Pancharutnam Krishnamoorthy and Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 518

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0560

GENERAL ADMINISTRATIVE DIVISION		)
Re		Pancharutnam Krishnamoorthy

Applicant

And Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date12 July 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – disability support pension – maximum portability period – favourable determination takes effect on the day on which the application for review is made – notice of decision sent to last known address taken to have been given – person with more than one address – address to which mail requested to be sent is last known address

RELEVANT ACTS

Social Security Act 1991: ss 1217, 1218AA, 1218C

Social Security (Administration) Act 1999: ss 109, 237

CITATIONS

Reasons for Decision, SSAT, Appeal number S236313, 18 January 2010 (unpublished)

REASONS FOR DECISION

12 July 2010 Senior Member A K Britton

1.Dr Pancharutnam Krishnamoorthy applied to the Administrative Appeals Tribunal for review of a decision made by the respondent Secretary, and affirmed on review by the Social Security Appeals Tribunal, not to pay him disability support pension for the period 10 June 2007 to 13 April 2009 while he was in India.  It is common ground that but for his absence from Australia, Dr Krishnamoorthy would have been eligible to receive the disability support pension (“the DSP”) throughout that period.

2.Under the Social Security Act 1991 (Cth) a person in receipt of the DSP is entitled to continue to receive payments while continuously absent from Australia for a period of up to 13 weeks (“the maximum portability period”): s 1217. The Secretary or Tribunal acting as substitute decision-maker has the power to extend the portability period beyond 13 weeks if certain criteria are met: ss 1218AA and 1218C. For present purposes I will assume rather than decide that the discretionary power to extend the maximum portability period can and should be exercised, and will consider whether s 109 of the Social Security (Administration) Act1999 (Cth) (“the Administration Act”) prevents backdating of the DSP in this case.

Background

3.Dr Krishnamoorthy left for India on 11 March 2007 and did not return until 11 April 2009.

4.Dr Krishnamoorthy continued to be paid DSP for the first 13 weeks after leaving Australia, that is, to 9 June 2007.

5.On 18 May 2007, Centrelink wrote to Dr Krishnamoorthy and notified him that his pension was suspended because he had been absent from Australia for more than 13 weeks.  On 27 August 2007 Centrelink again wrote to Dr Krishnamoorthy and advised that his DSP had been cancelled because he was still overseas.  Both letters were sent to an address in Lakemba provided by Dr Krishnamoorthy to Centrelink. He had been living at that address for some months before he departed for India.  All Centrelink correspondence had been sent to that address throughout that period (“the Lakemba address”).

6.Shortly after his return to Australia in April 2009, Dr Krishnamoorthy contacted Centrelink and made a claim for DSP backdated to when the decision to cancel his pension took effect, i.e., 10 June 2007.  On 19 June 2009 Centrelink notified Dr Krishnamoorthy that he had been granted DSP, payable from 14 April 2009 — the date he contacted Centrelink about his claim for DSP — but that his claim for payment to be backdated to June 2007 had been refused.  On review, that decision was affirmed by both an Authorised Review Officer and the SSAT.

Statutory Framework

7.Two provisions are relevant to the question of whether Dr Krishnamoorthy’s pension can be backdated — ss 109 and 237 of the Administration Act.

8.Section 109(2) deals with the date of effect of a “favourable determination” resulting from review where notice of the decision is given and the application for review is made more than 13 weeks after notice was given:

Date of effect of favourable determination resulting from review

(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;

(3)the favourable determination takes effect on the day on which the application for review was made.

9.Section 237 of the Administration Act deals with the issue of notices and provides:

(1)If notice of a decision under the social security law is:

(a)delivered to a person personally; or

(b)left at the address of the place of residence or business of the person last known to the Secretary; or

(c)sent by prepaid post to the postal address of the person last known to the Secretary;

(i)     notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

(2)Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.

(3)If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.

Address “Last Known” to the Secretary

10.It is not in issue that Dr Krishnamoorthy contacted Centrelink before his departure for India and advised that he would be leaving for India in early March 2007. Included in the section 37 [Administrative Appeals Tribunal Act 1975] documents are a number of electronic file notes made by Centrelink officers detailing the information provided by Dr Krishnamoorthy.  Four were apparently made on 1 March 2007 following phone conversations with  Dr Krishnamoorthy.  It is not clear whether a separate record was generated for each call or whether multiple records were made following each call.  The records indicate, and Dr Krishnamoorthy confirmed in these proceedings, that he spoke to two different officers before his departure for India.

11.One file note recorded, among other things:

A/n plans to leave Australia on 2 March 2007

A/n will return before 1 June 2007 (13 weeks)

DSP is portable until at least 1 June 2007

Overseas address: India

Overseas phone no: Unknown.

Full details of overseas address were not recorded

Customer asked for their mail to be sent to their Australian address.

12.A further note made by the same officer recorded that Dr Krishnamoorthy had given permission for his wife to enquire about his DSP payments for an indefinite period commencing 2 March 2007.  The note recorded her Sydney address.

13.A further note also made on 1 March 2007 by a different officer recorded, among other things:

A/n plans to leave Australia on 7 March 2007

A/n will return before 6 June 2007 (13 weeks)

DSP is portable until at least 1 June 2007

Overseas address: [details deleted by Tribunal] Tamil Nadu India

Customer asked for their mail to be sent to their Australian address.

14.Centrelink records indicate that on 2 March 2007 Dr Krishnamoorthy again contacted Centrelink to advise of a revised departure date — 11 March 2007.  The file note of that conversation records two contact phone numbers in India provided by Dr Krishnamoorthy.

15.A further note apparently made on 11 March 2007 recorded the Tamil Nadu address as a “temporary address” and that mail was not to be sent to that address.

16.In these proceedings Dr Krishnamoorthy testified that before he left for India he advised Centrelink that his address for the foreseeable future would be his father’s address in Tamil Nadu, India.  He denied telling Centrelink that he intended to return to Australia within 13 weeks but said that his wife wanted him to return and had purchased a return ticket on his behalf. He also denied requesting Centrelink to send mail to his Lakemba address while he was in India.  He claimed that it was implausible that he would have done so because when he left Australia, he had no intention of returning to that address. He thought the reason Centrelink officers had recorded otherwise was because of a “lack of communication” and possibly “discrimination”. 

17.It seems to me more probable than not that Dr Krishnamoorthy advised Centrelink that he intended to return to Australia sometime before June 2007.  That is consistent with the electronic file notes made by two Centrelink officers and the evidence given by Dr Krishnamoorthy to the SSAT (see Reasons for Decision, SSAT, Appeal number S236313, 18 January 2010 (unpublished) at [7]).  The more difficult and relevant question is whether Dr Krishnamoorthy told Centrelink that all correspondence should continue to be sent to his Lakemba address and not his Indian address.  While plain that Dr Krishnamoorthy provided Centrelink with his contact details in India, I am not satisfied that, as claimed, he instructed Centrelink that all correspondence be sent to that address.  That claim conflicts with the contemporary file notes made by two Centrelink officers and is unsupported.

18.Section 237(1) of the Administration Act refers to “the address of the place of residence or business of the person last known to the Secretary” not the address where the person requested their mail to be sent. In this case there were two addresses “known to the Secretary”. The use of the definite article “the” together with the use of the singular “address” indicates that there can not be more than one “last known address”. It seems to me that in circumstances such as these where a person has provided Centrelink with more than one address and requested that mail be sent to a particular address, that that address constitutes the address “last known to the Secretary” for the purpose of s 237(1) of the Administration Act. Applying that reasoning, Dr Krishnamoorthy’s Lakemba address constitutes the address “last known to the Secretary”.

Notice Taken to Have Been Given to Dr Krishnamoorthy

19.Centrelink’s records indicate that notices of the decision to suspend and later cancel Dr Krishnamoorthy’s DSP were sent to his Lakemba address by prepaid post on 18 May 2007 and 27 August 2007, respectively. It follows that by the operation of s 237 of the Administration Act, Dr Krishnamoorthy is taken to have been given notice of the decision to cancel his DSP on or about 31 August 2007.

Date of Effect of Decision

20.There is no evidence and nor is it suggested that Dr Krishnamoorthy sought review of the decision to cancel his DSP before his return from India in April 2009. Therefore it follows that even if a “favourable decision” [to Dr Krishnamoorthy] were to be made, that is, to extend the portability period beyond 13 weeks, by the operation of s 109(3) of the Administration Act it could not take effect until 14 April 2009 — the date Dr Krishnamoorthy sought review of the decision to cancel his DSP. Accordingly the decision made by the Authorised Review Officer not to pay Dr Krishnamoorthy DSP for the period 10 June 2007 to 13 April 2007 was the correct decision.

21.For these reasons I must affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

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

Date of Hearing  6 July 2010
Date of Decision  12 July 2010
Representative for the Applicant    Self-represented
Solicitor for the Respondent         Ms B Griffin, AGS