Mastrodomenico and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 323
•12 May 2011
Administrative Appeals Tribunal
REASONS FOR DECISION [2011] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5178
GENERAL ADMINISTRATIVE DIVISION ) Re LEONARDO MASTRODOMENICO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms K Hogan, Member Date 12 May 2011
PlacePerth
Decision The decision under review, as varied by the Secretary on 4 March 2011 to pay age pension at an increased rate from 24 April 2010 and not from an earlier date, is affirmed.
... ..(sgd) Ms K Hogan....
Member
CATCHWORDS
SOCIAL SECURITY — Age pension — benefits paid at rates lower than entitled —error by Centrelink — “notice" for the purposes of s109 of the Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
12 May 2011 Ms K Hogan, Member
History
1. The applicant, Mr Mastrodomenico, was in receipt of age pension and on 26 September 2006 he informed Centrelink that he had made a deposit of $40,000.00 towards the purchase of a block of land. Centrelink updated his record to include the $40,000.00 among his assets as “other assets”.
2. On 14 April 2008 Mr Mastrodomenico informed Centrelink that the property deal had fallen through, the $40,000.00 deposit had been returned to him and he had deposited the funds in his bank account. Centrelink updated his bank account details but continued to record the $40,000.00 deposit as “other assets”.
3. The “other assets” of $40,000.00 remained on Mr Mastrodomenico’s record until he re-advised Centrelink on 13 August 2010 that the $40,000.00 deposit had been refunded. Centrelink then made a favourable determination to pay age pension at a higher rate from 13 August 2010.
4. Mr Mastrodomenico requested a review of the decision to pay age pension at a higher rate from 13 August 2010 and not from an earlier date. He said that he had been underpaid for 2 years and should be paid arrears. On 21 September 2010 a Centrelink Authorised Review Officer affirmed the decision.
5. On 8 October 2010 Mr Mastrodomenico lodged an appeal to the Social Security Appeals Tribunal who on 3 November 2010 decided to affirm the decision under review to pay age pension at an increased rate from 30 August 2010 and not from an earlier date.
6. Mr Mastrodomenico lodged an appeal with this Tribunal on 26 November 2010.
7. On 4 March 2011 the Secretary varied the decision so that Mr Mastrodomenico was paid at the increased rate from 24 April 2010 and not from an earlier date.
Issues for Determination
8. The issues to be considered by the Tribunal are:
(i) whether Mr Mastrodomenico is entitled under social security law to be paid age pension at a higher rate; and
(ii) if so, from what date?
Legislation
9. A determination in this matter requires consideration of the Social Security Act 1991 ("the Act") and the Social Security (Administration) Act 1999 ("the Administration Act").
10. Section 55 of the Act relevantly states that a person’s age pension rate is worked out using the Pension Rate Calculator A at the end of section 1064 of the Act. The Pension Rate Calculator provides that a person’s maximum payment rate may be reduced by applying the income test or the assets test. The test that produces the lower rate is the applicable test.
11. Section 8 of the Act contains the income test definitions and section 11 the assets test definitions. Relevant to the present case, sub-section 11(1) states: “ ‘asset’ means property or money (including property or money outside Australia)”.
12. Section 1118 of the Act provides that certain assets including the value of the person’s principal home must be disregarded in calculating the value of a person’s assets.
13. Section 129 of the Administration Act provides that a person affected by a decision of an officer under the social security law may apply to the Secretary for a review of the decision.
14. Sub-sections 109(1) and 109(2) combine to provide that if Centrelink makes an original decision in relation to a person’s social security payment, and issues the person with a “notice” advising of the decision, then arrears can be paid from the date of the original decision if the request for review was made within 13 weeks from the date of the notice, otherwise arrears can only be paid from the date of the request for review. Sub-section 109(3) provides that if no notice of the original decision was issued, then arrears can be paid from the original decision date.
15. Specifically, section 109 of the Administration Act provides:
109 (1) If:
(a) 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.
109(2) If:
(a) 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) more than 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 application for review was made.
109(3) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) the person is not given notice of the original decision; and
(c) 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. Section 78 of the Administration Act provides for the Secretary to determine the rate to be increased if it is being or has been paid at less than the rate provided for by the social security law.
17. Section 109 of the Administration Act provides the date of effect of a favourable determination resulting from review.
18. Section 110 of the Administration Act provides the date of effect of a favourable determination following a person having informed the Department of the occurrence of an event or change in circumstances.
19. Section 129 of the Administration Act provides that a person effected by a decision under the social security law may apply for a review of the decision.
20. Section 180(1) of the Administration Act requires that the decision of the Secretary referred to in Paragraph 7, takes effect as if it was the decision made by the Social Security Appeals Tribunal and requires the review application to be treated as if it was an application for a review of the new or varied decision.
21. In respect of what constitutes notice of a decision, the Federal Court stated in Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447 that the matter to be communicated by a notice involves two elements, one the fact that a decision has been made and two, the content of the decision. Whilst the Court said
“There is no general rule of the common law or principle of natural justice which requires reasons to be give for administrative decisions even though the decision may adversely affect the interests or defeat the legitimate or reasonable expectations of other persons ...
The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.”
Evidence
22. The Tribunal was provided with a number of documents including the section 37 documents and written submissions from the parties.
23. The Tribunal heard oral evidence and submissions from Mr Mastrodomenico, and oral submissions from Mrs Conlon.
24. The Tribunal considered the documents, oral evidence and submissions of Mr Mastrodomenico, and Mrs Conlon.
contentions
secretary’s contentions
25. The Secretary contended that there was no dispute that Mr Mastrodomenico advised Centrelink on 14 April 2008 that his financial circumstances had changed in that he had received a return of the $40,000.00 land deposit and deposited the money into bank accounts.
26. The Secretary contended that on 14 April 2008 and on several occasions since that date that Mr Mastrodomenico was given notice of the decision to pay his pension at a rate and that he was sent notices in relation to each of those decisions.
27. The Secretary contended that the notices were valid notices of the decisions to pay Mr Mastrodomenico at a rate.
28. The Secretary contended that section 129 of the Administration Act, whilst not having formal requirements attached to the method of applying for review, requires reference to the substance of the relevant decision, an expression of some dissatisfaction with or challenge to that decision, and a subjective desire on behalf of the applicant that the decision should be reviewed or changed.
29. The Secretary contended that Mr Mastrodomenico did not seek a review of the decision dated 14 April 2008 in accordance with section 129 of the Administration Act until 13 August 2010.
30. The Secretary contended that under section 109(2) of the Administration Act that Mr Mastrodomenico had applied for review of a rate decision more than 13 weeks after being notified of the decision, therefore the favourable determination should only take effect from the date the person applied for review.
31. The Secretary contended that section 109(1) of the Administration Act applies so that the earliest date from which Mr Mastrodomenico can receive the increased rate of pension is 24 April 2010 as he was last notified of the Secretary’s decision on 15 July 2010 and he sought review of that decision within 13 weeks of the notification on 13 August 2010.
Applicant’s Contentions
32. Mr Mastrodomenico did not dispute that he had received the pension rate changes and notices recorded in the Secretary’s Statement of Facts and Contentions at paragraph 6.
33. Mr Mastrodomenico contended that he had properly advised Centrelink of the fact that the property deal had fallen through and that his $40,000.00 deposit had been refunded and deposited into his bank accounts.
34. Whilst Mr Mastrodomenico contended that he had queried the “other assets” $40,000.00 he was not able to point to any record of those queries in the Centrelink documents contained in the section 37 documents at T9 to T11.
35. Mr Mastrodomenico understandably contended that he had provided the information to Centrelink and that they had made a mistake and that it was not his fault and that he had subsequently been underpaid for 2 years and should be entitled to the increase to payment of his age pension at an increased rate from 14 April 2008.
Findings
36. The Tribunal finds that Mr Mastrodomenico was granted age pension from 25 February 2003.
37. The Tribunal finds that on 26 September 2006 Mr Mastrodomenico informed Centrelink he had made a deposit of $40,000.00 towards the purchase of a block of land and Centrelink notified him that his record had been updated to include among his assets $40,000.00 of “other assets”.
38. The Tribunal finds that on 14 April 2008 Mr Mastrodomenico told Centrelink that the $40,000.00 deposit had been returned and deposited into his bank accounts.
39. The Tribunal finds that on 14 April 2008 Centrelink notified Mr Mastrodomenico of his age pension rate and the combined value of his assets being used to calculate the rate. In error this included $40,000.00 of “other assets”.
40. The Tribunal finds that Centrelink subsequently notified Mr Mastrodomenico of decisions regarding his age pension rate on various dates after 14 April 2008, notices which stated his age pension rate and the value of the assets used to calculate the rate including “other assets” of $40,000.00.
41. The Tribunal finds that as a consequence of the error referred to in paragraph 39; in the period from 14 April 2008 to 12 August 2010, Mr Mastrodomenico was paid age pension at a rate that was less than the correct rate provided for by the social security law.
42. The Tribunal finds that Mr Mastrodomenico was properly notified of the decisions in accordance with the Act and that the notifications were valid notices notwithstanding that they each contained an assessment based upon an error.
43. The Tribunal finds that Mr Mastrodomenico was notified on 15 July 2010 of a decision made on 24 April 2010 and that he sought review of that decision within 13 weeks on 13 August 2010.
44. The effect of sub-section 109(1) of the Administration Act is that the date of effect of a favourable determination to increase Mr Mastrodomenico’s age pension takes effect from the same date as the original determination and therefore Mr Mastrodomenico is entitled to age pension at the increased rate from 24 April 2010.
45. The effect of sub-section 109(2) of the Administration Act is that as Mr Mastrodomenico applied for review of earlier rate decisions more than 13 weeks after being notified of the decision, the favourable determination should only take effect from the date the person applied for review and he is therefore not entitled to be paid at an increased rate prior to 24 April 2010.
46. The only mechanisms for redress in such circumstances are the Compensation for Detriment caused by Defective Administration (“CDDA”) scheme administered by the Secretary and, conceivably an Act of Grace payment. Unfortunately, these mechanisms are beyond the Tribunal’s jurisdiction.
47. The decision under review, as varied by the Secretary on 4 March 2011 to pay age pension at an increased rate from 24 April 2010 and not from an earlier date, is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member
Signed: .....(sgd) Mr T Chater........................
AssociateDate of Hearing 19 April 2011
Date of Decision 12 May 2011
Representative for the Applicant Self
Representative for the Respondent Mrs M Conlon
Departmental Advocate
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