Maher and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1416

Maher and Secretary, Department of Social Services (Social services second review) [2020] AATA 1416 (21 May 2020)
Division:GENERAL DIVISION
File Number: 2019/2595
Re:Rosemary Maher
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:21 May 2020
Place:Perth

The Tribunal affirms the decision under review.
………[sgd]…………………………….
Brigadier A G Warner, Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether Applicant’s age pension was correctly cancelled – whether age pension can be reinstated from date of cancellation – whether Applicant received or was taken to have received Centrelink notices – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 23(12)(a)
Social Security (Administration) Act 1999 (Cth) – ss 68, 68(2), 81, 85, 109, 109(1), 109(2), 237
CASES
Re Akdag and Secretary, Department of Family and Community Services [2001] AATA 912; (2002) 67 ALD 255
Re Brockhurst and Secretary, Department of Social Services (2016) 154 ALD 363
JKLRS and Secretary, Department of Family and Community Services [2002] AATA 816
Scott v Secretary, Department of Social Security (2000) 65 ALD 79
Tramonte and Secretary, Department of Family and Community Services [2004] AATA 26
REASONS FOR DECISION
Brigadier A G Warner, Member
21 May 2020
INTRODUCTION

Mrs Maher seeks review of a decision made by the Child Support & Social Services Division of the Administrative Appeals Tribunal (AAT1) made on 8 April 2019, which affirmed a decision of the Department of Human Services (the Department), now known as Services Australia, to cancel Mrs Maher’s age pension from 26 September 2016.
A hearing was conducted on 5 May 2020 by telephone conference. Ms Maher was supported by her husband, Dr Maher and both gave evidence on affirmation.
Ms Laura Hinwood represented the Respondent, and also participated by telephone conference.
BACKGROUND
Mrs Maher was born in 1944 and has been in receipt of age pension since 10 January 2007 (T23/182).
The Department’s records indicate that Mrs Maher has maintained the same postal address since 3 September 2009 (T23/184).
On 1 August 2016 the Department issued a notice to Mrs Maher seeking information about her income stream/s. The notice relevantly stated in part (T4/96):
If you do not do this
If you do not provide this information within 21 days of the date shown at the top of this letter, your payment may be stopped.
(Original emphasis.)
On 29 August 2016 the Department issued a further notice to Mrs Maher seeking information about her income stream/s. The notice relevantly stated in part (T5/99):
If you do not do this
If you do not provide this information within 21 days of the date shown at the top of this letter, your payment may be stopped.
(Original emphasis.)
On 26 September 2016, the Department issued a notice (T6/102–3) to Mrs Maher advising her that her age pension was suspended because she had not responded to the income stream review letter the Department had sent to her (T6/102). The notice relevantly stated (T6/103):
If you do not agree with a decision we have made
·Contact us so we can check the details and explain the decision.
·Contact us and ask for a review of the decision. We will change it if it is wrong.
·Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.
·If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au
All of the above are free of charge.
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. 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.
On 28 December 2016, the Department issued a notice (T8/106–7) to Mrs Maher advising her that her age pension was stopped because she had not responded to the income stream review letter the Department had sent to her and her Pensioner Concession Card will no longer be valid after 25 September 2016. The notice relevantly stated (T8/107):
If you do not agree with a decision we have made
·Contact us so we can check the details and explain the decision.
·Contact us and ask for a review of the decision. We will change it if it is wrong.
·Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.
·If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au
All of the above are free of charge.
If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. 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.
On 27 July 2017, Mrs Maher lodged a further claim for age pension (T10/110) and requested review of the decision to cancel her age pension (T11/116–8). Mrs Maher’s claim for age pension was granted on 24 August 2017 with effect from 25 July 2017 (T14/126).
On 16 October 2018 an Authorised Review Officer (ARO) affirmed the 28 December 2016 decision to cancel Mrs Maher’s age pension from 26 September 2016 (T17/136). Mrs Maher sought review of the ARO’s decision by the AAT1, and in a decision dated 8 April 2019, the AAT1 affirmed the ARO’s decision (T2/15–19). In its decision, the AAT1 stated:
The tribunal concluded there was insufficient evidence for it to conclude it had been proven the letters from Centrelink had not been delivered to the applicant. Consequently, the tribunal is required in law to regard the mail as having been delivered in the normal manner, and that the applicant was notified of the decisions to suspend and then cancel her age pension (T2/19).
On 11 May 2019, Mrs Maher applied to the General Division of this Tribunal for review of the AAT1 decision (T1/1). Her application for review stated (T1/2):
We feel the decision resulting from the first hearing did not adequately weigh several of the matters Rosemary Maher tabled for that hearing. It seems that these discounted matters resulted in an unfair conclusion which seemed to be based entirely on ‘process’. These matters were significant and need to be considered in coming to a ‘just and fair’ decision.
The first hearing also left a dark smudge on Rosemary’s integrity and truthfulness and impugned her character and this too is unfair. She took an oath on the Bible to tell the truth as she recalled it, and she did. These Items (Items 18, 20 and 22 in particular) need to be reviewed in a second hearing.
It also seems that in Item 18 the Tribunal may have conflated critical dates and considered that the pension was not paid for the period between 28 Dec 2016 and July 2017 (the ‘decision’/ ‘termination’/ ‘cancellation’ date), when in fact it was not paid from the 26th Sept 2016 (suspension date) through to the 25th July 2017. This is approximately ten months, not six months as they seemed to say - although the language is a little tortuous and what they are saying is actually not all that clear but we have tried to address that in the attached document.
It is important to take account of time passing in this case the sands have shifted underfoot between
(1) the beginning of the problem in mid 2015, then
(2) with a critical GESB letter that was not delivered in 2016, and
(3) the six months it took for Synergy to give us the correct information, to
(4) the final realisation that the pension has been terminated in mid-July 2017, then
(5) the 12 months it took for Centrelink ignoring Rosemary’s Appeal request, and then
(6) the first Tribunal hearing in April 2019.
Most of this delay was a direct consequence of Centrelink ignoring Rosemary’s request for a Review for a year. That was, apparently, not considered by the first hearing and Centrelink looked away from that negligence on their own part with a dismissive apology - but at the same time, had it both ways by also exonerating themselves from any negligence in ensuring the mail, they say they sent, was actually delivered. This was at a time when Centrelink’s own behaviour and processes were called into question in Federal Parliament. Again, they offered the Tribunal no evidence or proof. Their claim was based on the assertion that it was their ‘policy’. Well, it is also their ‘policy’ to deal with a request for an Appeal and they ignored that for a full year. This calls into question the veracity of Centrelink’s claims and the integrity of their computer systems - which held the documents they say they sent and Rosemary’s Appeal document they ignored for a year. The first hearing relied on these doubtful Centrelink claims by Centrelink and gave no weight to their failings. This lends weight to Rosemary’s claim, made under solemn oath. that she did not receive the Centrelink letters or the critical GESB Annual Review letter and the statements made by Synergy were made as she said they were made.
We have tried to set out, as well as we can, in the attached document why these and other concerns lead us to the conclusion that the first hearing was limited and did not consider several critical matters or weigh some concerns adequately enough to go beyond ‘process’ in Centrelinks favour to ‘justice and equity’ in Rosemary’s favour.
That is why Rosemary is respectfully requesting a second hearing - so that these matters can be honestly considered in the expectation that a final decision will be based on fairness and equity and result in her pension for the period

26th September 2016 to July 25th being restored.
ISSUES
The Tribunal must decide whether the decision to cancel Mrs Maher’s age pension from

26 September 2016 was the correct or preferable decision; and, if not whether her age pension can be re-instated from that date.
LEGISLATION AND POLICY
The relevant legislation is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
Subsection 68(2) of the Administration Act states that the Secretary may issue a notice requiring a person to provide one or more statements about a matter that might affect the payment to the person of a social security payment.
Section 81 of the Administration Act states that if a person is given a notice under s 68 of the Administration Act, and the person does not comply with the requirement of that notice, the Secretary may determine that the person’s payment is to be suspended or cancelled.
Section 108 of the Administration Act defines a ‘favourable determination’ as including determinations made under ss 78, 85 and 85A. Section 85 of the Administration Act is relevant to the present consideration as it provides that if a person’s social security payment is cancelled under s 81, and the Secretary reconsiders the decision and decides that the payment was or is payable to the person, the Secretary is to determine that the payment was or is payable to the person.
The Administration Act provides guidance on the date of effect of favourable determinations where a review has been sought. Subsection 109(2) provides, in summary, that where a decision is made in relation to a social security payment and a notice of that decision is given to the person, if the person does not apply for review of that decision within 13 weeks of the notice being given, a favourable determination can only have effect from the date the person sought review. Where a review is sought within 13 weeks of notice of the decision being given, the favourable determination takes effect from the date of effect of the original decision (s 109(1) of the Administration Act).
Section 237 of the Administration Act provides that if a notice is posted to a person’s postal address last known to the Secretary, the notice is taken, for the purposes of social security law, to have been given to that person unless the person can prove otherwise.
Paragraph 23(12)(a) of the Act provides that s 237 of the Administration Act applies ‘even if the Secretary is satisfied that the person did not actually receive the notice’.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it the following evidence:
·the ‘T-Documents’ (T1–T23, pp 1–189);
·
Applicant’s evidence on relationship status provided to Centrelink dated

16 September 2015, received by the Tribunal on 1 May 2020 (Exhibit A1);
·Applicant’s statement received 1 May 2020 (Exhibit A2);
·Applicant’s submissions received 6 December 2019 (Exhibit A3);
·Applicant’s submission received 10 September 2019 (Exhibit A4);
·Applicant’s submissions received 5 August 2019 (Exhibit A5);
·Applicant’s submissions received 11 July 2019 (Exhibit A6);
·Applicant’s submissions received 10 July 2019 (Exhibit A7);
·Applicant’s letter of support from Ben Morton MP dated 27 May 2019 (Exhibit A8);
·Applicant’s letter of support from Ben Morton MP dated 13 May 2019 (Exhibit A9);
·Secretary’s Statement of Facts, Issues and Contentions dated 15 October 2019 (Exhibit R1);
·the oral evidence of Dr Patrick Maher; and
·the oral evidence of the Applicant.
CONSIDERATION
Cancellation decision
As outlined at paragraphs [6] and [7] above, the Department sent notices to Mrs Maher on 1 August 2016 (T4/96) and 29 August 2016 (T5/99) requiring her to provide information regarding her income stream/s. The crux of Mrs Maher’s appeal is that she claims not to have received these letters.
Throughout the course of this matter, Mrs Maher and Dr Maher have submitted that the non-receipt of the letters could be attributed to issues at the post office during the relevant period – the regular postie was off sick, there were replacement posties, or posties are not required to return undelivered mail to the post office and can dispose of it. Mrs Maher told the Tribunal that she had always done the right thing by Centrelink and did not understand why anybody would think she was so stupid as to ignore Centrelink letters. She said that ‘it’s just beggars belief that people would think I would do anything to get in the way of my receiving my pension’ (Transcript p 12).
There is no evidence before the Tribunal that each of the notices sent to Mrs Maher was not correctly addressed, and there is no evidence to suggest they were not posted to her. Clearly noting that this review is of course de novo, the Tribunal reaches a similar conclusion to that reached by the AAT1 (see paragraph [11] above), that there is no evidence before the Tribunal capable of displacing the presumption that Mrs Maher did receive the notices.
The Respondent relevantly cites the cases of JKLRS and Secretary, Department of Family and Community Services [2002] AATA 816 at [66] and Re Brockhurst and Secretary, Department of Social Services (2016) 154 ALD 363, 368–9 [30]) in contending, correctly in the Tribunal’s view, that ‘provided the letter was correctly addressed and posted, the Applicant is taken to have received the notice, even if the Tribunal were satisfied that the Applicant did not actually receive the notice’ (Exhibit R1, pp 4 [23]).
In the matter of Tramonte and Secretary, Department of Family and Community Services [2004] AATA 26, the applicant and his wife both gave evidence that they did not receive a notice about the rate of Newstart Allowance, however there was no evidence before the Tribunal that the letter was either incorrectly addressed or mishandled. Accordingly, the Tribunal was obliged to find that the relevant letter was deemed to have been received by the applicant.
Re Akdag and Secretary, Department of Family and Community Services [2001] AATA 912; (2002) 67 ALD 255, the Tribunal was considering Centrelink’s decision to cancel the applicant’s youth allowance because he did not respond to a letter asking whether he was continuing study in the following year. The decision to cancel was advised to the applicant in a letter addressed to his usual residential address. The applicant and his mother gave evidence that they did not receive either letter and that they only became aware five months later that payment had stopped when they checked the bank account into which the youth allowance had been paid. On the evidence, the Tribunal found that Centrelink had complied with the notice provisions required under the Act in relation to the cancellation of benefit and s 237 of the Administration Act operated to deem receipt.
In recent submissions, Dr Maher advised that on 16 September 2015, he and Mrs Maher attended a Centrelink office in relation to their financial affairs. Dr Maher told the Tribunal:
At that meeting, the Centrelink officer, knowing our case then, suggested strongly that we have a reciprocal arrangement notarised on our documents that I was committed to discuss Rosemary’s payments and other Centrelink matters, it was understood, and she would be able to discuss my payments and Centrelink matters (Transcript p 7).
Dr Maher submits that this documented arrangement which states ‘I permit Rosemary to discuss my payments. I am permitted to discuss Rosemary’s payments’, required Centrelink to contact him before sending the letters dated 1 August 2016, 29 August 2016,

26 September 2016 and 28 December 2016. Dr Maher contends that had he been contacted or the letters received, Mrs Maher would have responded, and Centrelink not contacting him constituted a failure of their duty of care and a lack of diligence. Before the Tribunal, Dr Maher said: ‘So if you think about that, really, the whole case pivots there…’ (Transcript p 7).
In relation to Dr Maher’s submissions outlined in the two preceding paragraphs, the Respondent relevantly cites the matter of Scott v Secretary, Department of Social Security (2000) 65 ALD 79, 88 in which the Court found (at [23]) that there was no obligation on what was then the Department: ‘…to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her circumstances’ (Transcript p 9).
The Respondent contends that:
… it is not incumbent upon the agency or Centrelink to have specific knowledge of a person’s personal circumstances as to whether, for example, letters are received or are not received. The obligation that is on the agency as the department that is responsible for administering social security law is simply to ensure that notices are posted (Transcript p 10).
The Tribunal accepts the evidence that Dr Maher and Mrs Maher put in place an authorisation or understanding with Centrelink on 16 September 2015. The Tribunal does not consider that this authorisation establishes a positive obligation on the part of Centrelink to contact either of the parties in any circumstances. Rather, it would allow Dr Maher or

Mrs Maher to talk about the other’s payments should they contact Centrelink, as permission to do so is recorded. The Tribunal finds that the existence and provisions of the

16 September 2015 authorisation (or understanding) do not disturb the deeming provisions of s 237 of the Administration Act as they apply to the letters sent to Mrs Maher.
Having careful regard to the evidence and the relevant legislation, the Tribunal finds that Mrs Maher received, or is taken to have received, the Centrelink notices sent on

1 August 2016 (T4/96) and 29 August 2016 (T5/99) seeking advice on her income streams. These notices required Mrs Maher to provide the requested advice within 21 days of the date of the notice. As Mrs Maher did not do so, it was open to the Department to suspend Mrs Maher’s age pension on 26 September 2016 (T6/102), pursuant to s 81 of the Administration Act.

Having received no further correspondence or contact from Mrs Maher in response to the notice of suspension, it was open to the Department to cancel Mrs Maher’s age pension on 28 December 2016 (T8/106), with effect from 26 September 2016, pursuant to s 81 of the Administration Act. It follows that the decision to cancel Mrs Maher’s age pension from

26 September 2016 was the correct or preferable decision.
Date of reinstatement
As the Tribunal has found that the decision to cancel Mrs Maher’s age pension from

26 September 2016 was correct, it is not necessary for the Tribunal to consider a date of reinstatement. However, the Tribunal notes the Respondent’s submissions on this issue at paragraphs [28] to [35] of Exhibit R1, and agrees with the Respondent’s conclusion:
The Secretary notes that the Applicant has since claimed, and been granted, age pension with effect from 25 July 2017. Accordingly, even if the decision to cancel the Applicant’s age pension was incorrect, it would be futile to reinstate the Applicant’s age pension from 27 July 2017 as she was already receiving age pension from that date (Exhibit R1, pp 5 [35]).
CONCLUSION
For the above reasons, the Tribunal finds that the decision to cancel Mrs Maher’s age pension from 26 September 2016 was the correct or preferable decision.
The Tribunal considered Mrs Maher to be sincere in her application to the Tribunal, and that her evidence and that of Dr Maher was truthful. During the hearing, the Respondent said that ‘this is a case where the law is very clear’ and assured Mrs Maher that there was no suggestion that she had stupidly ignored the Centrelink letters and that there was no issue with her and Dr Maher regarding their truthfulness and credibility as witnesses

(see paragraph [23] above; Transcript p 13).
The Respondent alerted Mrs Maher and Dr Maher to the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) as an alternative option should they consider that Centrelink had been defective in its administration and they had suffered detriment as a consequence.
DECISION
The Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the Tribunal dated 8 April 2019.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

.....[Sgd]...................................................................
Associate
Dated: 21 May 2020

Date of hearing: 5 May 2020

Applicant: By phone

Counsel for the Respondent: Ms L Hinwood

Date of hearing:	5 May 2020
Applicant:	By phone
Counsel for the Respondent:	Ms L Hinwood