NINA GOTSIS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 184

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2248

GENERAL ADMINISTRATIVE DIVISION		)
Re		NINA GOTSIS

Applicant

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

Respondent

DECISION

Tribunal Dr T M Baker, Member

Date19 March 2009

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Dr T M Baker
  Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Suspension and cancellation – Failure to respond to request for information that may affect payment – Intellectual disability – Reinstatement of payment – Arrears – Request for review of decision made more than 13 weeks after notice given – No provision in legislation to pay arrears – No discretion in legislation – Decision under review affirmed

Social Security (Administration) Act 1999 – ss 67, 68, 81, 109, 129, 237

REASONS FOR DECISION

19 March 2009 Dr T M Baker, Member

The Decision under Review

1.      This application requests a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 2 May 2008 affirming a decision of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (Secretary) to suspend the applicant’s disability support pension from 4 April 2007 and then cancel the applicant’s payment from 4 July 2007.

Issue

2.      The Tribunal has been asked to decide whether or not the applicant’s disability support pension is payable from 4 April 2007.

Background Facts

3.      The applicant, Nina Gotsis, was born with Down syndrome in June 1977.

4.      Nina has received a disability support pension since 19 May 1994.

5.      On 24 January 2007, Centrelink sent a review form to Nina’s residential address, that requested information about Nina’s income and assets.  Nina was required to complete this form and return it to Centrelink.

6.      On 7 March 2007, Centrelink sent another review form to Nina because the form sent on 24 January 2007 had not been returned to Centrelink.

7.      On 4 April 2007, Centrelink advised Nina that her disability support pension had been suspended because neither of the forms sent on 24 January 2007 and 7 March 2007 had been returned.

8.      On 4 July 2007, Centrelink advised Nina that her disability support pension had been cancelled, again because neither of the forms sent on 24 January 2007 and 7 March 2007 had been returned.

9.      On 3 December 2007, Mr Dimitri Gotsis, the applicant’s father, telephoned Centrelink to enquire about the status of Nina’s disability support pension.  It was only at this point that Mr Gotsis became aware that Nina’s pension had been cancelled.

10.     On 4 December 2007, Nina and Mr Gotsis attended Centrelink and provided them with the information that had been requested in Centrelink’s correspondence to Nina dated 24 January 2007 and 7 March 2007.  Nina’s disability support pension was reinstated after that date.

11.     Mr Gotsis requested that Nina’s pension be backdated to 4 April 2007.  However, because Nina had not requested a review of the decision to suspend or cancel her pension within 13 weeks of those decisions, the decision to pay Nina’s pension in arrears was refused.

12.     Mr Gotsis requested a review of Centrelink’s decision to refuse the payment of Nina’s pension in arrears.

13.     On 21 December 2007, an authorised review officer (ARO) reviewed Centrelink’s decision to cease payment of Nina’s disability support pension from 4 April 2007.  The ARO decided that the disability support pension was only payable from 3 December 2007.

14.     On 6 March 2008, Nina submitted an application to the SSAT appealing the ARO’s decision.

15.     On 2 May 2008, the SSAT affirmed the ARO’s decision.

Consideration

16.     The relevant legislation relating to this application is the Social Security (Administration) Act 1999 (Administration Act).

17. Section 68 of the Administration Act provides:

(1)Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors concession allowance) is being paid.

(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(a)       inform the Department if:

(i)        a specified event or change of circumstances occurs; or

(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.

18. On 24 January 2007 and 7 March 2007, pursuant to section 68 of the Administration Act, Centrelink sent review forms to Nina’s residential address, which requested information about Nina’s income and assets so that her pension rate could be reviewed. Neither of these forms were returned to Centrelink.

19. Section 81(1) of the Administration Act provides that if a person who is given notice under section 67 or 68 requiring the person to provide a statement does not provide the information required by that notice, the Secretary may cancel or suspend the person’s payment.

20. On 4 April 2007, pursuant to section 81(1) of the Administration Act, Centrelink advised Nina that her disability support pension had been suspended because neither of the forms sent to Nina on 24 January 2007 and 7 March 2007 had been returned.

21. On 4 July 2007, again pursuant to section 81(1) of the Act, Centrelink advised Nina that her disability support pension had been cancelled because neither of the forms sent to Nina on 24 January 2007 and 7 March 2007 had been returned.

22. Section 237(1)(c) of the Administration Act provides that notice of a decision is taken to have been given to a person if the decision is sent by prepaid post to the postal address of the person last known to the Secretary. Section 237(2) of the Administration Act provides that notice of a decision may be given to a person by properly addressing, prepaying and posting the document as a letter.

23. The notices sent to Nina on 4 April 2007 and 4 July 2007 advising her that her pension had been suspended and cancelled, respectively, were sent to Nina’s nominated postal address. For the purposes of section 237 of the Administration Act, therefore, Nina was taken to have been given proper notice of the decisions to cancel and suspend her pension.

24.     Subsequent to the notices, there is no record that any contact had been made with Centrelink about Nina’s pension until 3 December 2007 when Mr Gotsis telephoned Centrelink to find out why Nina’s payments had ceased.  On the following day, Mr Gotsis attended Centrelink’s offices with Nina to lodge a completed income and assets form.  He also arranged to become Nina’s correspondence nominee so that any future letters from Centrelink could be sent directly to him. 

25.     Nina’s disability support pension was ultimately reinstated from 3 December 2007 because this is the date Mr Gotsis contacted Centrelink on Nina’s behalf, and is regarded as the date on which a request was made to review the Secretary’s decision to suspend and then cancel Nina’s payment.  However, Mr Gotsis also requested a review of the decision not to pay Nina’s pension in arrears from 4 April 2007, the date the payment of Nina’s pension first ceased.

26. Section 129 of the Administration Act provides that a person who is affected by a decision about their pension may seek a review.

27. However, in relation to Mr Gotsis’ request for Nina’s pension to be paid in arrears, section 109(2) of the Administration Act is relevant. It provides as follows:

(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, or 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.

28.     Applying this legislation to the facts in this case, since:

(a)notice of the suspension and cancellation of Nina’s pension was taken to have been given to Nina on 4 April 2007 and 4 July 2007; and

(b)Mr Gotsis’ request for a review of the decisions was in December 2007, more than 13 weeks after the notices were given;

the decision by Centrelink to reinstate Nina’s pension could only take effect from the day on which Mr Gotsis requested the review.  Unfortunately, the legislation does not provide for Nina’s pension to be paid to her in arrears.

29.     It is noted that Mr and Mrs Gotsis have tried to allow Nina to be as independent as possible despite her intellectual disability.  Whilst I can appreciate this, I am somewhat surprised that Mr and Mrs Gotsis did not at least oversee Nina’s financial affairs, particularly given Mr Gotsis’ evidence that Nina tends to “put away” important information.

30.     I find this situation unsatisfactory on a number of levels.  Mr Gotsis has stated that neither he nor his wife had been made aware by Centrelink that they could act as Nina’s correspondence nominees.  He said that his wife had contacted Centrelink on numerous previous occasions about Nina’s pension, but she was never told by Centrelink that she could act as Nina’s nominee.  It concerns me that there is evidence that Centrelink was aware of Nina’s disability and there were numerous opportunities whereby Centrelink could have, and should have, advised Mr and Mrs Gotsis that they could act as Nina’s nominees.  However, there is also cause to question why Mr and Mrs Gotsis did not make enquiries themselves as to whether they could act as Nina’s nominees, particularly given Nina’s disability and their knowledge of Nina’s tendency to hide important information.

31.     Unfortunately, there is no discretion in the legislation which allows me to make a decision in Nina’s favour.  I sympathise with the Gotsis family’s situation and understand their frustration about the inflexibility in the legislation.  However, the Tribunal is bound to apply the legislation as it stands, and there is currently no provision in the legislation for the payment of Nina’s pension in arrears.

Decision

32.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M T Baker, Member

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

Date of Hearing  8 December 2008
Date of Decision  19 March 2009
Appearance for the Applicant     Mr D Gotsis
Appearance for the Respondent Mr K Bullock