Morrison and Secretary, Department of Family and Community Services - [2002] AATA 766

DECISION AND REASONS FOR DECISION [2002] AATA 766

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/52

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IAN WILLIAM MORRISON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date23 August 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  ..........Sgd. Mr J. Handley..................
  Senior Member
AGE PENSION - claim lodged for age pension in 1995 - whether withdrawn - another claim made in 2000 - age pension then paid - whether any entitlement prior to 2000 - decision affirmed.
Social Security Act 1991 s 51AA
Social Security (Administration) Act s 16, 33

REASONS FOR DECISION

23 August 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 5 December 2001. The SSAT then decided to affirm a decision made by an authorised review officer ("ARO") of Centrelink of 20 October 2000. The decision under review concerned the refusal to pay age pension prior to 1 August 2000.
The application was heard in Melbourne on 19 August 2002. Ms Downes, the applicant's accountant, represented Mr Morrison who is a resident of Queensland. He did not attend the hearing, nor did he give evidence. Ms D'Cunha appeared on behalf of the respondent.
The circumstances of the application may be briefly summarised as follows.
Immediately prior to November 1995, Mr Morrison was a "member of a couple". He made an application for age pension and was asked to complete some forms concerning his living arrangements and provide details of any joint assets and income. Apparently he and his wife were "separated under the one roof" and Mrs Morrison refused to give Mr Morrison details of her assets and income. There were then a number of discussions between he and Centrelink officers at the Innisfail office in Queensland concerning his inability to obtain information from his wife. On 12 January 1996, Ms Davis, an officer at the Innisfail office, had a telephone conversation with Mr Morrison. As a result of that conversation, she understood that his claim for age pension was withdrawn. The application was not then processed and pension was not paid.
In August 2000, the applicant's son made an inquiry at the Bondi office of Centrelink concerning the age pension entitlement of his father. Mrs Morrison continued to refuse to provide information, however, an officer at the Bondi office eventually processed the age pension claim and pension became payable from 1 August 2000.
Mr Morrison seeks the age pension from 1 November 1995, when he applied for age pension, until 1 August 2000, when it eventually was paid.
Mr Morrison was not called to give evidence. Ms Downes indicated at the commencement of the hearing that she and her client were concerned that negligent or incomplete advice was given in 1995, which has caused Mr Morrison to act to his detriment. She indicated that an application has been made to the Ministry of Finance for compensation and, subject to the outcome of these proceedings, a complaint will also be lodged with the Commonwealth Ombudsman's office. She acknowledged that this Tribunal did not have any jurisdiction to consider the nature of the verbal advice given or any duty of care and the application proceeded only as to the entitlement to age pension prior to 1 August 2000.
Ms Downes submitted that her client, who was a resident of the Innisfail district from 1995, made a number of personal attendances at the Innisfail office enquiring whether there had been any changes to the legislation. He did so (apparently) upon the basis that he understood that he had no entitlement to age pension until such time as he provided details of the income and assets of his wife. Apparently, being told repeatedly that the legislation had not been changed, he did not lodge any new age pension applications.
LEIGH MEREDITH DAVIS
Ms Davis is an ASO 4 officer at the Innisfail office of Centrelink and has been employed in that office since 1991. She said that her position is primarily responsible for the assessment and review of pensioner income entitlement.
Ms Davis was the author of a file memorandum found at T4 p11 which reads as follows:
Date of receipt: 15 JAN 1996 Author: FOK
Sum: age ncl lod 011195..stated married..withdrew claim per phone 120196
Txt: a/n is married but wife will not support hime [sic] ..nor make any of her income of asset details available to dss..i gave him an assessment of living arrangements form on 281195 but it was not returned..when I rang him on 120196 he asked that his claim for age pension be withdrawn
Ms Davis said that she was the author of the document because her code reference "FOK" appears at the top of the document. She said that she had the telephone conversation on 12 January 1996. She typed the memorandum on 15 January 1996 and stored it electronically in the DSS/Centrelink computer.
Ms Davis recalled Mr Morrison because he had claimed an age pension, yet he needed to be assessed under the applicable legislation with regard to his assets and the assets of his wife. She recalled that he was unable to provide details of his wife's income and assets and when she learnt of his "separation" she provided him with the "assessment of living arrangements form".
In cross-examination, Ms Davis said that she would have made handwritten notes of the telephone conversation and then typed the memorandum. She said the handwritten notes would no longer be available and the only record of the conversation would be the note that she typed on 15 January 1996. She said it was likely that there had been a lengthy conversation between her and Mr Morrison, which was reduced to five or six lines of type.
Ms Davis said that she could not recall whether Mr Morrison used the word "withdrawn", but said that she had no doubt that he had no intention of proceeding with the application. She said that she is under a duty to satisfy herself that if a client indicates that they do not wish to proceed with an application that they understand the consequences. She said that it was her practice to take considerable time and care to explain the consequences of not proceeding with an application. Although the memorandum would indicate the conversation was brief, it was more than likely that she had a lengthy and extensive conversation with Mr Morrison.
When Ms Davis was told that Mr Morrison had indicated to the SSAT that he had told her "Oh forget it" with respect to the application, she said she would not be surprised if that language had been used. She said that would indicate to her that the applicant did not intend to proceed with the claim. (Refer para 6, decision of SSAT).
THE LEGISLATION
Relevantly s 51AA of the Social Security Act 1991 ("the Act") provides that a claimant for an age pension may withdraw a claim if it had not been determined. When a claim is withdrawn it is "taken not to have been made" (Refer also, s.33 of the Social Security (Administration) Act 1999 (the 'Administration Act').
Section 16 of the Administration Act provides that a claim for social security payment must be lodged in writing.
CONCLUSION AND REASONS FOR DECISION
I am satisfied and find as a fact that the applicant did lodge a claim for age pension with the Innisfail office of Centrelink on 1 November 1995. When it was learnt that he was a "member of a couple", he and Mrs Morrison were asked to complete details of their income and assets. Mr Morrison apparently was unable to obtain information from his wife and he notified the Centrelink office that she would resist providing the information. A form was then given to him to complete concerning the living arrangements within the home. That form was not ever returned. Ms Davis eventually had a follow up telephone conversation with Mr Morrison, as his claim was then outstanding. Ms Davis said in evidence that she understood from his language that he did not wish to proceed with the application. She then decided that he intended to withdraw it and she made a notation to this effect on the Centrelink file.
In August 2000, Mr Morrison made another application for age pension and it was eventually granted.
I am satisfied that Ms Davis was correct in her interpretation of the conversation she had with Mr Morrison on 12 January 1996, namely, that he did intend not to proceed with the application. I cannot be satisfied that Mr Morrison used the word "withdraw" – because he did not give evidence – but nonetheless, I am satisfied that the words he said he did use (refer decision of SSAT) would indicate that he had no intention of proceeding of the application. I am satisfied that Ms Davis used the word "withdrawn" because that is the word which appears within s 51AA of the Act. (The Administration Act did not exist in 1995). Additionally, I am satisfied, having heard her evidence, that she is under a duty, which was exercised, to satisfy herself that if a claimant does not intend to proceed that it amounts to a "withdrawal" and the consequences are understood.
In the present case – and having regard to the legislation – the application having been withdrawn, it is deemed to be an application that had not been made. It follows that if the application had not been "made", that pension could not be paid. The absence of any further claim being made for the next 5 years, is also consistent, in my view, of the applicant having the belief that he had no entitlement under the 1995 claim.
It follows, therefore, that the decision made by the Centrelink officer subsequently affirmed by the SSAT must also be affirmed.
There was some discussion concerning the quality and nature of the advice that was and or should have been given by Centrelink officers concerning the inability of Mr Morrison to obtain information from his wife and the return of those forms. As I indicated at the outset, they concern matters over which this Tribunal does not have any jurisdiction. They may or may not be matters which will attract the attention of the Ministry of Finance or the Commonwealth Ombudsman.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro.......................................
  Associate
Date/s of Hearing  19 August 2002
Date of Decision  23 August 2002
Counsel for the Applicant        Ms Downes, Accountant
Solicitor for the Applicant         Nil
Counsel for the Respondent    Ms P D'Cunha, a departmental advocate
Solicitor for the Respondent    Centrelink