NPXR and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 1949
•16 September 2025
NPXR and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1949 (16 September 2025)
Applicant/s: NPXR
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/9109
Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:16 September 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision as follows:
(a)Pursuant to section 85AA of the Social Security (Administration) Act 1999, the applicant’s age pension is payable as if the payment had never been cancelled or suspended; and
(b)Pursuant to section 109(2) of the Social Security (Administration) Act 1999 the date of effect of this favourable determination is 2 July 2024.
Statement made on 16 September 2025 at 3:27pm
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
Catchwords
SOCIAL SECURITY – age pension – cancellation – failure to produce proof of life certificate – address of notices – correspondence nominees – notices taken to be given – strict compliance with proof of life certificate requirements – valid proof of life certificate provided after hearing – effect of section 85AA Social Security (Administration) Act 1999 – reviews under section 126 and 129 Social Security (Administration) Act 1999 - Tribunal has all powers of original decision maker – limitation on date of effect of favourable decision on review where review is a section 126 review and where review is a section 129 review – decision set aside and substituted
Legislation
Social Security (Administration) Act 1999 – sections 63(2AA)-(2AC), 85AA
Administrative Review Tribunal Act 2024 – section 54Other material
Social Services Legislation Amendment (Overseas Welfare Recipients Integrity Program) Bill 2019 - explanatory memorandum
Statement of Reasons
Ms NPXR resides in Lebanon and received age pension until 27 January 2023 when Centrelink suspended the payment because she had not returned a ‘proof of life’ form.
Ms NPXR’s son, Mr H, was Ms NPXR’s correspondence and payment nominee from 19 May 2021. The cessation of Ms NPXR’s age pension was not noticed until approximately 2 July 2024, when Mr H requested review of the decision.
Due to what has been explained by the Secretary as likely to be attributable to a coding error, an authorised review officer set aside the decision under review and reinstated the age pension from 2 July 2024, but that decision was never implemented by Centrelink. The Secretary’s position in any event is that the decision of the authorised review officer was wrong (at the time it was made).
On 15 July 2024, Mr H applied for review in the Administrative Appeals Tribunal (AAT). On 1 October 2024 the AAT affirmed the decision, but possibly due to the same coding error the decision, now affirmed by the AAT, remained unimplemented.
On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal (the Tribunal) commenced operations. The Tribunal has jurisdiction to undertake social services second reviews of the decisions of the AAT at first review.
On 6 November 2024, Ms NPXR, through Mr H, applied for second review of the AAT’s decision in the Tribunal.
Following the hearing of 8 August 2025, on 12 August 2025 Ms NPXR completed a proof of life form in the presence of a consular official at the Australian Embassy in Beirut[1].
[1] The Secretary accepts this certificate meets the requirements of section 63A of the Administration Act in this regard.
CONSIDERATION
Subsections 63(2AA)-(2AC) of the Social Security (Administration) Act 1999 (the Administration Act) establish a scheme whereby persons in receipt of (relevantly) age pension who have reached the age of 80 years and who have been continuously absent from Australia throughout the previous 2 years may be required to give the Secretary a proof of life certificate within 13 weeks of being requested to do so. Section 63A of the Administration Act imposes certain formal requirements in relation to a proof of life certificate, which must be complied with strictly.[2] Relevantly, the strict requirements of the proof of life certificate include that a statement that a person is alive must be signed and dated by the person, or by another person signing on that person’s behalf if specified requirements are met. The form also requires that an authorised certifier make a statement that the person concerned has verified their identify, is alive and the authorised certifier sighted the person while in their physical presence.
[2] See subsection 63A(7) of the Administration Act which displaces the provision in section 25C of the Acts Interpretation Act 1901 for substantial compliance with forms.
The purpose of these requirements for persons aged over 80 who are absent from Australia is largely self-evident. At the time the legislation enacting these provisions were introduced into Parliament[3], data showed a significant disparity between the death rate of pensioners aged over 80 years of age in Australia when compared to those overseas. The disparity was large enough for Services Australia to conclude that it was not being notified in all cases in a timely manner when a person dies overseas. The context being that age pension would continue to be paid until the death of the pensioner had been reported by family members or friends. The provisions can be seen to be therefore an important integrity measure for the social security system.
[3] Social Services Legislation Amendment (Overseas Welfare Recipients Integrity Program) Bill 2019 explanatory memorandum
Subsection 63(7) of the Administration Act authorises the Secretary to notify a person that the proof of life certificate is required by sending notice by prepaid post to the last known address or in any other way the Secretary considers appropriate.
Subsection 64(1) of the Administration Act provides that if a person has been notified that they are required to provide a proof of life certificate,[4] and except in cases where the Secretary is satisfied that a person has a reasonable excuse for not complying with the requirement,[5] and where the Secretary is satisfied that it is reasonable for subsection 64(1) of the Administration Act to apply to the person, the payment the person is receiving is not payable. This provision applies subject to the notice requiring the person to provide the proof of life certificate informing the person of the effect of that provision.[6]
[4] Paragraph 64(1)(b) of the Administration Act
[5] Paragraph 64(1)(e) of the Administration Act
[6] Subsection 63(76) of the Administration Act.
Section 80 of the Administration Act provides that if the Secretary is satisfied that a social security payment is being paid to a person to whom the payment is not payable, the Secretary is to determine to cancel or suspend the payment.
In Ms NPXR’s case, it is not in issue that she turned 80 years of age on a date in early 2022, nor that she had been continuously absent from Australia since 2014. In this way, the Secretary was authorised by subsection 63(2AA) of the Administration Act to require Ms NPXR to provide a proof of life certificate, and indeed was and is obliged to impose that requirement at least once every 2 years.[7]
[7] Subsection 63(2AC) of the Administration Act
I am satisfied that the Secretary did in fact require Ms NPXR to provide a proof of life certificate by notice dated 28 July 2022. The notice informed Ms NPXR of the effect of section 64 of the Administration Act in that it stated that if the form was not returned by the identified date (at the expiry of a 13-week period from the date of the notice) than the Australian age pension may be stopped.
The address to which the notice was sent was remarked upon by the AAT. In this regard, the address does not follow a format of number, street, town or suburb as one might expect for an Australian address, but rather is addressed to Ms NPXR at a particular locality. I note in this regard that the AAT considered this address would have been insufficient to ensure delivery. I am not satisfied that is necessarily so, as address formats around the world vary greatly and it cannot be assumed that even unusually vague delivery instructions will not be effective, particularly in small places. Mr H described in general terms the nature of the locality, and also suggested that postal delivery in Lebanon is generally fraught with unreliability. It must also be observed that the address was provided to Centrelink either by Ms NPXR or on her behalf, and given the address was provided for the purpose of Centrelink sending correspondence, it must have been considered to be suitable for that purpose at that time.
Mr H contends that his mother did not in fact receive the letter, or the reminder that was issued on 14 September, or the notice of suspension issued on 27 October 2022, or the notice of cancellation of 27 January 2023.
Mr H also contends that he, as correspondence nominee, did not receive the correspondence of 28 July 2022, 14 September 2022, 27 October 2022, or 27 January 2023 at his address in Victoria. I note that Mr H’s status as correspondence nominee was not conclusively established by reference to Services Australia’s records until after the hearing when specific enquiries were made in this regard. I am satisfied in light of those enquiries, supported by the computerised records, that Mr H was the correspondence nominee from 19 February 2014, and therefore at all material times. The significance of this is that regardless of what one makes of the address used to send the notice to Ms NPXR, the giving of the notice to Mr H amounts to the giving of the notice to Ms NPXR: subsection section 123I(1) of the Administration Act.
Section 237 of the Administration Act provides generally that a notice of a decision under the social security law that is sent by prepaid post to the postal address of the person last known to the Secretary is taken to have been given to the person, and is taken to be delivered in the ordinary course of the post unless the contrary is proved. As mentioned above, subsection 63(5) makes equivalent provision. Although I note Mr H contends that he received no such notice, there is insufficient corroborative or persuasive evidence to indicate the letter and indeed the reminder, suspension and cancellation notice were not delivered in the ordinary course of the post.
I am satisfied that Ms NPXR was subject to a requirement to provide a proof of life certificate by 26 October 2022, and was effectively and lawfully notified of that requirement. I am further satisfied that she failed to do so.
In circumstances where the notice was sent to the address provided to Centrelink for that purpose and to the correspondence nominee, I am not satisfied that there is any reasonable excuse for not complying with the notice, and specifically I am not satisfied that it has been established that the notice was not delivered to Ms NPXR or Mr H such that the non-delivery of the notice might constitute a reasonable excuse for non-compliance for the purposes of paragraph 64(1)(e) of the Administration Act. In all the circumstances, I am satisfied that it was and is reasonable for subsection 64(1) of the Act to have applied and to apply to Ms NPXR, and as such her age pension was not payable at any time after 26 October 2022.
As such, and subject to what has since transpired, the decision to suspend and cancel Ms NPXR’s age pension was correct.
In light of a valid proof of life certificate having now been provided to the Secretary and the Tribunal, the Secretary draws attention to section 85AA of the Administration Act, which relevantly provides that if a person’s social security payment is cancelled because of the person’s failure to provide a proof of life certificate , and the proof of life certificate is then given to the Secretary the Secretary may under section 126, review the cancellation of the person’s social security payment; and as a result of the review, determine that the social security payment is payable to the person as if the payment had never been cancelled.
The Secretary further contends that the review referred to in section 85AA of the Administration Act remains subject to other provisions of the Administration Act which limit the date of effect of favourable determination resulting from review. The Secretary contends that the Tribunal should substitute a decision suspending Ms NPXR’s age pension from 27 October 2022 and reinstate the age pension from 2 July 2024, pursuant to section 85AA and 109 of the Administration Act.[8]
[8] Further submissions dated 12 September 2025
I have considered the express reference in section 85AA of the Administration Act 1999 to the Secretary reviewing a cancellation under section 126 of the Administration Act, being mindful that the procedure leading to this review does not stem from the Secretary undertaking a review under section 126, but rather stems from a review under section 129 of the Administration Act. Section 54 of the Administrative Review Tribunal Act2024 however provides that the Tribunal can exercise all the powers and discretions conferred on the decision-maker by an Act. I am confident therefore that in undertaking the review I am not constrained by the express reference to section 126 of the Administration Act in section 85AA of the Administration Act.
As to the date of effect of any favourable determination, I have considered subsection 109(2) of the Administration Act and also subsection 109(5) of the Administration Act.
The former provision is likely to be the subsection relied on by the Secretary to contend that the date of effect of the reinstatement of the age pension must be limited to the date Ms NPXR applied for review of the cancellation decision: 2 July 2024. That application for review was originally made under section 129 of the Administration Act. Subsection 109(2) provides that where notice is given to a person informing them of a decision, and more than 13 weeks after the notice is given the person applies to Secretary under section 129 of the Administration Act for review of the original decision, and a favourable determination is made, the favourable determination takes effect on the day on which the application for review was made.
I consider that subsection 109(2) of the Administration Act remains applicable to the circumstances of this matter and the Secretary’s contention and suggestion should be accepted. While I am exercising a power under section 126 of the Administration Act (which must necessarily be the case having regard to the terms of section 85AA of the Administration Act), I am doing so in the context of a review of a decision initially made under section 129 of the Administration Act, and so it follows that the limitations on date of effect that apply to that process will apply to my decision.
Alternatively, I have considered whether subsection 109(5) of the Administration Act is applicable. That provision is equivalent to subsection 109(2), except it relates to the date of effect of favourable decisions made by the Secretary under section 126, albeit only where the decision under section 126 is made ‘without any application under section 129 for review of the decision having been made’. This text in subsection 109(5) of the Administration Act leads me to conclude it is not applicable to the circumstances of this matter, where Ms NPXR has made an application for review under section 129 which has ultimately found its way to social services second review in the Tribunal. Subsection 109(5) of the Administration Act provides for the date of effect of any favourable determination made under section 126 without any application under section 129 having been made, to be the day the Secretary began the review.
Finally, and for completeness, I record that I have reflected on the text of section 85AA of the Administration Act itself. That provision provides that I may determine that the social security payment is payable to the person ‘as if the payment had never been cancelled’.
I do not consider that this legislative text is intended to circumvent or override the provisions of section 109 of the Act such that there will be no limitation on the date of effect of the favourable determination on the review under section 126 of the Administration Act in circumstances where either the review is not commenced by application under section 129 of the Administration Act (as here) within 13 weeks, or by the Secretary under section 126 of the Administration Act, triggered by the provision of the proof of life certificate. The notion that a payment is payable to a person as if it had never been cancelled is, in my view, nonetheless consistent with the text and purpose of the provisions providing for limitations on the date of effect of favourable determinations in circumstances where review rights are not exercised within 13 weeks, such that both provisions are capable of operating together. The combined application of those provisions produces in substance the outcome contended for by the Secretary.
I therefore accept the substance of the Secretary’s proposed resolution of the review, albeit I identify no purpose in substituting the cancellation decision for a suspension decision in circumstances where section 85AA of the Administration Act provides for the payment to be payable as if it had never been cancelled (subject to the date of effect limitations discussed above).
DECISION
The Tribunal sets aside the decision under review and substitutes a decision as follows:
(a)Pursuant to section 85AA of the Social Security (Administration) Act 1999, the applicant’s age pension is payable as if the payment had never been cancelled or suspended; and
(b)Pursuant to subsection 109(2) of the Social Security (Administration) Act 1999, the date of effect of this favourable determination is 2 July 2024.
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