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

Marcos and Secretary, Department of Social Services (Social services second review) [2017] AATA 1510 (19 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1176
Re:Adly Marcos
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor McCallum
Date:19 September 2017
Place:Sydney

The decision under review is affirmed.
......................[sgd].. ................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – pension bonus scheme – applicant appealed decision to reject his application to join the pension bonus scheme out of time – whether notice sent to applicant – notice sent – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 23, 92C, 92H
Social Security (Administration) Act 1999 (Cth) ss 129, 237
Acts Interpretation Act 1901 (Cth) s 29
CASES
Allen and Secretary, Department of Social Services [2016] AATA 95
Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224
Re Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 19; 92 ALR 93
REASONS FOR DECISION
Professor McCallum AO, Member
19 September 2017
BACKGROUND

The Applicant, Mr Adly Marcos is a taxi driver.
Mr Marcos was born in Egypt and arrived in Australia in 1977. In about 1980 he became an Australian citizen. After taking several jobs, he commenced driving a taxi in 1981.
On XX October 2008, Mr Marcos reached pensionable age. In other words, he turned 65 and became entitled to receive the Age Pension. However, he did not immediately apply for the Age Pension, but instead kept working by driving a taxi.
On 29 April 2014, Mr Marcos visited an office of the Department of Human Services which is better known as Centrelink. It appears that he learned for the first time about the Pension Bonus Scheme (PBS).
THE PENSION BONUS SCHEME
The pension bonus scheme (PBS) enabled persons who continued working after pensionable age to obtain a lump sum bonus once they received the aged pension. The purpose of the scheme was to financially reward persons who continued working after pensionable age. Their employment contributed to the buoyancy of the labour market, to Australia’s productivity and saved the Commonwealth Government money because they delayed taking up the Age Pension.
The PBS was open to those persons who reached pensionable age on or after 1 July 1998. The Australian Government subsequently decided to close the PBS, and so it ceased to apply to persons who qualified for the aged pension on or after 20 September 2009.
The relevant legislation covering the PBS is to be found in Part 2.2A of the Social Security Act 1991 (Cth) (the SS Act) as it was at that time.
The PBS is a detailed scheme which is unpacked by Senior Member Egon Fice in Polchow and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 224 at [6]-[19].
Section 92C paragraph (c) of the SS Act clearly states that a person must be a member of the PBS to qualify to receive a pension bonus. Section 92C relevantly provides as follows:
92C Qualification for pension bonus
A person is qualified for a pension bonus if:
…
(c)The person is registered as a member of the pension bonus scheme;
Under subsection 92H(1) of the SS Act, persons were required to register for the PBS during the registration period. This period commenced 13 weeks before they reached pensionable age, and concluded 13 weeks after they had attained pensionable age. They could then undertake work, and receive a pension bonus when they took up the Age Pension. However, under subsection 92H(3) of the SS Act, persons who failed to register during the registration period could apply to the Secretary for late registration to the PBS. Subsections 92H(3) and (4) which outline the process of late application are as follows:
(3) The Secretary may extend the period within which a person must lodge an application. If registration occurs as a result of an application lodged during an extended period, the registration takes effect:
(a)on the date on which the application is lodged; or
(b) if the Secretary decides that it should take effect on another date—on that other date.
(4) The Secretary must not make a decision to extend the period within which a person must lodge an application unless, if it were assumed that the person had been a member of the pension bonus scheme throughout the pre-application period:
(a)the person would have been a non-accruing member for all of the pre-application period; or
(b)both:
(i)     the person would have been an accruing member for some or all of the pre-application period; and
(ii)    The person would have passed the work test for each test period that is applicable to the person.
Note 1: Pre-application period is defined by subsection (5).
Note 2: Test period is defined by subsection (6).
MR MARCOS APPLIES FOR REGISTRATION
Mr Marcos applied for late registration to the PBS on 29 April 2014. It will be recalled that this was the day on which he had first made inquiries of Centrelink.
On that same day, 29 April 2014, Centrelink posted a notice to Mr Marcos at his home address. This notice was dated 29 April 2014 and the material portion of this notice is as follows:
Dear Mr Marcos
Your intention to claim a payment
This letter is to confirm that Centrelink was contacted on 29 April 2014 about your intention to claim a payment.
What you need to do
To make sure that you receive your payment from the earliest date possible, you must return your claim and any requested documentation on or before 13 May 2014. You can return the requested information to any Centrelink Customer Service Centre. If there is any reason why you cannot do this, please contact us immediately.
Please note that the statement above does not apply to payments not covered by social security law. This may include, but is not limited to, Assistance for Isolated Children (AIC), ABSTUDY and payments made under Family Assistance and Farm Household Support Act.
What happens next?
Once we have received your claim and all requested documentation, we will make a decision about whether you are eligible and write again to let you know.
Information you should know
If you have any questions or would like any more information, please call us on the number shown in the Contact information section on the back of this letter.
On 23 May 2014, an officer of Centrelink wrote to Mr Marcos seeking further information to determine his registration under the PBS. The notice was sent to Mr Marcos’ home address. The material portion of this notice is as follows:
Dear Mr Marcos
Request for information
We are writing to ask for more information to help us make the right decision about your claim for Age Pension.
Thank you for lodging Pension Bonus Registration however we still require further information before we can proceed with the registration.
What you need to do
You need to provide the following listed information by 6 June 2014:
1)    please provide a letter from the employer stating that you have worked at least 960 hours per year since turning age pen age 10/10/2008 until todate or
2)    if you are running a business, please provide a letter from the accountant stating the hours worked since turning age pension age and tax returns 2009 to 2013 as proof of gainful employment.
3)    a cover letter stating the reason for late registration.
How to provide the information
You can provide this information by:
·mailing to the address shown at the top of this letter
·visiting your nearest Centrelink Customer Service Centre
If you would like any original documents returned to you, let us know so we can return them by registered mail.
If you don’t provide this information
If you don’t provide this information by 6 June 2014 your Age Pension may be rejected. If you can't provide the information by the due date you need to contact us.
Our authority to request this information
Section 192 of the Social Security (Administration) Act 1999 allows the Secretary or a delegate to require any person to give information relevant to Centrelink customers receiving their correct entitlement. This is a notice requesting information under Division 1 of Part 5 of the Social Security (Administration) Act 1999 and given to you under Section 196 of that Act.
Information you should know
If you have any questions, would like more information or you are unable to provide the requested information please call us on the number shown at the top of this letter.
Mr Marcos maintains that he did not receive this notice. As Centrelink did not receive a reply to this notice, Centrelink made a decision to refuse Mr Marcos late application for the PBS. On 26 June 2014, Centrelink sent Mr Marcos the following notice to his home address. The material portion of this notice is as follows:
Dear Mr Marcos
Your registration for the Pension Bonus Scheme has been rejected
We are writing to you about your recent application to register as a member of the Pension Bonus Scheme.
After careful consideration, a decision has been made to reject your application to register as a member of the Scheme. This is because you failed to response to our request.
More information about the Pension Bonus Scheme can be found in the Pension Bonus Scheme brochure or at our website has based this decision on information provided by you and/or Australia's immigration department.
This is a notice of a decision made under social security law. Information about what to do if you think this decision is wrong is on the back of this letter.
Information you should know
If you have any questions or would like more information, please call us on the number shown at the top of the letter.
Mr Marcos also maintains that he did not receive this notice.
A year later on 12 June 2015, Mr Marcos made an application for the Age Pension and also for payment under the PBS of a pension bonus. He also included a business details form.
At that time, Mr Marcos was under the impression that his late registration for the PBS had been successful.
On 12 August 2015, Mr Marcos sent a handwritten letter to Centrelink, giving details of the value of his taxi plate.
On 13 October 2015, Mr Marcos began receiving Age Pension payments backdated to 12 June 2015.
However, on 14 January 2016, Centrelink sent Mr Marcos a notice to his home address. It said that Centrelink had decided that Mr Marcos could not receive a pension bonus because he had not been registered under the PBS.
Mr Marcos Seeks Reviews
I infer that Mr Marcos received the notice dated 14 January 2016 because on that day Mr Marcos sought review from an Authorised Review Officer (ARO). However, on 16 February 2016, the ARO affirmed the decision of Centrelink dated 14 January 2016.
The ARO reasoned that as Mr Marcos had not been registered under the PBS, a pension bonus could not be paid. The ARO stated that the decision not to register Mr Marcos under the PBS, which was sent to him in writing on 26 June 2014, could not be reviewed by the ARO. This was because under subsection 129(3) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Mr Marcos could only seek review in the period of 13 weeks after being notified of the decision. This 13 week period commenced on 27 June 2014 and concluded on 26 September 2014. Subsections 129 (1) and (3) of the Administration Act are as follows:
129 Application for review
(1) Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
(3) If:
(a)an officer makes a decision under the social security law in relation to pension bonus, low income supplement or essential medical equipment payment, and
(b)notice is given to the person concerned;
the person is not entitled to make an application under subsection (1) for review of the decision more than 13 weeks after the giving of the notice.
Mr Marcos sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). On 28 June 2016, the AAT1 affirmed Centrelink’s decision and agreed with the reasoning of the ARO.
On 1 March 2017, Mr Marcos sought review from the General Division of the AAT which is known as an AAT second review (AAT2).
As this application was out of time, on 7 April 2017, the AAT2 decided to grant Mr Marcos an extension of time pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
THE HEARING
Mr Marcos was legally represented.
Mr Marcos gave sworn evidence. I found him to be an honest witness who did his best to assist this Tribunal.
Mr Bala Rajhgoopal gave evidence by affirmation over the telephone. He had signed a witness statement dated 21 July 2017 which was admitted into evidence. Mr Rajhgoopal is a customer service officer who is employed by the Department of Human Services. He confirmed his witness statement and gave evidence about how the letters of 23 May 2014 and 26 June 2014 were prepared and posted to Mr Marcos.
Mr Rajhgoopal did his best to assist this Tribunal.
CONSIDERATION
The primary issue before me is whether this Tribunal has jurisdiction to hear Mr Marcos’ appeal against the decision to reject his application to join the PBS. Centrelink notified Mr Marcos of this decision in a notice dated 26 June 2014 which was posted to his home address. The material portion of this notice is quoted above.
Pursuant to subsection 129(3) of the Administration Act which is quoted above, Mr Marcos had 13 weeks in which to institute an appeal where “notice is given to the person concerned”.
Was a notice sent to Mr Marcos?
Given the many thousands of notices which Centrelink sends to applicants and recipients of social security benefits, the Australian Parliament has enacted provisions concerning the giving and receipt of notices.
Section 237 of the Administration Act relevantly 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.
(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.
Section 23 of the SS Act contains the dictionary. Subsection 23(12) is as follows:
12) If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Subsection 29(1) of the Acts Interpretation Act 1901 (Cth) provides as follows:
29 (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 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.
These interlocking provisions make it clear that if Centrelink properly addressed and posted the notice of 26 June 2014, Mr Marcos is deemed to have received the notice.
In his affidavit and oral evidence, Mr Marcos maintained that he did not receive the notices dated 23 May 2014 and 26 June 2014. He intimated that as he had received mail addressed to persons nearby, perhaps these letters were delivered to the wrong address.
It is clear that Mr Marcos did receive the notice of 14 January 2016 because he immediately sought review of the decision by an ARO.
In his witness statement and in his oral evidence, Mr Rajhgoopal explained how the notice of 26 June 2014 was generated, addressed and posted to Mr Marcos. Mr Rajhgoopal gave evidence that Centrelink had not received a notice that the letter was undeliverable.
Having regard to the written and oral evidence before this Tribunal, I find that the notice of 26 June 2014 was sent to Mr Marcos at his home address. In accordance with section 237 of the Administration Act and subsection 23(12) of the SS Act, I find that the notice was properly given to Mr Marcos.
It is likely that Mr Marcos forgot about these notices.
In any event, as Mr Marcos received notice of the decision to reject his application to join the PBS, the 13 week time limit on appeals set out in subsection 129(3) of the Administration Act applies.
There is no discretion enabling me to hear this appeal when the time limit has expired.
Other arguments
It was suggested that it would be open to this Tribunal to hold that the time for Mr Marcos to become a late member of the PBS be extended to the date of the hearing, and to remit the matter back to the Secretary for further consideration. This could be done pursuant to subsections 92H(3) and (4) of the SS Act which are quoted above.
The Tribunal was referred to Allen and Secretary, Department of Social Services [2016] AATA 95. In that case, the Administrative Appeals Tribunal extended the time for the Applicant to make a late application to join the PBS. On the evidence before it, the Tribunal held that the Applicant had applied for late registration. However, the records were sparse, and there was no record of a letter being sent to the Applicant either accepting or rejecting his application. Therefore, the time limit in subsection 129(3) of the SS Act was not applicable.
As Mr Marcos’ appeal is out of time, there is no discretion in the SS Act to extend the date on which to make a late application to join the PBS.
It was briefly suggested that the doctrine of estoppel applied in this instance. The argument appeared to be that Centrelink had made representations concerning the PBS, and that in furnishing information to Centrelink, Mr Marcos had acted upon this representation to his detriment.
However, it is clear that the rules of estoppel cannot fetter the future exercise of discretionary powers reposed in persons by statute: see Re Minister of Immigration, Local Government and Ethnic AffairsvKurtovic [1990] FCA 19; 92 ALR 93. Put another way, even where a representation is relied upon, it cannot prevent the future exercise of discretionary powers which are set out in statutes.
CONCLUSION
I have found that there is no jurisdiction for this Tribunal to hear Mr Marcos appeal as he sought review outside the 13 week time limit.
From his evidence before me, I find that Mr Marcos worked hard to build a life for himself and his family in Australia. English is not his first language, and it is not surprising to me that he did not know about the PBS. I wish him well in his future.
DECISION
The decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Professor McCallum

.........................[sgd]...............................................
Associate
Dated: 19 September 2017

Date(s) of hearing: 29 August 2017

Solicitors for the Applicant: Mr C Stapley, Gordon Wells & Co

Solicitors for the Respondent: Mr S Davidson, Department of Human Services

[2017] AATA 1510

19 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	29 August 2017
Solicitors for the Applicant:	Mr C Stapley, Gordon Wells & Co
Solicitors for the Respondent:	Mr S Davidson, Department of Human Services