Meader and Secretary, Department of Social Services (Social services second review)
[2024] AATA 3615
•10 October 2024
Meader and Secretary, Department of Social Services (Social services second review) [2024] AATA 3615 (10 October 2024)
Division:General Division
File Number(s): 2023/4414
Re:Elsie Meader
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member R West
Date:10 October 2024
Place:Melbourne
The decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 12 May 2023 is set aside and the decision of the Respondent dated 16 June 2020 to cancel the Applicant's Age Pension from 31 March 2020 is affirmed.
.....................[SGD]......................................
Member R West
CATCHWORDS
SOCIAL SECURITY – age pension – notice given under s.63 of the Administration Act – appointment of correspondence nominee – no response to notice – age pension cancelled – failure to notify of change of address – decision to cancel age pension affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Shiel v Department of Social Security [1999] FCA 1237
REASONS FOR DECISION
Member R West
October 2024
This matter concerns an application for review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT 1) dated 12 May 2023, to set aside a decision made by an Authorised Review Officer (ARO) within Services Australia (the Agency) dated 20 November 2022 to cancel the Applicant's Age Pension from 31 March 2020 and to remit the matter to the Agency for reconsideration.
The Application for review was made by the Applicant's nominee (Ms Elliot).
BACKGROUND
The relevant history of the matter is as follows:
(a)On 14 November 1996, the Applicant was granted the Age Pension[1].
[1] T18 at p.97
(b)On 21 March 2017, the Applicant became a permanent resident of Hammond Care a residential aged care facility located in Woy Woy, NSW[2].
[2] T11 at p.57
(c)On 13 February 2020, the Agency issued a notice to the Applicant under section 63 of the Social Security (Administration) Act 1999 (the Administration Act) requesting that the Applicant provide certain financial information within 14 days, otherwise her Age Pension could be stopped (Section 63 Notice). This notice was sent to the Applicant's address at Hammond Care in Woy Woy[3] but was returned to the Agency on 2 March 2020[4].
[3] T4 at pp.32-35
[4] T17 at p.79
(d)On 12 March 2020 the Applicant’s daughter Ms Elliot was appointed as the Applicant's correspondence nominee pursuant to section 123C of the Administration Act[5].
(e)A copy of the Section 63 Notice was sent to Ms Elliot on 12 March 2020 to her address in Avoca Beach[6] but no response was received by the Agency.
(f)On 9 April 2020, the Agency notified Ms Elliot that the Applicant's Age Pension had been suspended from 31 March 2020 on the basis that the Applicant had failed to respond to the Section 63 Notices issued by the Agency on 13 February 2020 and 12 March 2020[7].
(g)On 16 June 2020, the Agency cancelled the Applicant's Age Pension from 31 March 2020[8] on the basis that the Applicant had failed to respond to the Section 63 Notices (Cancellation Decision).
(h)On 20 July 2022, Ms Elliot lodged a new claim for Age Pension on behalf of the Applicant[9] and the Applicant was granted the Age Pension on 12 September 2022, with effect from 20 July 2022[10].
(i)On 21 October 2022, Miss Elliot requested an internal review of the Cancellation Decision[11], on the basis that she had informed the Agency of her new address in Kincumber and had not receive any correspondence from the Agency in relation to the cancellation of the Applicant's Age Pension.
(j)On 20 November 2022, an ARO affirmed the Cancellation Decision[12](ARO Decision).
(k)On 22 February 2023, Ms Elliot lodged an application for review of the ARO Decision[13] with the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT 1).
(l)On 12 May 2023, the AAT 1 set aside the Cancellation Decision as affirmed by the ARO and remitted the matter back to the Agency for reconsideration in accordance with the direction that the Agency conduct an investigation to determine whether, prior to March 2020, Ms Elliot advised the Agency of a change of address from an address in Avoca to an address in Kincumber[14](AAT 1 Decision).
(m)On 21 June 2023, Ms Elliot lodged an application for review of the AAT 1 Decision with the Administrative Appeals Tribunal (General Division)[15] (Second Tier Review).
[5] T17 at p.77
[6] T5 at pp.36-39
[7] T6 at pp.40-41
[8] T7 at pp.42-43
[9] T17 at pp.80-82
[10] T19 at pp.101-103
[11] T17 at p.88
[12] T14 at pp.63-65
[13] T15 at pp.66-71
[14] T2 at pp.4-6
[15] T1 at pp.1-3
HEARING
A hearing in relation to the Second Tier Review was held by video link on 2 October 2024. The Applicant was represented by Ms Elliot and the Respondent was represented by Mr Garcia, a solicitor.
In conducting the Second Tier Review, the Tribunal had regard to:
(a)the documents produced by the Respondent pursuant to ss 37 and 38AA of the Administrative Appeals Tribunal Act (AAT Act) (‘T Documents’); and
(b)the oral evidence of Ms Elliot.
ISSUES
Section 63(1) and (2) of the Administration Act provide relevantly that where the Secretary is of the opinion that a person who is in receipt of social security payments[16] should give information the Secretary may notify the person that he or she is required, within a specified time, to do so. Under s.63(5) the Secretary may notify the person by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary or in any other way the Secretary considers appropriate.
[16] S.23 of the Social Security Act defines a social security payment to include the age pension
Under s.64(1) of the Administration Act the social security payment being received by the person is not payable if:
…
(b) the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
Subsection 64(4) further provides relevantly that, If:
(a) a social security payment is not payable to a person because of subsection (1); and
(b) the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2), (2AB) or (4);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (1) ceases to apply to the person in relation to that requirement.
In Shiel v Department of Social Security, the Federal Court considered the equivalent provisions of sections 63 and 64 (as they were then) and stated the following regarding the requirement to obtain information that the Parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits[17].
[17] [1999] FCA 1237
The Respondent asserts that:
(a)The Secretary was able to require the Applicant to give information regarding her financial circumstances under s.63(2)(d) of the Administration Act and it was reasonable to do so;
(b)The Agency validly issued the Section 63 Notices dated 13 February 2020 and 12 March 2020 under subsection 63(2)(d) of the Administration Act. The notice dated 13 February 2020 was in writing and sent by post to the Applicant's Avoca Beach address, her last known postal address. The notice dated 12 March 2020 was in writing[18] and sent by post to Miss Elliot's last known postal address[19]. Both notices indicated the consequences of not providing the requested information, specifically that the Applicant's Age Pension could be stopped.
(c)The Applicant failed to provide the entirety of the requested information within the time specified in the notices. As a result of the Applicant's failure to comply with the Agency's notices, s.64(1) of the Administration Act applied such that the Applicant's Age Pension was not payable.
(d)The Agency sent Ms Elliot notice of the decision to suspend the Applicant's Age Pension on 9 April 2020 by post to the Avoca address[20]. This notice indicated that if the Applicant did not contact the Agency within 13 weeks of the suspension of her Age Pension, then her Age Pension would be cancelled.
(e)As no contact was made with the Agency by the Applicant or Ms Elliot within the specified 13 weeks the Applicant's Age Pension remained unpayable and so the decision to cancel the Applicant's Age Pension from 31 March 2020 was correct and reasonable.
[18] See T20 and T21
[19] S.123I of the Administration Act provides that any notice that the Secretary is authorised or required by the social security law to give to a benefit recipient may be given by the Secretary to the benefit recipient's correspondence nominee.
[20] T6 at pp 40 – 41
Ms Elliot gave evidence to the Tribunal confirming that she was the Applicant’s daughter and her correspondence nominee and that she held power of attorney in relation to the Applicant.
She stated that the Applicant has, since November/December 2016, been resident in the Hammond Care facility in Woy Woy where Ms Elliot also works. She said that the Applicant has dementia. She also said that Hammond Care was made aware of her change of address from Avoca Beach to Kincumber and that she relied on Hammond Care to forward the Applicant’s correspondence to her. She said that this was usually done by placing the Applicant’s correspondence in her pigeon-hole at work, but on occasions correspondence had been sent to her Kincumber address.
Ms Elliot gave confusing evidence regarding whether she had notified the Respondent of her change of address from Avoca Beach to Kincumber. She confirmed that the Respondent had originally known of her Avoca Beach address, but she said she had not received any correspondence from Centrelink at that address. She initially said she was unsure whether she or her step-sister had notified Centrelink of her change of address. She was not sure of the date upon which notification was given other than to say it was around the time of her father’s death in 2017. When pressed about her recollection she then said she was sure she had told Centrelink over the phone but she was not sure when, but later she conceded that she may not have updated her address prior to 2021. She acknowledged having applied for two disaster payments from Centrelink in which she stated that she started living at her address in Kincumber from 31 March 2021, but stated that she had lived at that address earlier as a rental and later purchased the property in 2019.
Ms Elliot stated that she first became aware of the cancellation of the Applicant’s pension in July 2022 when the Applicant required dental work and she checked her pension card to note that her pension had not been paid for some time. She said she checked with Centrelink who advised her that the Applicant had been off the pension for around two years. She said that she then applied for reinstatement of the pension and several months later sought internal review of the Cancellation Decision. She said she had not regularly checked the Applicant’s bank account during the two year period prior to finding out about the cancellation because it was during the COVID pandemic and she trusted the system.
CONCLUSION
The Tribunal is not satisfied on the evidence of Ms Elliot that the Respondent was made aware of Ms Elliot’s change of address from Avoca Beach to Kincumber before 31 March 2021. Accordingly, the Tribunal is satisfied that the notices served on Ms Elliot as the Applicant’s correspondence nominee at her last known address at Avoca Beach on 13 February 2020 and 12 March 2020 were valid notices under s.63(5)(a) of the Administration Act.
However, a proper consideration of the grounds for a payment of a benefit becoming not payable under s.64 of the Administration Act involves more than the question of proper notification under s.63. Sub-section 64(1) involves a number of discretionary considerations by the Secretary, including that; the requirements of the notice were reasonable (para (c)), whether the person had a reasonable excuse for not complying (para (e)) and whether it was reasonable for the sub-section to apply to the person (para (f)). These matters appear to the Tribunal to be relevant in the Applicant’s case. She was at relevant times resident in an aged care facility lacking the cognitive ability to respond to the Respondent’s notice herself and due to no fault of hers she became disentitled to her rightful pension because of a failing by her daughter to notify a change of address.
However, the Respondent’s submission raises a question regarding the utility of the Tribunal giving further consideration to these discretionary issues.
Sub-section 109(2) of the Administration Act relevantly provides that where an applicant applies for review under s.129 more than 13 weeks after notice of a decision is given and a favourable determination is made as a result of the application, the favourable determination takes effect on the day on which the application for review was made. A favourable determination is defined by s.108 of the Administration Act as a determination under ss.78, 85, 85AA or 85A. A determination under s.85 relates to the resumption of a person's social security payment after cancellation or suspension.
In the Applicant’s case, her application to the Respondent for review of the decision to cancel the Applicant’s age pension was made on 21 October 2022, more than 13 weeks after the Applicant was notified of the decision on 23 June 2022. Accordingly, any decision setting aside the cancellation of the Applicant’s age pension could not have effect before 21 October 2022. The Applicant made a new claim for the age pension which resulted in the Applicant commencing to receive the age pension from 12 September 2022. Ms Elliot confirmed that the Applicant’s pension was reinstated at the same rate as had applied at the time of cancellation. Accordingly, any decision of the Tribunal to set aside the original decision to cancel the Applicant’s age pension would have no utility. In view of this and having regard to the Tribunal’s objectives under s.2A of the AAT Act, the Tribunal does not intend to consider the matter further and reluctantly concludes that the preferrable decision is to set aside the AAT 1 Decision and affirm the Cancellation Decision.
DECISION
The decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 12 May 2023 is set aside and the decision of the Respondent dated 16 June 2020 to cancel the Applicant's Age Pension from 31 March 2020 is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of
.................[SGD]...........................
Associate
Dated: 10 October 2024
Date(s) of hearing: 2 October 2024 Date final submissions received: 16 July 2024 Advocate for the Applicant: Ms S Elliott Solicitors for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers
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