Moroney and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 577
•17 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5523
GENERAL ADMINISTRTATIVE DIVISION ) Re Harold Moroney Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date of decision 17 August 2011
Date of written reasons 19 August 2011
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd]............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Austudy – Centrelink error in applicant’s rate of payment – underpayment – applicant assumed rate was correct and did not question payment – whether applicant entitled to arrears – whether letters to applicant constituted notice of a decision – decision under review affirmed
Social Security (Administration) Act 1999, s 109
Austin v Secretary, Department of Family and Community Services [1999] FCA 938; (1999) 92 FCR 138
Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447; (2000) 104 FCR 272
Peura and Secretary, Department of Family and Community Services [2003] AATA 1123; (2003) 78 ALD 570
REASONS FOR DECISION
19 August 2011 Senior Member Jill Toohey Background
1. Harold Moroney was receiving newstart allowance in March 2004 when he commenced a full-time course in manufacturing and welding at Glen Innes TAFE. He was granted Austudy from 8 March 2004.
2. For several weeks, Mr Moroney was paid Austudy at an incorrect rate because Centrelink did not take into account that he had been unemployed for more than 12 months, and had a partner and two children. However, Centrelink corrected the error and, until 31 October 2007, he was paid at the correct rate.
3. On 1 November 2007, Mr Moroney’s partner was granted Austudy when she started studying as well. At the same time, Centrelink reduced Mr Moroney’s Austudy payment from $372.10 per fortnight to $348.10 per fortnight. It is not clear why this happened. There was no basis for the reduction. Centrelink acknowledges it was an error on its part and that Mr Moroney was entitled to the higher rate he was previously receiving.
4. Mr Moroney did not question his payment. He assumed Centrelink had correctly calculated his entitlement and thought the reduction must be because his partner also began receiving Austudy. He did not question his payment until 16 August 2010, after he stopped studying and resumed newstart allowance and his payment increased to his former rate.
5. Mr Moroney contends that he should be paid the difference between what he was paid, and what he should have been paid, from 1 November 2007 until he stopped receiving Austudy.
6. On 23 November 2010, the Social Security Appeals Tribunal (SSAT) decided that Mr Moroney was not entitled to arrears to 1 November 2007 but was entitled to arrears to 15 June 2010. The respondent contends that the SSAT’s decision was correct.
The legislation
7. The respondent contends that Mr Moroney is not entitled to the arrears because of the effect of s 109 (2) of the Social Security (Administration) Act 1999 (the SSA Act).
8. Section 109 concerns the date of effect of a favourable determination resulting from a review. The relevant parts state:
(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.
(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.
(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.
The issue
9. I have to decide whether Mr Moroney is entitled to be paid arrears to 1 November 2007.
The facts
10. There is no dispute of any substance about the facts. There is no question that Mr Moroney qualified for the correct rate of Austudy from 1 November 2007.
11. Mr Moroney did not have any contact himself with Centrelink about his partner’s claim for Austudy or her payment. The first communication with him came by way of a letter from Centrelink dated 9 January 2008 which showed, for the period 18 October 2007 to 9 January 2008, what he had been paid each fortnight.
12. Mr Moroney says the letter came as no surprise, and he did not question the reduction in his payment because, in his mind, it simply confirmed when he knew already – that his payment had been reduced since his partner started receiving Austudy – and he assumed this was correct.
13. The letter is long and detailed. It appears to be in standard form and was almost identical to another letter sent on 17 October 2007. The relevant parts state:
Your Centrelink Payment
1. Your Account Statement
This gives you information about your payments, income and other details. You need to let Centrelink know if any of these details change.
2. What you have to tell Centrelink
…
3. Your Rights
If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate. [The letter goes on to explain about internal and external reviews including the effect of s 109 of the SSA Act].
…
Please check the information on this statement carefully and tell us within 14 days if any information is incorrect, missing or needs to be updated.
14. Under the heading Amount paid, the letter refers to “Date of change” and “Old rate” and “New rate”. It states:
‘Date of change’ is the date the change took effect, and may be different from the date you told us about the change. If you do not agree with these decisions to change your rate, ask us about your rights to have the decisions looked at again.
15. Despite this, Mr Moroney says the letter did not suggest to him that a decision had been made, or led him to question his rate of payment. It did not mention his partner, and there was no “date on which he had told Centrelink about the change”. The fact that it came two months after the change had been made, he says only reinforced in his mind that it was simply confirmation of a correct rate of payment.
16. The next relevant correspondence appears to have been on 15 June 2010.
Consideration
17. What constitutes notice for the purposes of s 109 of the SSA Act (or equivalent sections) has been considered by the Federal Court and the Tribunal on a number of occasions.
18. In Austin v Secretary, Department of Family and Community Services [1999] FCA 938, the Federal Court noted that only a statement of the decision was required, not reasons. However, notice was not given if a decision could only properly be apprehended by inference from a range of information provided over time. Nor was it sufficient merely to advise an applicant of the effect of a decision that fixed the rate of payment “without any notification that that amount has been fixed by a decision that has been made” (per Drummond J at 36).
19. In Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447. Mrs Rogers’ sole parent pension had been reduced after a decision about the inclusion of a dependent quarterly benefit in her combined yearly income. She received a letter which advised only "Your pension has reduced because of a change in your circumstances" but gave no reasons.
20. The Administrative Appeals Tribunal decided that letters sent to her were “not in the form of ‘intelligible’ communication”; they did not constitute “notice” and Mrs Cooper was entitled to arrears.
21. On appeal, the Federal Court set aside the Tribunal’s decision. Justice Cooper said, at [33] – [35]:
In my view, the matter to be communicated by the "notice" referred to in [provisions similar to s 109] is the making of a decision in relation to a sole parent pension which is a reviewable decision under s 1240 of the Act. That involves two elements; the fact that a decision has been made and the content of the decision. The subsections make no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person's right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into [the provisions].
There is no general rule of the common law or principle of natural justice which requires reasons to be given for administrative decisions even though the decision may adversely affect the interests or defeat the legitimate or reasonable expectations of other persons: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 662. The right to reasons for a decision or information explaining the basis for an administrative decision, must be found, if at all, in the Act or some other statute.
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. The requirement that the communication be intelligible, which is referred to in Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, is not one which requires that reasons for the decision be given or that sufficient information be given for the purposes found by the AAT. Jenkinson J in Long, meant no more than the means employed to communicate the decision must be intelligible to the person to whom the notice is to be given so that that person is informed of the making of the decision and the content of it. In Long, that requirement was met by informing each appellant in the Chinese language that the Refugee Review Committee had decided that she was not a refugee and that she was not entitled to the visa which she sought: at 167 C-E. I do not understand Merkel J in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 to state the requirement of intelligibility in any different sense.
22. Justice Cooper said that, to be intelligible, it was sufficient that the person be “informed of the making of the decision and the content of it”.
23. In Peura and Secretary, Department of Family and Community Services [2003] AATA 1123, the Tribunal had to determine whether the applicants were given notice of a decision to attribute the income of a family trust to them following amendments to the social security legislation, and whether they were entitled to arrears. The question turned on the construction of letters advising them of the amounts of age pension they would receive during specified periods.
24. The Tribunal considered a range of authorities including, in particular, Rogers and Austin, and found that Mr and Mrs Peura had not been given notice. It set out at [37] what it considered the correct approach as follows:
From the reasoning of the Federal Court in both Austin and Rogers I think that the correct approach in considering whether the letters relied upon constitute notice of the relevant decision may be summarised as follows:
· the Tribunal should identify the decision of which notice is to be given;
· the letters should be construed objectively;
· the letters should be intelligible, that is they should inform the recipient of the
making of the decision and the content of it;
· where the rate of pension is changed as a result of changed circumstances or the
manner in which those circumstances are assessed, merely advising the recipient of the rate of his or her pension only constitutes advice of the effect of the decision; and
· the letters need not advise the reasons for the decision.
The letters should then be construed in accordance with the above principles in order to determine whether they constitute notice of the decision as identified by the Tribunal.
25. The letters in Peura appear similar to Mr Moroney’s letter in that they were in mostly standard form. They included the words “If you do not agree with this decision …”. However, the Tribunal considered it significant that nothing on the face of the letters indicated they were any different from previous letters and, moreover, Mrs Peura’s circumstances had not in fact changed and she accordingly assumed she was continuing to receive her full entitlement. The Tribunal concluded that the letter did no more than advise Mrs Peura of the effect of a decision. It was not “intelligible in the sense referred to by Cooper J in Rogers, in that the recipients of the letters were not informed of the making of the decision and the content of it.”
26. The letter to Mr Moroney did not advise that his Austudy had been reduced on account of his partner’s receipt of Austudy. It did not even refer to his partner or to any change in his circumstances. However, critically, it stated: “If you do not agree with these decisions to change your rate …”. In my view, those words, in the context of the letter as a whole, were sufficient for the letter to constitute a notice for the purposes of s 109.
27. As Mr Moroney did not seek review of the change in the rate of payment until more than 13 weeks after the notice was given, his application cannot succeed.
28. It is arguable that the decision of the SSAT that the letter of 15 June 2010 was notice for the purposes of s 109 is not correct. However, the respondent takes no issue with that decision.
Conclusion
29. It is not hard to understand why Mr Moroney did not seek review of his payment. He quite reasonably assumed that Centrelink had calculated his payment correctly. Centrelink has acknowledged the error on its part. Mr Moroney has indicated that he is making a claim under the Compensation for Detriment for Defective Administration scheme. That would seem an appropriate course for him to pursue.
30. I affirm the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey
Signed: ................[sgd]..............................................................
Diana Weston, AssociateDate of Hearing 15 and 17 August 2011
Date of Decision 19 August 2011
Applicant Self-representedSolicitor for the Respondent Mr M Najem, Centrelink Program Litigation and Review Branch
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