Mickan and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1768

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1768

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600887

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN MICKAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr KS Levy, RFD, Senior Member

Date17 September 2007

PlaceBrisbane  

Decision

The Tribunal determines that:

a.    the decision under review is set aside; and

b.    the applicant is entitled to arrears of payment from 9 February 2006 to 3 September 2006.

.................[sgd]..............................
    Dr KS Levy

  Senior Member

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension – applicant did not respond to Centrelink’s request for updated information – applicant did not receive the notices – change of address – Centrelink was advised of new address – applicant was not given an effective notice of the decision to cancel his disability support pension – decision under review set aside

Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security (Administration) Act 1999 (Cth) ss 64, 80, 109, 129, 237

Acts Interpretation Act 1901 (Cth) s 29

Repatriation Commission v Gordon and Others (1990) 100 ALR 255  

REASONS FOR DECISION

17 September 2007	Dr KS Levy, RFD, Senior Member
Introduction

1.      John Mickan had been in receipt of disability support pension since 27 April 2000. Following a request for updated information on 1 December 2005 and 12 January 2006, and following a failure to respond by the applicant, Centrelink determined to suspend payment of his disability support pension from 9 February 2006.  Centrelink subsequently cancelled that pension on 11 May 2006.

2.      On 4 September 2006, the applicant attended a Centrelink office at Lightning Ridge, New South Wales, with a query in relation to his concession card entitlement and was then informed by Centrelink staff that his disability support pension had been cancelled in May of that year. He reapplied and was re-granted that pension from that date. On 12 September 2006 he sought a review of the decision to cancel his pension and not to pay arrears (T12). That original decision was affirmed on 21 September 2006, was re-affirmed by an Authorised Review Officer on 12 October 2006 and was again re-affirmed by the Social Security Appeals Tribunal on 17 November 2006.

Issues

3.      The issues for determination in this case are:

1)        Was the applicant given an effective notice of the decision to cancel           his Disability Support Pension from 9 February 2006?

2)       Did the applicant seek review of that decision within 13 weeks of  receiving notice of the decision?

3)       Is Disability Support Pension payable to Mr Mickan by way of              arrears payments for any period between 9 February 2006 and 4  September 2006?

Evidence

4.      The Tribunal had relevant material for this case in the form of Section 37 documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). Mr Mickan provided evidence by telephone and was supported by Ms Kirkpatrick, an officer of the hospital where Mr Mickan resides. Mr Tim Ffrench, advocate, appeared on behalf of the respondent.

5.      Mr Mickan is now 59 years old and has been a resident of the hospital at Lightning Ridge in New South Wales for three and a half years. He has Parkinson’s disease and is in the age / disability section of the hospital, which is an area of respite for some patients. Mr Mickan informed the Tribunal that he did not get the original letter forwarded by Centrelink dated 1 December 2005, nor did he get the letter dated 12 January 2006. It appears that Centrelink records showed Mr Mickan’s postal address as being PO Box 729, Lightning Ridge, NSW 2834. This is the address that had been recorded with Centrelink since 1993. It was noted that Mr Mickan gave evidence to the Social Security Appeals Tribunal that he cancelled that post office box some 12 months earlier, which would have put the date of cancellation prior to the original date of the request for information by Centrelink. Ms Kirkpatrick confirmed to the Tribunal that the hospital had changed the address on behalf of Mr Mickan and that it was changed to PO Box 84, Lightning Ridge, which is the post office box of the hospital. In cross-examination and subsequent questioning, it was apparent that Mr Mickan had been on medication and had not sought information about his pension entitlements as he still had some money in the bank and his expenses had been debited to his existing funds. He pointed out that his family lives in South Australia and he had no support locally other than the hospital staff.

Submissions

6. Mr Ffrench submitted that the notices issued on 1 December 2005 and 12 January 2006 were issued under the authority of s 64(2)(b)(iv) of the Social Security (Administration) Act 1999 (the Act), whereby the Secretary sought completion of a questionnaire by Mr Mickan. He also submitted that when no response was received after sending notices to his last known postal address in accordance with s 64(3) of the Act, the payment of the pension was “not payable” under s 64(4) of the Act. That decision having been made in respect of Mr Mickan, the Secretary then determined that the payment should be suspended and it was subsequently cancelled under s 80 of the Act.  

7.      Mr Ffrench also referred to the evidence of Mr Gleadhill, whose evidence was that letters would ordinarily be received 2-3 days after dispatch from Centrelink. He also referred to the letter advising of cancellation, which included “important information”. He submitted that if it is accepted that notice has been given and there was no response within 13 weeks, then, s 109(2) of the Act results in the effective date of any favourable determination being the date that the request for review is made, that is, 4 September 2006.

Consideration

8.      I have taken account of all the factual material, both oral and documentary evidence, as well as the relevant legislative provisions and case law.

9. I accept as a matter of fact that the respondent has diligently dispatched notices to Mr Mickan as required by s 64 of the Act. It is apparent that if the processes set out in s 237(1) of the Act are followed, then notice will be deemed to be given to the applicant when such notice would have been received in the ordinary course of the post, unless the contrary is proved (s 237(3)). That provision is also reiterated in s 29 of the Acts Interpretation Act 1901 (Cth). The respondent submitted that mere claim of non receipt would not be sufficient to show that the contrary had been proved, as “non-receipt is not the same as non-delivery” (see Spender J in re Repatriation Commission v Gordon and Others (1990) 100 ALR 255 at 265). However his Honour in that case said that the phrase, ‘unless the contrary is proved’ “…encompasses proof that the letter was never delivered at all”. His Honour also held in that case under s 29 of the Acts Interpretation Act 1901 (Cth) that “….non-delivery at that time, or non-delivery at all, might be proved by evidence”.

10.     There is nothing to suggest that Centrelink’s procedures and processes concerning postage were inadequate and that a letter might not have been delivered in the ordinary course of post. Equally, there is no suggestion of any intervening act which may have prevented delivery. However, the evidence of the applicant given to the Social Security Appeals Tribunal, and clarified by Ms Kirkpatrick at this Tribunal, indicates that the address was changed to a private post office box in Lightning Ridge, New South Wales. That is, there was evidence that Mr Mickan’s postal address had been changed to the hospital’s post office box and that that had occurred about a year earlier, although Centrelink’s records indicate that such a change had not been recorded. There is no evidence and certainly no evidence of any motivation by either Mr Mickan or Ms Kirkpatrick to provide evidence which was not credible. Indeed, I accept both those witnesses as being witnesses of truth and that in some administrative way, the notice forwarded to Centrelink has not been recorded on the official records. There seems to be no basis for concluding adversely against Mr Mickan, who suffers from Parkinson’s disease and who has been a resident of the hospital for some time. In the circumstances, I accept that there is some evidence in this case which shows facts contrary to delivery in the ordinary course of post. It may have been delivered to the address recorded in Centrelink’s records, but there is evidence Centrelink did not have the current address. No evidence was provided that any correspondence to Mr Mickan was returned as undeliverable, but that is not sufficient to outweigh other evidence about Mr Mickan’s correct postal address.

11.     As a consequence of that evidence, I make the following findings of fact:

a.    Mr Mickan changed his address over 12 months  previously;

b.    Centrelink was advised of that change;

c.    There was nothing to put Mr Mickan on notice about the possibility of correspondence from Centrelink.

12.     Having made that finding of fact, I determine that s 109(2) of the Act can have no application. Therefore, s 109(3) of the Act is applicable and refers to the situation where a person is not given notice of the original decision. In that case, where an application is made to the Secretary for review of the original decision under section 129 of the Act, any favourable determination is to take effect on the day on which the original decision was made. In the circumstances therefore, I find that a review of the circumstances leading to the cancellation of Mr Mickan’s disability support pension occurred in circumstances where the evidence available to the Secretary was not based on all of the facts which have now become apparent in the course of this hearing and for which culpability cannot be ascribed to Mr Mickan. Therefore, I determine that he is entitled to a favourable determination under s 109(3) of the Act.

13.     In answering the issues which the Tribunal must determine, I answer these as follows:

Issue 1)         The applicant was not given effective notice of the decision to   suspend or cancel his disability support pension.

Issue 2)         The applicant did not seek review within 13 weeks of receiving   notice of a decision, but this refers to s 109(2) of the Act which is   not relevant given the finding of fact made.

Issue 3)         I determine that disability support pension is payable to the   applicant from the date of suspension, that is 9 February 2006,    to 3 September 2006, the date preceding the date of re-granting   of the applicant’s pension.

14.     In the circumstances therefore I determine that:

a.    the decision under review is set aside; and

b.    the applicant is entitled to arrears of payment from 9 February 2006 to 3 September 2006.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member

Signed:         ..............[sgd]..................................................................
           F. Kamst, Legal Research Officer

Date/s of Hearing  24 July 2007
Date of Decision  17 September 2007
Applicant   Mr Mickan himself
For the Respondent                   Mr T Ffrench, departmental advocate