McMahon and Department of Family and Community Services

[2001] AATA 639

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/280

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      KEVIN McMAHON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Miss W J F Purcell (Senior Member)      

Date8 June 2001

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.      

(Signed)
  W J F PURCELL

Senior Member

CATCHWORDS
SOCIAL SECURITY – Age Pension – applicant paid rate less than that provided for by the Act – power to increase rate - date of effect of more favourable decision - applicant did not request review within three months of notification of decision.

Social Security Act 1991 ss.76 and 80

ORAL REASONS FOR DECISION

8 June 2001            Miss W J F Purcell (Senior Member)                   

1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 19 July 2000, which affirmed the decision of an Authorised Review Officer of 11 April 2000, to reject the applicant's claim for arrears of Age Pension from 9 November 1998, rather than from 4 August 1999.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with the exhibits tendered by the applicant. The applicant who gave oral evidence was represented by Mr Roberts and Mr Underwood, departmental advocate, represented the respondent (the Department).

3. At the conclusion of the hearing of this matter, the Tribunal delivered orally the following Reasons for Decision which are now reduced to writing pursuant to s.43 of the Administrative Appeals Tribunal Act 1975.

4. I affirm the decision under review on the basis that, having had the opportunity to hear all the evidence and examine the documents, I am satisfied that, although the applicant provided information to the Department on 10 November 1998, the decision to continue to hold the Norwich investment was not made until 3 December 1998.  This decision was made in error by the Department.  The applicant did not complain, as was his right, at that time.  In accordance with the legislation a request for review of a decision must be made within three months of notification of the decision, or otherwise a payment as a result of a more favourable decision can be made only from the date of request for review.

5. Section 76 of the Social Security Act 1991 provides:

   "Rate Increase determination

   76.If the Secretary is satisfied that the rate at which an age pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.

   Note:for the date of effect of a determination under this section see section 80."

6. The date upon which the more favourable decision takes effect is determined by s80 of the Act. This section provides, as far as is relevant for the purposes of this review:

   "Date of effect of favourable determination

   80.(1)The day on which a determination under section 76 or 79 (in this section called the "favourable determination") takes effect is worked out in accordance with this section.

   …

   Notified decision – review sought after 3 months

   80(3)If:

   (a)a decision (in this subsection called the "previous decision") is made in relation to a person's age pension; and

   (b)a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and

   (c)the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and

   (d)the favourable determination is made as a result of the application for review;

   the determination takes effect on the day on which the person sought the review."

7. I am satisfied on the evidence that when the applicant attended the Centrelink office on 3 November 1999, he provided updated information;  and a decision was made by a delegate on 4 November 1999.  The applicant queried the decision on 18 January 2000 on the basis that the Norwich investment had been kept on his record although it had been disposed of in October 1998.  The rate of pension was corrected, with a date of effect of 4 November 1999, as his query was treated as a request for review of the decision of 4 November 1999.  The applicant sought further back dating of the decision, and the SSAT affirmed the decision regarding the date of effect.

8. The Departmental forms are confusing.  Although I have sympathy for the applicant's quandary it was incumbent on him to read the back of the form advising him of the time within which an application should be made.

9. When the defective decision was made on 3 December 1998, the applicant did not make application within the 3 months provided in the legislation.  He made an application for review on 4 November 1999 in relation to the Department's decision of 3 November 1999.  I accept the submissions of the Department and I consider that the SSAT decision was correct. 

10. For these reasons the Tribunal affirms the decision under review.

    I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Miss W J F Purcell (Senior Member)

    Signed:   (Sgd) F M Boekamp
      Personal Assistant

    Date/s of Hearing  8 June 2001
    Date of Decision  8 June 2001
    Counsel for the Applicant        Mr Roberts
    Solicitor for the Applicant         Welfare Rights Centre
    Counsel for the Respondent    Mr Underwood
    Solicitor for the Respondent    Department of Family & Community Services