Muir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 720

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 720

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1426

GENERAL ADMINISTRATIVE DIVISION		)
Re		LUISA MUIR

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date22 September 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[sgd].......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – cancellation of pension – whether correct decision to cancel pension – pension restored – date of commencement – decision under review affirmed

Social Security (Administration) Act 1999 (Cth), ss 41(1), 42, 81(1), 109(2), 196, 237

REASONS FOR DECISION

22 September 2009 Mr S Karas, AO, Senior Member

1.      Luisa Muir, the applicant, applied for review of a decision made by Centrelink on 27 August 2008 to cancel her age pension.  This decision was made on the grounds that she failed to provide documents to Centrelink to determine her ongoing entitlement to pension.

2.      In May 2008, Centrelink requested that the applicant lodge documents within 14 days to substantiate her claim for pension.  Such documents were not provided to Centrelink within that timeframe.  Subsequently, a decision was made to cancel her pension from 11 June 2008 and pension was not restored until 29 December 2008.  An authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal on 24 March 2009. 

3.      The applicant applied for review to the Administrative Appeals Tribunal (“the Tribunal”) on 7 April 2009.  

ISSUES

4.The issues the Tribunal must determine are:

§  whether Centrelink made the correct decision to cancel the applicant’s pension; and

§  whether the applicant is entitled to pension from a date earlier than 29 December 2008?

LEGISLATION

5.      The legislation relevant to the appeal is contained in the Social Security (Administration) Act 1999 (“the Administration Act”). The Administration Act provides that a social security payment may be cancelled where a person fails to comply with a requirement of a notice: s81(1) Administration Act. Section 196 of the Administration Act provides for written notice of a requirement to be given to a person. That notice must comply with the requirements contained in that section.

6. Whether the applicant can be paid pension from a date earlier than 29 December 2008 is governed by s109(2) of the Administration Act. That section provides that where a decision is made in relation to a social security payment, and notice of that decision is given, and a person applies for review more than 13 weeks after the notice is given and a favourable decision is made, then the date of effect of the decision is the day upon which the application for review is made.

7. Sections 41(1) and 42 of the Administration Act are also relevant to determine the reinstatement date of the applicant’s pension. In particular, s 41(1) provides that a social security payment (including age pension) becomes payable to a person on their start day. Section 42 provides that a person’s start day is determined in accordance with Schedule 2 of the Administration Act. These provisions have been used by Centrelink to determine that the applicant’s pension should be restored from 29 December 2008 and not earlier.

EVIDENCE  

8.      At the hearing, evidence was given by the applicant (who was self-represented) and her friend, Mr Angelich.  An interpreter was present to assist the parties. 

9.      In her evidence, the applicant stated that her pension was cancelled without her knowledge, and that she had always responded to Centrelink’s requests. 

10.     The applicant stated that she had “money to spend”, and did not check her bank statements.  In 2008, she won $30,000 in lotto as part of a syndicate.  Further, the applicant does not pay rent.  She lives with a student who pays rent of $125 per week.  Rent monies are paid to Mr Angelich, who is the owner of the house.  (The applicant clarified that the house was sold by her late husband to Mr Angelich). 

11.     The applicant stated that she receives mail at her post office box when she is away from home.  Mail is only opened upon her return.  She felt that her mailbox at her residential address was “not safe”.  The applicant’s mail was held when she travelled overseas in July 2008. 

12.     The applicant was diagnosed with breast cancer in December 2008.  She continues to suffer fatigue and blood pressure. 

13.     Mr Angelich also gave evidence at the hearing.  He has known the applicant for approximately 20 years.  He confirmed that he purchased the house from the applicant’s late husband and is currently making repayments.  He still owes the applicant $20,000 and has given her amounts of $5,000 on occasions.

14.     Mr Angelich believes there had been a misunderstanding between Centrelink and the applicant.  He thought she had responded to Centrelink’s letter on 26 May 2008.  In particular, he recalls the applicant telephoning Ms Ritchie at Centrelink, and her being told “it was okay”, and that she was satisfied with the applicant’s response on the telephone.  Mr Angelich did not sight the letter sent by Centrelink, as the letter was posted to the applicant’s residential address.  Mr Angelich identified her handwriting on that letter.

15.     Mr Angelich did not receive any mail for the applicant during her overseas trip.  Her mail was posted to her residential address.

16.     The applicant gave further evidence to the effect that she had received a letter from Centrelink dated 19 May 2008, and confirmed her handwriting on the copy of the letter in the T-Documents (at pages 27 and 29).  She also referred to Centrelink’s letter dated 26 May 2008, requesting documentation from her, as being an outcome of the telephone conversation with Centrelink’s Ms Ritchie.  She confirmed that the documents Centrelink had requested were not provided on that day.  The applicant could not recall when she produced bank statements and her passport to Centrelink. She knew that she would lose her pension if the documents were not provided. 

17.     The applicant contends that “misunderstandings occurred” between different Centrelink offices that she contacted as “they did not communicate much with each other”.

CONSIDERATION

18.     The Tribunal found the applicant to be vague and confused when giving her evidence. She provided conflicting explanations for events in this matter. The applicant made reference to diary entries when providing her evidence, but she could not recall specific incidents mentioned in those entries.

19.     The Tribunal also found Mr Angelich’s evidence to be inconsistent with that of the applicant, particularly in regards to the mailing arrangements.   

20.     The Tribunal finds from all of the evidence and material before it that the applicant did not produce the bank statements and passport requested in May 2008 by Centrelink, until December 2008.  In reaching this conclusion, the Tribunal relies on the applicant’s diary entries and her written notations on the Centrelink letter dated 19 May 2008.  The Tribunal also relies on the entries and materials on the Centrelink file.

21.     Consequently, the Tribunal finds that:

§ Centrelink’s letter to the applicant, dated 26 May 2008, is an “information notice” given pursuant to s196 of the Administration Act. Further, the information notice complies with the requirements of that section; and

§ the applicant did not comply with the “information notice” given to her on 26 May 2008, as she failed to provide the requested information to Centrelink. Therefore, Centrelink made the correct decision to cancel her pension on 11 June 2008, in accordance with s 81(1) of the Administration Act.

22. As the Tribunal has found that the applicant’s pension was correctly cancelled, there is no scope for payment of arrears when the applicant reapplied for pension in December 2008. The applicant was notified of the decision to cancel her pension by letter dated 27 August 2008. She did not seek review of that decision until 30 December 2008. Therefore, the applicant cannot be paid pension from a date earlier than 29 December 2008, as she applied for review more than 13 weeks after the notice was received: s109(2) Administration Act.

23. The Tribunal understands that Centrelink posted the cancellation notice to the applicant’s residential address. Consequently, notice of the decision is taken to have been given to the applicant, in accordance with s 237 of the Administration Act, as the notice was sent by pre-paid post to her last known postal address.

DECISION

24.The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed: ...................[sgd]...........................................................
  Associate

Date of Hearing  8 September 2009
Date of Decision  22 September 2009
The Applicant was self-represented
For the Respondent                  Mr R Hamilton, departmental advocate