)(ii) i.e. to be regarded as having no notice of the decision and therefore to have the decision in November 1990 to be backdated to March 1990? This question is answered by Gummow J in Department of Social Security and Garratt (1992) 109 ALR 149 at 157 where his Honour said:
“Unlike section 163, section 168(4)(a) does not speak of notice being given personally or by post. The phrase it employs is ‘a notice was given’. In my view, section 168(4) is not a provision which authorises or requires any document to be served by post within the meaning of section 29 of the Acts Interpretation Act 1901 (Cth).”
23. The finding that in April 1990, June 1990 and November 1990 he was given verbal advice of rejection of his claim (in addition to the written advice of 16 July 1990), makes it clear that he had been notified of the decision and he did not seek to have the decision reviewed for thirteen years. The statutory provision was complied with and he was therefore advised of the decision within the terms of the Act. This also disentitles Mr Lynch to arrears of payment arising from the decision in November 1990 to pay unemployment benefits.
24. The Tribunal therefore decides that the decision under review is affirmed. This means that the appeal is unsuccessful.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 1 March 2005
Date of Decision 29 April 2005
The Applicant was unrepresented and appeared in person
For the Respondent Mr J Howard, Departmental Advocate
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