MARLON GUERIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 201
•5 April 2012
[2012] AATA 201
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1627
Re
MARLON GUERIN
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 5 April 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member Dr K S Levy, RFDCATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Assets test – Request for further information – Cancellation of age pension – Decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) ss 28A, 29
Administrative Appeals Tribunal Act 1975 (Cth) ss 34J
Evidence Act 1995 (Cth) ss 160, 163Social Security (Administration) Act 1999 (Cth) ss 11, 13, 63, 64, 80
CASES
Bigg v Queensland Trustees Ltd (1990) 2 Qd R 11
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
5 April 2012
INTRODUCTION
The applicant, Marlon Guerin, has appealed to this Tribunal against the decision of the Social Security Appeals Tribunal (SSAT), on 4 April 2011, affirming a decision that:
1)Mr Guerin’s age pension was correctly cancelled with effect from 19 August 2009; and
2)His subsequent application for age pension was correctly granted with effect from 14 September 2010 and not an earlier date.
The SSAT also remitted the matter back to the department to reassess the value of Mr Guerin’s assets on the basis that:
1)A disbursement of $122,563 to his son was not a gift; and
2)As a consequence, that Mr Guerin’s eligibility for age pension as at 14 September 2010 be reconsidered following an assessment of the value of his total assets.
In his application for review, dated 3 May 2011, the applicant states his reasons for seeking a review of the SSAT decision are that:
SSAT decision no 2 refusal to set aside cancellation of pension and make back payment retroactively by Centrelink from date of cancellation August 2009.
Therefore, the aspect of the SSAT decision dealing with remittal of the matter to Centrelink for recalculation of assets is not in dispute.
THE ISSUES
The issues for determination are:
1.Was cancellation of age pension with effect from 19 August 2009 legally correct?
2.With the application for age pension approved with effect from 14 September 2010, was Mr Guerin entitled to payment of arrears of age pension from 19 August 2009 (or some earlier date prior to 14 September 2010)?
HEARING ON THE PAPERS
Section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the issues in a case may be determined by a Tribunal without a hearing where the parties consent to such a review. Any such review must consider the documents or other material lodged with the Tribunal. In this case, the parties have agreed to a determination without a hearing, or as it are commonly called, a “hearing on the papers”. Mr Guerin has completed the required consent and it has been received in the Tribunal twice, on 18 January 2012 and again on 30 January 2012. The determination in this case proceeds on the basis of a hearing on the papers.
THE EVIDENCE
The record shows that Mr Guerin contacted the Cairns Centrelink office by telephone on 17 August 2009 and made a general enquiry about age pension. He advised that he had sold his property at Ryde in Sydney and that he would provide details to his local office within a few days. The Cairns Centrelink office noted that the applicant did not wish to provide details over the telephone (T-document 20, folio 185).
On 26 August 2009, it appears that there was a further enquiry as a Centrelink officer again accessed the applicant’s record. That record shows that Mr Guerin was sent a form or letter requesting him to provide a profit and loss account. The record also notes that the reason for that request was that Mr Guerin had advised that he had purchased a motel business and a determination of its effect on his age pension was necessary. It shows at that time the officer dealing with the matter included a 14 day warning with the request that if the information was not provided by 10 September 2009, then his payment would be stopped (See T-document 20, folio 183). There is a further record dated 26 August 2009 which refers to correspondence received, apparently as a result of Mr Guerin attending at the Ballina office and enquiring about age pension. There were also documents lodged about pensions for his partner. A note was made that age pension was suspended until his partner’s foreign pensions details can be “coded”. The record again reiterated the customer having advised that he had purchased a motel two weeks earlier. On 31 August 2009, an annotation was made to that record indicating foreign pension details had then been “coded” (See T-document 20, folio 184).
The original decision and other records are summarised in the report of the decision of the Authorised Review Officer (ARO) dated 18 February 2011. That report shows, in addition, that Mr Guerin remarried on 4 July 2009 and reiterates he advised Centrelink, on 17 August 2009, that he had sold his property in Ryde and that, on 26 August 2009, he provided details of his spouse’s UK pensions. On 26 August 2009, Centrelink forwarded a form (Module F) which required provision of certain business details as well as requesting a profit and loss statement for the new business. Another document requesting information about accommodation was also issued. His pension was suspended from 19 August 2009 waiting the return of the documents requested. A letter advising of that suspension was issued on 26 August 2009. That suspension was later confirmed as a cancellation of age pension (see letter 26 May 2010, T-document 19, folio 160-161) as the information requested in August 2009 had not been supplied. The cancellation was effective as from 19 August 2009.
Mr Guerin subsequently contacted Centrelink on 14 September 2010 about his cancelled age pension and was advised he would have to reapply for age pension. He was sent a letter that day acknowledging his enquiry and intention to claim age pension, which was received on 16 September 2010. In accordance with the requirements, his application was accepted to be effective from 14 September 2010.
The rate of age pension then approved took into account an amount paid to his son as a result of finalising the estate of his first wife. The value of the motel business was also taken into account as were his business income and savings account balances.
The ARO decision provided an analysis of the reasons for the decision based on the statutory provisions relevant, the requirement for exemption of the principle residential home and the amount paid to his son Peter as a result of an arrangement set out in the mutual wills of Mr Guerin and his first wife. Ultimately, the ARO determined that the eligibility for age pension under his latest application could not be paid earlier than 14 September 2010.
Mr Guerin has forwarded three submissions for consideration. The initial submission was dated 20 June 2011 and was superseded by a further and amended submission dated 18 July 2011. That submission refers to the fact that there were two decisions of relevance and that refusal to back date eligibility for pension when approval was granted for the more recent application is a matter in dispute.
I note claims made that the suspension of age pension was done at the applicant’s instigation and certain other claims that the applicant had attended Centrelink for interviews or other purposes. There is a claim in this submission that it would be impossible to produce a profit and loss account after a month of running a new business and that he was “not prepared to leave myself open to a claim of a false statement of income … I am not prepared to even appear to “bend” the law to suit, emulating Centrelink, though it seems I might have to, to get fair treatment by them”. The applicant makes a submission that it could not be the intention of Parliament to penalise somebody in his position. He also objects to the Centrelink advocate’s claims, at a conference convened by a Conference Registrar at the Administrative Appeals Tribunal, that a letter on the file is adequate evidence of the posting and receipt of a letter shown to be issued to the applicant.
Mr Guerin also made a final submission on 16 January 2012 referring to the application of some older statutes dealing with age pensions.
CONSIDERATION
I have considered all of the evidence which is available to me to determine the issues in dispute. I have considered the applicant’s submissions and while noting his claims, particularly in his submissions dated 18 July 2011 about the instigation or initiation of suspensions of age pension and attendances at various times upon Centrelink offices, as well as his capacity to produce a profit and loss statement after a month in business, I am unpersuaded by these uncorroborated claims. In addition, the complete disregard for any response or indication to the request from Centrelink between August 2009 and 14 September 2010, detract from the claimed integrity, on his part, as to his bona fides in dealing with Centrelink.
However, I note also Mr Guerin’s submission that the intention of Parliament is the key point which will assist in resolving the legal issues which he raises in his submissions. I agree with Mr Guerin’s submission in that regard.
I make the following findings of fact:
1)Mr Guerin had been receiving age pension since 30 January 2000;
2)Mr Guerin notified Centrelink in August 2009 of the sale of his house in Ryde, Sydney and the purchase of a motel business in Ballina;
3)Part of the proceeds of the sale of that house were paid to his son under what he says is a legal obligation because of mutual Wills between Mr Guerin and his first wife who died in 2007;
4)Centrelink requested Mr Guerin provide certain details about his assets and the business he had purchased and advised him he had 14 days to produce the information or his pension could be cancelled. He was subsequently advised that his pension was suspended with effect from 19 August 2009;
5)Despite a warning by Centrelink that the information requested was to be provided by 10 September 2009, the Secretary exercised his statutory powers by letter, dated 26 August 2009, to suspend Mr Guerin’s pension with effect from 19 August 2009;
6)After no further response from Mr Guerin in regard to its request for further information, Centrelink again wrote to Mr Guerin, on 26 May 2010, and advised him that his pension, which had been suspended, was now cancelled with effect from 19 August 2009;
7)Mr Guerin went to Centrelink on 14 September 2010 and provided certain information. He asked for his pension to be recommenced and was told he would have to make a fresh application. He made application within a number of days and his age pension was then approved to be effective from the date of his enquiry on 14 September 2010; and
8)Mr Guerin did not respond to Centrelink’s requests between 19 August 2009, when the request was first made, until 14 September 2010 when he subsequently provided information and was granted age pension.
I now deal specifically with the legal issues which must be determined.
Issue One – was cancellation of pension on 19 August 2009 legally correct?
At the outset, I note that much has been said in the documentation before me about the effect of the amount given to Mr Guerin’s son after the sale of his house in Ryde, Sydney. This was on the basis that Mr Guerin and his former wife had made mutual Wills and that he says that it should not have been regarded as a gift because he was under a legal obligation to pay a certain amount to his son. Mutual Wills are agreements that the surviving partner will honour the agreement that the parties had while they were both alive. Such Wills can be revoked during the lifetime of both parties provided notice is given by the party wishing to rescind the mutual Will. However, upon the death of one of the parties, the survivor is at liberty to deal with the property during his or her lifetime and while they might make another Will after the death of the first spouse, any disposition of the property to persons other than those agreed under the mutual Wills would be corrected by the Courts, unless all of the agreed beneficiaries had died. The principle involved was stated in Bigg v Queensland Trustees Ltd (1990) 2 Qd R 11 as “the foundation of the principle is … the element of equitable fraud practised upon the persons to whom the promise is made upon the faith on which Wills or settlements are either made or forborn to be made” (per McPherson J). Therefore, it seems to me that the obligation to make a payment to Mr Guerin’s son is not a legal obligation until the second party to the mutual Will dies; that is after Mr Guerin’s death. Nevertheless, the evidence shows the relevant payment was made with the agreement of all the named beneficiaries. Its classification as a gift and the valuation of assets does not require a determination by me in this decision as it is not within the bounds of the appeal.
The statutory provisions of relevance are:
1)The Secretary may require a person who is receiving a Social Security payment to provide certain information within a specified timeframe (ss 63(1) and 63(2) Social Security (Administration) Act 1999 (Cth) (the Act)).
2)The Secretary can notify the person by sending a notice by prepaid post (or in any other way the Secretary considers appropriate) addressed to the person at his or her last known postal address (s 63(7) of the Act).
3)Where the person does not comply with that requirement, the social security payment which the person is receiving or has claimed is not payable (s 64(1) of the Act).
Section 80 of the Act also provides that where the Secretary is satisfied that a social security payment is being paid to a person and that payment is not payable (which is consistent with the words in s 64(1)) then “the Secretary is to determine that the payment is to be cancelled or suspended”.
The applicant disputes the legality of the respondent relying upon a record in a departmental file claiming that a letter has been sent and that a file copy can be proof of posting and receipt. The answer to that question is to be found in what has sometimes been referred to as the ‘postal rule’, which relates to statutory interpretation of whether denial of receipt is adequate to rebut a claim of posting. In a case such as this, there is a statutory provision under s 63(7) of the Act authorising the Secretary to send a notice by pre-paid post. Under s 28A of the Acts Interpretation Act 1901 (Cth) it is provided that where an Act requires a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then service will be regarded as being effective by either leaving the letter or notice at, or by “sending it by prepaid post to, the address of the place of the residence or business of the person last known to the person serving the document” (s 28A(1)(a)(ii)). This provision guides the interpretation and the effect of the statutory provision in s 63(7) of the Act. If there was any doubt about that (and it seems to me from a legal perspective that that is not in doubt), then certainty is gained by reference to s 29 of the Acts Interpretation Act 1901 (Cth). That section provides that where an act authorises service of a document by post “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 be effected at the time at which the letter would be delivered in the ordinary course of post”.
There is no evidence to the contrary that the letter was never delivered, other than an assertion by the applicant. No evidence of a pattern of undelivered mail, for example, was presented. Mr Guerin makes various claims of inefficiency or aspects he does not like about Centrelink’s operations but, on the papers before me, there is evidence, which he apparently provided to the SSAT, that he did receive the letter of 26 August 2009. However, he claimed he did not receive the subsequent letter of 26 May 2010. In any event, it appears he did not realise that he should have responded within 14 days but he has nevertheless been advised of the requirements. Even if he did not receive the letter of 26 May 2010, he is deemed to have received it by virtue of ss 28A and 29 of the Acts Interpretation Act 1901 (Cth). There is also s 160 of the Evidence Act 1995 (Cth) which also deals with matters served by post. In s 160(1) of that act it is stated that there is a presumption that any article sent by prepaid post addressed to the person at a specified address was received at that address on the fourth working day after it had been posted (unless there is any evidence to raise a doubt about that presumption). Section 163 of the Evidence Act 1995 (Cth) deems that period to be 5 business days when posting by a Commonwealth agency is concerned. There is no evidence of any doubt other than Mr Guerin’s assertion, but even if there was any doubt, that doesn’t overcome the fact that he had been given notice by virtue of the letter of 26 August 2009.
I therefore find that the statutory provisions prescribed have been satisfied and therefore, in light of the evidence, the cancellation of the age pension with effect from 19 August 2009 was legally effective.
Issue Two – With regard to the application for age pension approved with effect from 14 September 2010, was Mr Guerin entitled to payment of arrears of age pension from 19 August 2009 (or some earlier date prior to 14 September 2010)?
The matters in respect of issue one are interrelated with question two. The facts are clear that Mr Guerin reapplied for age pension on 14 September 2010. The only question is whether he can be deemed to be entitled to payment from a date earlier than 14 September 2010. The starting point to answer this question is s 11 of the Act. That provision requires that any person who wishes to be granted a social security payment must make a claim in accordance with the Act. That is a mandatory requirement and has been satisfied.
Section 13 of the Act provides that where a person contacts the department indicating the person wishes to make a claim and is qualified for the social security payment on the day they contact the department, then, if the person then lodges a claim formally within 14 days of that date, that person will be taken, or to have been deemed, to have made a claim on the date the department was contacted (s 13(1)). That is the case here.
The Secretary submits that there is no other provision in the Act which would allow for the applicant to be paid from an earlier date. I accept that submission. The claim which commenced on 14 September 2010 is a fresh and distinct claim for social security payment from the former period when Mr Guerin was entitled to age pension. That first period was suspended and was finally cancelled. Issue one shows there is no redeeming feature from a legal perspective which can entitle a back payment. That being so, the claim under issue two is distinct and no further back dating is possible beyond 14 September 2010. That is because the Statute does not empower the making of such a decision. The Parliament, therefore, did intend that this law apply to the facts of Mr Guerin’s case. Any other interpretation would be an unreasonable burden on the public revenue.
I therefore find that the claim under issue two cannot succeed.
DECISION
The decision under review is affirmed.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD.
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Associate
Dated 5 April 2012
Hearing on the Papers 6 February 2012
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