Palmer and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1067
•19 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1067
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600922
GENERAL ADMINISTRATIVE DIVISION ) Re TYSONE PALMER Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date19 February 2007
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
John Handley
Senior Member
SOCIAL SECURITY – disability support pension – claim form disclosed applicant living away from home of his parents – failure to pay at (higher) independent rate – applicant not aware of that entitlement – later learnt of higher benefit – claim for arrears denied – respondent relied on s109 of the Social Security (Administration) Act – entitlement confined to arrears for 13 weeks prior to application for review – content of notice of original decision – respondent required only to notify the decision and its content – not required to give reasons or information – concession by respondent it was in error – CDAA compensation will be assessed – decision affirmed
Social Security Act 1991 (Cth) s94, s117, s1066AB1 and s600G, J and K
Social Security (Administration) Act (Cth) 1999 s78, s108, s109, s129
Austin v Secretary, Department of Family and Community Service (1999) 92 FCR 138
Rigg and Secretary, Department of Family and Community Services [2006] AATA 9
Secretary, Department of Family and Community Service v Rogers [2000] FCA 1447
REASONS FOR DECISION
19 February 2007 Mr John Handley, Senior Member 1. The circumstances giving rise to this application are very unfortunate and are briefly described as follows.
2. Tysone Palmer, the applicant in these proceedings, is presently 19 years of age. He qualified for disability support pension (DSP) because he was assessed as having an intellectual or psychiatric impairment attracting 40 impairment points under Table 10 of the Impairment Tables appended to the Social Security Act 1991 (the Act). The application for DSP was made on his behalf, by his mother, Debbie Abblitt, on 19 January 2004.
3. The application for pension recorded that Tysone lived in a Community Residential Unit (CRU) having an address different to the address of his mother. In a separate form bearing the same date there is a disclosure that he lives away from the family home. In a memorandum dated 19 January 2004, an officer of Centrelink recorded Customer is not claiming independent rate of payment. Customer is not claiming the living away from home rate. Towards the end of 2005, Mrs Abblitt learnt that her son should have been paid a higher rate of DSP by reason of him living away from the parental home. She queried his monetary entitlement by a telephone call to Centrelink on 10 November 2005 (T18). Shortly before that telephone call was made, Mrs Abblitt learnt that three other persons in the CRU where her son resided had not been paid DSP at the independent rate. She subsequently learnt that the parents of those persons had made representations to the Ombudsman and eventually a decision was made in each of their cases, by Centrelink, to pay DSP at the independent living rate from the date of the original claim. In the present application, Centrelink has declined to adjust the DSP payment to include the independent rate from the date of the claim made on 19 January 2004. The respondent acknowledges that it was in error in not making DSP payment at the independent rate from January 2004. It has made a submission to have a payment made to Tysone pursuant to its policy with respect to defective administration. It has also been decided that a payment, if made, will not occur until this review has concluded.
4. Initially, an officer of Centrelink decided to pay DSP at the higher rate from 19 June 2006 following a telephone enquiry made by Mrs Abblitt on that date (T19, T20, T21, T22, T25). Later an authorised review officer (ARO) decided to vary that decision and pay DSP at the higher rate from 10 November 2005 because it was on that date that Mrs Abblitt first queried the rate of DSP being paid (T18). For the purposes of the present application, the respondent concedes DSP should be paid at the higher rate from 26 September 2005 being the date of the last notice of DSP sent to Tysone (T17), that notice having been issued within 13 weeks of 10 November 2005 (refer s109 of the Social Security (Administration) Act 1999 (the Administration Act). That concession is consistent with the varied decision made by the Social Security Appeals Tribunal (SSAT) on 6 September 2006 which was not challenged by the respondent. Accordingly this application is now confined to a claim for arrears of DSP at the higher rate between 19 January 2004 and 26 September 2005.
the legislation
5. For reasons which will hopefully become apparent later, it is necessary to refer to applicable legislation.
6. Entitlement to DSP is found at s94 of the Act. The method of calculating the rate of DSP is – pursuant to s117 of the Act – to be undertaken by reference to pension rate calculator D found at s1066A ‑ B1 at Part 3.4A within Chapter 3 of the Act. Column 2 of the calculator refers to persons who are not members of a couple, who are either under 18 or who have reached 18 years of age and who are either independent or living away from the person’s parental home because of a medical condition or who are not living at a home of parent or parents. Such persons are regarded by Centrelink as being either an independent person (T20) or a person who is paid DSP at the independent rate (T21, T25).
7. Section 109 of the Administration Act is applicable and is reproduced as follows:
109 Date of effect of favourable determination resulting from review
(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.
(4) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) the person is given a notice informing him or her of the original decision; and
(c) the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d) as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(5)If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) the person is given a notice informing him or her of the original decision; and
(c) the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d) as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.
8. A favourable determination as that expression variously appears throughout s109 is defined at s108 of the Administration Act as (relevantly) a determination made under s78 of the Administration Act. That section provides that if the Secretary of the respondent department is satisfied that the rate at which a social security payment is being paid is less than the rate provided by the social security law, the Secretary must determine that the rate be accordingly increased and specify the increased rate in a determination that must be issued.
9. The expression the original decision also variously appears throughout s109 but I cannot locate any part in either the Act or the Administration Act which defines that expression. For the purposes of this analysis I am satisfied that the original decision is the decision first made following the making of a claim being a decision notifying of the outcome of the claim. For the purposes of the present application it would appear that the original decision was made on 11 February 2004 (T9).
10. Section 109 also refers to an application for review under s129 of the Administration Act. That section permits a person in certain circumstances to apply for review of a decision. In the present application, the respondent has deemed the enquiry made by telephone on 10 November 2005 as constituting an application for review.
11. For the purposes of this review I am satisfied that the DSP is a social security payment (as that expression is found within s109) within the meaning of s23 of the Act. The expression social security payment is also found within s78 of the Administration Act (refer earlier) which refers to payments being paid at a rate less than the rate provided by the social security law.
12. I am satisfied that since 19 January 2004, Tysone has lived away from the home of his parents by reason of his medical condition. It therefore follows that he has had an entitlement, but for his application not being correctly processed, to be paid DSP at the independent rate. None of the above findings are in dispute.
submissions of the respondent
13. The respondent relied on the decision of Drummond J in Austin v Secretary, Department of Family and Community Service (1999) 92 FCR 138 (Austin). It was submitted that if it was found that a notice was given to an applicant, that it need contain nothing more than advice that a decision had been made and advice also as to the rate of payment (if applicable) that would be paid. That decision was made under the provisions of s600G, J and K of the Act. Those provisions have subsequently been repealed.
submissions of the applicant
14. Mrs Abblitt, on behalf of Tysone, submitted that she did not know at the date of claim that a higher rate of payment was payable to Tysone. In those circumstances, how could she be expected to seek review of a decision which failed to properly process her son’s entitlement to a benefit she did not know existed? That the respondent has subsequently admitted that it was in error is of no comfort if he is restricted to a favourable decision which entitles a higher rate only for a maximum period of 13 weeks before the date of his application for a review pursuant to s129 of the Administration Act.
15. Additionally, Mrs Abblitt submitted that despite the claim forms referring to an information booklet which accompanied the form, no reference is made in the booklets to entitlement to payment at a (higher) independent rate. The relevant booklets were received into evidence and I am satisfied that no such reference exists. It was therefore impossible to know by printed Centrelink advice that such an entitlement existed. Mrs Abblitt did subsequently obtain another publication entitled A Guide to Australian Government Payments, apparently published by Centrelink and which refers, at page 8, to a higher rate being paid to a disability support pensioner if regarded as being independent.
16. Mrs Abblitt submitted that she had assumed at all relevant times that Centrelink officers were processing the correct entitlement to her son. She acknowledged that if she had been informed of the absence of payment at the independent rate but had failed to act on that advice, Tysone would be confined to a payment at the higher rate, after seeking review, for a maximum period of 13 weeks. But in the present circumstance where,
(i)the benefit was not paid,
(ii)she did not know that such a benefit existed, and
(iii)the notices failed to have regard to the existence of that benefit or the fact that it was not being paid,
it was, in the circumstances, harsh and unfair for her son to be denied his proper entitlement from January 2004 when he first claimed.
conclusion and reasons for decision
17. In Secretary, Department of Family and Community Service v Rogers [2000] FCA 1447 (Rogers), Cooper J had regard to Austin in his decision concerning the provisions of s299 of the Act which have also been repealed.
18. Deputy President Hotop in Rigg and Secretary, Department of Family and Community Services [2006] AATA 9 relied on the decision of Cooper J in his decision which was delivered on 9 January 2006.
19. Both Drummond J in Austin and Cooper J Rogers had regard to provisions of the Act which were similar in nature to the current s109 of the Administration Act. Their decisions involved appeals against decisions of this Tribunal concerning persons who sought review of decisions made by Centrelink with respect to benefits which had either not been paid or which had been paid in part only. In both decisions their Honours exhaustively examined the meaning of the word notice which appears within their decisions and which appeared within the legislation prior to it being repealed. Their decisions are relevant to this review, no less than for the reasons given by Cooper J in Rogers at paragraphs 33 and 34 which are reproduced as follows:
33 In my view, the matter to be communicated by the "notice" referred to in subsections 299(2), (3) and (4) 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 of s 299.
34 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) 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.
20. Deputy President Hotop reviewed an application by a person claiming carer allowance who did not query the failure on the part of the Secretary to pay rent assistance as a component. Deputy President Hotop considered the provisions of s109 and having found that a notice within the meaning of that section had been given to the applicant on two occasions, decided:
41. Notwithstanding the giving of such notice – which, in each case, clearly indicated (albeit by omission) that the total fortnightly amount of carer payment that was being paid to the applicant did not include an amount of rent assistance – the applicant did not query with Centrelink, or apply for an internal review of, either of those decisions until 24 February 2004 at the earliest – that is, more than 13 weeks after the notice of each decision was given to him. Accordingly, by s109(2) of the Administration Act, the relevant favourable determination – that is, the determination of 2 March 2004 that rent assistance was payable to the applicant as a component of the total rage of his carer payment – takes effect on 24 February 2004.
21. In this review I am obliged to consider and required to apply the law. The relevant law involves the Act, the Administration Act and decisions made by the Federal Court and this Tribunal. If this review involved the application of sentiment the conclusion would be different.
22. Section 109 regulates the effect of favourable determinations but being dependant upon when a review is sought. A recurring theme throughout s109 (except s109(3)) is the giving of a notice informing the person of the original decision. In the present application a notice (refer letter of 11 February 2004 at T9) was given to Tysone (the person) which informed him of the original decision (being the decision to grant DSP as was claimed). In my view the respondent undertook what it was required to do by the Administration Act. Consistent with the decision of Cooper J in Rogers, the notice did contain its two mandatory elements namely, advising that a decision had been made and the content of the decision. As His Honour decided (refer earlier) the legislation (s109) does not require that the notice contain reasons or information to understand the main reasons for the decision . . . The legislation does not compel the respondent, as the decision-maker, to give reasons for its decision (as found within the notice) nor is it compelled to explain or advise of its calculations.
23. Mrs Abblitt did not seek review of the original decision until November 2005 because she was not aware until shortly prior to that time that her son had been underpaid DSP by the respondent by its failure to assess him as being an independent person. That is to say, she could not have sought a review of the original decision in the absence of knowledge that the calculations were in error. It is not then difficult to comprehend her submission that the entitlement to her son should be backdated to January 2004 when the error first commenced and from which date the error continued. But s109 does not permit such a course unless review is sought within 13 weeks after the notice of the original decision (s109(1)). If more than 13 weeks has elapsed after notice of the original decision and if a favourable determination is made as a result of that application for review, the favourable determination will take effect from the day that the application for review was made (s109(2)). It is for those reasons that the respondent has decided to pay DSP at the independent rate from September 2005 only because:
(a)It has deemed the letter of 26 September 2005 which gave notice of an adjusted rate of DSP as being an original decision; and
(b)It has regarded the telephone enquiry of 10 November 2005 as an application for review; and
(c)Because that enquiry was made within 13 weeks of 26 September 2005, it has decided to pay the independent rate from that date; and
(d)payment at the independent rate cannot be made from 19 January 2004 because an application for review was not made within 13 weeks of the original decision of 11 February 2004.
24. Mrs Abblitt submitted that the provisions of s109 are harsh because if her son or any other beneficiary had been overpaid, the respondent would have sought to recover the overpayment from the date of its commencement. That is so and the explanation for it might be – alternatively an explanation for the absence of a restriction on recovery of past overpayments might be – that the Secretary is responsible for the administration of the public purse and recovery of benefits to which persons were not entitled. In so far as s109 or its equivalent is concerned, Cooper J in Rogers, in his consideration of the repealed s299, understood the policy limiting arrears to be (para 29):
The policy objective underlying subsection 299(3) is also clear enough. It is that a benefit recipient who is aware of a decision which affects his or her benefit entitlement must seek review within a reasonable time (three months) to provide for the orderly administration of the scheme by the Department by discouraging recipients failing to act in their own interests in a timely manner.
25. In conclusion therefore, errors made by the respondent are only subject to the regime of correction by the provisions of s109. Intervention by the Ombudsman or payment for compensation for defective administration are outside the ambit of the legislation and beyond the jurisdiction of this Tribunal.
26. The policy objective decided by Cooper J (above) may have application where a benefit is denied or ended. Persons are then likely to agitate an appeal. They are unlikely to wait more than 13 weeks probably because they are income dependent. When they do challenge a decision of those types, they will at least be given reasons, not by the notice but by the ARO who has the responsibility to conduct the review (the appeal). But such a policy objective as understood by Cooper J may be thought harsh or unfair where a benefit is paid but is absent a component to which there is an entitlement and of which the recipient has no knowledge of its availability and of it not being paid. That is to say, they can hardly be accused of failing to act in their own interests in a timely manner. Citizens are entitled to rely upon the expertise and advice of administrative agencies who process benefits to which there is an entitlement. If those benefits contain a number of components, citizens are entitled to the reassurance of receiving all of those components. In the present case, the DSP that has been paid since January 2004 has included a number of components which were notified to Tysone in letters that he received from time to time. But he was never notified that he was entitled to be paid at the independent rate and he was not ever paid at that rate. The claim forms were crystal clear in their disclosure that he was living in special accommodation away from the residence of his parents. It was obvious that he was independent. It is difficult to comprehend how the error in the administration was made. The memorandum of 19 January 2004 (refer para 3 earlier) is difficult to comprehend. It is inconceivable that if a separate claim for payment at the independent rate was required, that Mrs Abblitt would not have completed it. That notation by a Centrelink officer did not feature at all in this review and reliance has not been placed upon it, at any stage, by Centrelink since 26 September 2005. As a fact, I am not satisfied that it accurately records the representations made at January 2004 when the DSP claim was made.
27. In the absence of a legislated requirement to provide or explain reasons in similar circumstances endured by the applicant in these proceedings, persons who are denied a component of a benefit will be disadvantaged by the 13 week limit under s109. The attention of the policy makers and of the Parliament should be drawn to this anomaly.
28. The error in failing to pay at the independent rate from January 2004 is deserving of correction. Consistent with the acknowledgement on the part of the Secretary that the error was made, it would be expected in the circumstances that Tysone receive the benefit of a favourable claim for compensation, (by reason of defective administration) being the equivalent of the independent rate not paid since 19 January 2004..
29. For all of the above reasons, because I am obliged to apply the law as recorded earlier (refer para 21), the decision under review must be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 8 February 2007
Date of Decision 19 February 2007
Solicitor for the Applicant Mrs Abblitt, applicant's mother
Departmental Advocate Tim De Uray
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