Paoli and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1703

Paoli and Secretary, Department of Social Services (Social services second review) [2021] AATA 1703 (11 June 2021)
Division:GENERAL DIVISION
File Number: 2020/2372
Re:Elisa Paoli
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:11 June 2021
Place:Melbourne

The Tribunal sets aside the Decision Under Review. In substitution, the Tribunal determines, under s 95(2) of the Social Security (Administration) Act 1999 (Cth), that the automatic cancellation provision under s 95(1), does not apply to Ms Paoli on and from 28 March 2018 in respect of her age pension. This means that the cancellation by Centrelink of her age pension on 27 June 2018, with effect from 28 March 2018, is taken not to have occurred.
...............[sgd]....................................
Member K. Parker
Catchwords
SOCIAL SECURITY – automatic cancellation of applicant’s age pension under s 95(1) of the Social Security (Administration) Act 1999 (Cth) – applicant failed to respond to information requests by Centrelink about her income stream – whether information requests “given” to the applicant – notices posted to applicant’s myGov account – applicant’s myGov account registered by her late partner without applicant’s knowledge – information requests not accessed by applicant or any other person – information requests not sent to applicant’s authorised nominee – whether “special circumstances” exist to enliven discretion under s 95(2) – whether discretion should be exercised to determine that the automatic cancellation provision does not apply – whether s 109 limits the effect of any favourable determination made under s 95(2) – decision under review set aside and substituted – cancellation of applicant’s age pension taken not to have occurred – applicant entitled to back payment of age pension
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Electronic Transactions Act 1999 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Birt and SDSS [2018] 2147
Botros and SDSS [2020] AATA 106
Guerin and SDFHCSIA [2012] AATA 201
McPherson and SDSS [2020] AATA 12
Pelyva and SDSS [2020] AATA 2418
Repatriation Commission v Gordon [1990] FCA 417
Winton and SDSS [2017] AATA 847
REASONS FOR DECISION
Member K. Parker
11 June 2021
INTRODUCTION

This application is about whether the Applicant’s, Ms Elisa Paoli’s, age pension under the Social Security Act 1991 (Cth) (the Act), should have been cancelled and whether she was entitled to receive a back payment for the age pension between the date of suspension of her pension on 28 March 2018 and 5 February 2019 (being the day before her age pension was recommenced on 6 February 2019 under a new claim). Ms Paoli was assisted by an Italian interpreter at the hearing of this application and represented by her daughter, Ms Carla Angele.
Ms Paoli’s age pension was suspended on 28 March 2018. Her age pension was then cancelled on 27 June 2018 as from 28 March 2018. The reason for the cancellation was that Ms Paoli had failed to respond to two successive written requests (issued on 31 January 2018 and 28 February 2018 by Centrelink[1]) for information to be provided by Ms Paoli in relation to her IOOF account-based income stream, product number 268512MTP01 (IOOF Income Stream). Ms Paoli also failed to respond to the suspension notice issued to her on 28 March 2018.
[1] Centrelink is a Commonwealth program within Services Australia responsible for administering social security payments under the Act.
The Tribunal will refer to the two information requests, suspension notice and cancellation notice collectively as the Four Notices.
Immediately upon Ms Paoli and her daughter realising that Ms Paoli’s age pension had ceased, Ms Paoli, by her nominee, made a new claim for the age pension on 6 February 2019 and provided to Centrelink the requested information about her IOOF Income Stream. Such information did not disentitle Ms Paoli to receive the age pension.
Centrelink immediately reinstated Ms Paoli’s age pension as from 6 February 2019. Ms Paoli sought review of the cancellation decision made on 27 June 2018, and retrospective payment of the age pension for the period of 28 March 2018 to 5 February 2019.
For the reasons set out in these Reasons for Decision, this Tribunal sets aside the Decision Under Review. In substitution, the Tribunal decides that its discretion has been enlivened under s 95(2) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), because it is satisfied that “special circumstances” existed in Ms Paoli’s case. The Tribunal considers it appropriate to exercise its discretion under this provision to make a determination that the automatic cancellation provision under s 95(1) does not apply to
Ms Paoli on and from 28 March 2018 in respect of her age pension. This means that the cancellation of Ms Paoli’s age pension on 28 March 2018 is taken not to have occurred, and that Ms Paoli is entitled to be paid the age pension for the period 28 March 2018 and 5 February 2019.
BACKGROUND
English is a second language for Ms Paoli. Ms Paoli said her late partner (of 25 years)[2] would liaise with Centrelink regarding their financial circumstances and he would also do her internet banking. Her partner passed away on 8 May 2017 after becoming very ill in December 2016.[3]
[2] Refer T-Documents page 12.
[3] Ibid.
Ms Paoli claimed that she did not receive the Four Notices. Ms Angele stated that Ms Paoli’s partner was the only person who had access to his email account or any of online portals that he had created for Ms Paoli.[4] Ms Angele stated that Ms Paoli was not aware of any online portals that her partner had registered on her behalf.[5]
[4] Ibid.
[5] Ibid.
The Centrelink records before the Tribunal show that on 2 and 4 September 2019, Ms Paoli’s nominee at that time, Mr Jim Maniatis from The Pension Professionals, claimed that Ms Paoli had not received the Four Notices. Mr Maniatis sent an email to Ms Angele on 4 September 2019.[6] Mr Maniatis informed Ms Angele that during a conversation with Centrelink on 2 September 2019, that a Centrelink representative told him the Four Notices had been posted to Ms Paoli’s home address. However, he stated in this letter that he was advised by Centrelink during a subsequent conversation on 4 September 2019, that the Four Notices were sent to Ms Paoli’s myGov account with an email notifying her that those letters had been uploaded to her myGov account.
[6] Refer Exhibit 11 of Ms Paoli’s Affidavit.
Ms Angele contends that the act of uploading letters to Ms Paoli’s myGov account did not guarantee that she would access those letters.[7] Ms Angele contends that the fact there was no reply to those letters on several occasions should have been an obvious flag (for Centrelink) that there was a possibility that the letters were not received. Ms Angele poses the rhetorical question: “Who in their right mind at 77 would not make contact with Centrelink if their pension was at risk?”[8] Following the cancellation of Ms Paoli’s age pension, she sought review in the Social Services and Child Support Division of the Administration Appeals Tribunal (AAT1). The AAT1 affirmed the cancellation decision (Decision Under Review).
[7] Refer T-Documents page 12.
[8] Ibid.
At the hearing of this application, the Tribunal directed that additional information be provided by the Respondent, Secretary, Department of Social Services (the Secretary), about Ms Paoli’s myGov account including information (such as metadata) about what documents had been uploaded during the relevant period, whether they had been accessed, and if so, on what date(s) and who had accessed them.
The Secretary’s representative attached myGov’s general terms of use to his email dated 9 March 2021. The Secretary also lodged a submission dated 9 March 2021 entitled “Tribunal’s Directions of 18 February 2021 - Secretary’s Response” and made the following contention:
3.The use of myGov as a means of providing notices to social security recipients is unexceptional and the legitimacy of its use [is] recognised in a number of Tribunal decisions referenced in the Secretary’s statement of facts and contentions at paragraph 68 to 70.
4. The Tribunal’s attention is taken to the Electronic Transactions Act 1999 (ETA) and in particular to s.14A which provides that for the purposes of a law of the Commonwealth, unless otherwise agreed, the time of receipt of an electronic communication is the time when the electronic communication becomes capable of being retrieved by the electronic addressee, and that for this purpose, unless otherwise agreed, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
5. It is noted that the ETA was applied in McPherson and SDSS [2020] AATA 12 (10 January 2020) and Winton and SDSS [2017} AATA 847 (15 May 2017).
6. Furthermore, s.161 of the Evidence Act 1995 provides that if a document purports to contain a record of an electronic communication it is presumed that electronic communication was sent and was received at the destination to which it was sent, and at the time it was sent. The Secretary notes that the Tribunal does have regard to provisions in the Evidence Act 1995 in its proceedings: see for example Pelyva and SDSS [2020] AATA 2418 (22 July 2020); Birt and SDSS [2018] 2147 (10 July 2018) and Guerin and SDFHCSIA [2012] AATA 201 (15 April 2012).
7. It is, of course, for the Applicant to adduce evidence to rebut this presumption. Merely asserting that it was not received is insufficient, it is contended, to rebut this presumption. In this respect the decision in Botros and SDSS [2020] AATA 106 is noted and in particular the reference to Spender J in Repatriation Commission v Gordon [1990] FCA 417, Spender J commented on the effect of section 29 of the AI Act:
50. In my opinion, in relation to the deeming provision in the section to the time at which service was effected, the qualification "until the contrary is proved" is not restricted to proving a time of delivery different from the ordinary time at which the letter would be delivered, but encompasses proof that the letter was never delivered at all. Of course, any such claims would have to be very carefully scrutinised and the mere claim of non-receipt would be likely to be insufficient. Non-receipt is not the same as non-delivery.
8. For the reasons expressed above the notices sent to the Applicant’s myGov account were given for the purposes of s. 109(2) of the Social Security (Administration) Act 1991.
On 24 March 2021, the Secretary’s representative wrote again to the Tribunal attaching a document showing a record of parts (but not all)[9] of Ms Paoli’s previous myGov account numbered XXX63. This document recorded that:
(a)Ms Paoli’s myGov account numbered XXX63 was created on 18 July 2012 and it was last accessed successfully on 6 March 2017;
(b)the inbox section revealed that the last notification was sent to an email address containing the name “Trevino” (full email address omitted for privacy reasons) on 7 December 2018;
(c)the Four Notices had been uploaded to Ms Paoli’s myGov account;
(d)no letters or other notices sent to Ms Paoli’s myGov account had been accessed since 8 December 2016; and
(e)this account was revoked on 20 August 2020, being the same day that a new account for Ms Paoli was subsequently created.
[9] The “history” and “profile” sections of Ms Paoli’s account were not provided to the Tribunal.
In this email to the Tribunal, the Secretary’s representative contended as follows about the myGov account records:[10]
…The attached documents also indicates (column headed notify user) that the user was notified on each occasion but that the myGov account was not accessed (column headed user read date) during the relevant period.
This perhaps goes some way to explain the failure of the Applicant to provide the requested financial information and her failure to respond to the suspension and cancellation notice.
I provided in my earlier response to the Direction, information about the conditions and terms of use of myGov accounts and the obligation on the user to open communications.
I note that I have previously contended that this application turns on the notices being GIVEN.
The evidence in that respect is in the Secretary’s contention conclusive and nothing turns on whether the myGov account was accessed by the user.
I have also previously contended the notices to the Applicant’s nominee set out in the T documents ( taken to have been given under the legislation previously cited) are taken to be notices to the Applicant and the nominee’s failure is taken to be the Applicant’s failure under the Administration Act, and with the same consequences.
Unfortunate as the outcome may be the Secretary’s contention is that the legislation does not allow for arrears to be paid due to its clear operation.
I do note that in the circumstances of this case the Applicant may wish to approach the Department in relation to a CDDA claim. That is a matter for the Applicant.
[10] The reference to CDDA claim is a reference to a claim under the Compensation for Detriment caused by Defective Administration (CDDA Scheme).
LEGISLATIVE FRAMEWORK
Section 95 of the Administration Act provides for the automatic cancellation of a social security payment, such as the age pension, if a person fails to comply with a request for certain information under s 68(2) of the Administration Act.
Section 95 is reproduced below:
Automatic cancellation--failure to provide statement under subsection 68(2)
(1) If:
(a) a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b) the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c) the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subsection 68(2) of the Act provides as follows:
(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.
ISSUES
To determine this application, the Tribunal must consider the following questions:
(a)Was Ms Paoli or any other authorised person, on her behalf, “given” notice under s 68(2) requiring her to provide information about her IOOF Income Stream?
(b)Did Ms Paoli’s failure to respond to any of the notices requesting the IOOF Income Stream information, trigger the automatic cancellation provision under s 95(1) of the Administration Act in respect of her age pension?
(c)Did “special circumstances” exist in this case to enliven the Tribunal’s discretion under s 95(2) of the Administration Act?
(d)If so, should the Tribunal exercise discretion under subsection 95(2) to make a determination that the automatic cancellation provision under subsection 95(1) of the Administration Act does not apply to Ms Paoli on and from a specified date (to be specified by the Tribunal)?
(e)If the Tribunal makes a determination under s 95(2) of the Administration Act which is favourable to Ms Paoli, will the date of effect of any such decision be limited by the operation of s 109 of Administration Act?
MS PAOLI’S CONTENTIONS AND EVIDENCE
Ms Paoli lodged an affidavit sworn by her on 10 December 2020 containing a set of exhibits. In her affidavit, she gave evidence, in summary, as follows:
(a)her late domestic partner passed away on 8 May 2017 and unbeknownst to Ms Paoli or anyone else, he had set up a MyGov account for her;
(b)she engaged Mr Maniatis to act as her appointed nominee for Centrelink services and her understanding was that all future correspondence between her and Centrelink would be through him;
(c)Mr Maniatis lodged her age pension claim on or about 12 August 2017 and it was granted on 6 September 2017;
(d)Centrelink had asserted that it had sent the Four Notices to Ms Paoli and to her nominee;
(e)Ms Paoli denies ever having received those notices when they were purportedly sent to her. She adamantly maintained this position throughout the hearing before this Tribunal;
(f)she did not realise that her age pension payments had ceased because of her ill health, grief for her late partner and complications with the negotiations with the executor of her late partner’s estate;
(g)her daughter discovered that her payments had ceased on 23 January 2019; and
(h)the circumstances described in her affidavit were extraordinary and that natural justice and procedural fairness required that her backdated pension payments be paid.
The first exhibit comprised an email sent by Mr Maniatis on 17 March 2020. In this email, Mr Maniatis stated, in effect, as follows:
(a)when Ms Paoli applied for the age pension on 11 August 2017, it was accompanied by a signed authority (for Mr Maniatis presumably) to act for Ms Paoli;
(b)when Mr Maniatis had contacted Centrelink on 5 September 2017, Centrelink had requested a copy of Ms Paoli’s late partner’s will. Mr Maniatis provided it to Centrelink on the same day by email. Centrelink informed Mr Maniatis that Centrelink had requested this information in a “computer letter” which had been sent. Mr Maniatis informed Centrelink that no such letter had been received. The day after, on 6 September 2017, Centrelink sent to Mr Maniatis a letter requesting a copy of Ms Paoli’s late partner’s will;
(c)Ms Paoli was subsequently granted the age pension. Mr Maniatis became aware of this after he checked Centrelink’s system, but no letter was given to him by Centrelink to advise that the pension had been granted;
(d)a new claim was made on behalf of Ms Paoli for the age pension on 6 February 2019;
(e)he had informed Centrelink’s authorised review officer (ARO) that the Four Notices were not received by Mr Maniatis as Ms Paoli’s nominee;
(f)Mr Maniatis requested that the ARO provide proof of the Notices being sent out. The ARO told him she would look into it and get back to him, but he did not do so;
(g)there were no Centrelink information request notices on The Pension Professionals files, which he said indicated they were not ever sent to nor received by his organisation; and
(h)The Pension Professionals had only received the letters sent directly to them by Centrelink after Centrelink had deleted Ms Paoli’s late partner’s email from her myGov site.
Exhibit 4 to Ms Paoli’s affidavit comprised an email from Ms Angele to Mr Maniatis dated 22 January 2019, attaching two bank statements to show that Ms Paoli’s fortnightly age pension had ceased in April 2018. Ms Angele states in this email the cessation of payments had occurred “without any notification” and that Ms Angele had only noticed it that night. Mr Maniatis replied on 24 January 2019 advising that they would need to lodge a new age pension claim for Ms Paoli requesting information from Ms Angele including information about the IOOF Income Stream (see Exhibit 5). Mr Maniatis did this, on Ms Paoli’s behalf, on 6 February 2019.

Exhibit 16e to Ms Paoli’s affidavit extracts a Centrelink record of a “customer contact” on 23 January 2019 where it was recorded that the “customer” advised that Ms Paoli had not received payment of her pension since April 2018. It was also recorded that, “…Unable to identify any outbound correspondence requesting customer to comply with February Income Stream review for 31.12.2017/01.01.2018”.
Ms Paoli tendered an affidavit sworn by Ms Angele on 11 December 2020 corroborating the evidence given by Ms Paoli in her affidavit, as summarised above.
SECRETARY’S CONTENTIONS AND EVIDENCE
The Secretary lodged a statement of facts, issues and contentions dated 15 October 2020 (Secretary’s SFIC) which the Tribunal has considered in making its decision, along with further written submissions made after the hearing of this application.
CONSIDERATION
Was Ms Paoli or any other authorised person, on her behalf, “given” notice under s 68(2) requiring her to provide information about her IOOF Income Stream?
The Secretary contends that it had “given” notice to Ms Paoli under s 68(2) of the Administration Act (and the suspension notice to follow), by uploading the first and second requests for information about her IOOF Income Stream onto her myGov account numbered XXX63 and by sending an email advising that such documents had been uploaded. The Secretary had previously contended that a hard copy of those three notices had also been sent to Mr Maniatis by ordinary post.
As for the latter contention, Ms Paoli lodged an email dated 4 September 2021 authored by Mr Maniatis wherein he adamantly refuted having ever received any of those notices, or the subsequent cancellation notice. He claimed that if his firm had done so, in line with usual practice, they would have been immediately actioned and provided to Ms Paoli. In the documents produced by the Secretary, the Tribunal was unable to identify definitive evidence showing that the hard copies of those notices had been posted to Mr Maniatis. The Tribunal considers that the prospect of not one, but four, different notices being sent on four different dates, all getting lost on their way to Mr Maniatis, is untenable. The Tribunal has considered the Centrelink records at T-Document T7 at page102 and T-Document T8 at pages 124 and 125 showing a list of correspondence, but when one looks closely at the information provided in this document, it is ambiguous and does not sufficiently demonstrate that those letters were sent by hard copy to Mr Maniatis by post. Instead, the Tribunal prefers the evidence as contained in Mr Maniatis’ email, as referred to above, and finds that Centrelink did not send the Four Notices to his firm. The Tribunal expects that this was the case because Ms Paoli’s late partner had registered for her to receive Centrelink correspondence through her myGov account instead.
As for the former contention, the Tribunal finds that the Four Notices were uploaded onto Ms Paoli’s myGov account numbered XXX63 based on the evidence referred to in paragraph [13] above. The Tribunal also finds, from this same evidence (see paragraph [13(a)], that neither Ms Paoli, nor anyone else on her behalf, had ever accessed any of the Four Notices on her myGov account numbered XXX63. The myGov records produced at the request of the Tribunal on 24 March 2021 prove that her myGov account had not been accessed at all after 6 March 2017. Ms Paoli’s late partner was the only person who has previously had access to Ms Paoli’s myGov account and to the email address to which the notifications were sent advising that documents had been uploaded by Centrelink onto this account. Sadly, he passed away in May 2017.
The question that arises is whether the uploading of the information request notices and the subsequent suspension notice onto Ms Paoli’s myGov account XXX63 and provision of notification of such to her late partner’s email address was sufficient to constitute notice having been “given” to Ms Paoli within the meaning of s 95(1)(a) of the Administration Act.
Section 5 of the Administration Act deals with the manner of giving notice. This section provides as follows:
(1) If a provision of the social security law requires that a written notice be given to a person, it is sufficient compliance with that provision if the notice is given in a manner approved by the Secretary.
(2) Nothing in subsection (1) prevents a notice being given in accordance with section 28A of the Acts Interpretation Act 1901.
It was not agitated before the Tribunal in this application whether there were any documents evidencing approval by the Secretary as to the way written notice given under a provision of the social security law is to be “given”. The discussion in the Secretary’s SFIC at paragraph [69] citing a section of the decision of the Administrative Appeals Tribunal in McPherson and SDSS [2020] AATA 12, would suggest there has been no such approval given. Regardless of whether this is correct, subsection 5(2) preserves the effect of s 28A of the Acts Interpretation Act 1901 (Cth) (the AI Act).
Section 28A of the AI Act provides as follows:
Service of documents
(1)     For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
(a)      on a natural person:
(i)       by delivering it to the person personally; or
(ii)     by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate--…
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2)      Nothing in subsection (1):
(a)     affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b)     affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Section 29 of the AI Act deals with service in the case of service by post, but this is not relevant in the present case, because the Tribunal has found that the Four Notices were sent by electronic means.[11]
[11] Section 29 of the AI Act provides: Meaning of service by post
(1)Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
Section 160, read in conjunction with s 182, of the Evidence Act 1995 (Cth) provides that a postal article sent by a Commonwealth agency (such as Centrelink) sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory, is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been received at that address on the seventh working day after having been posted. Again, this provision is not relevant in this case, at the least, because the Tribunal has found that the Four Notices were sent by electronic means.
Turning to the Electronic Transactions Act 1999 (Cth) (the ET Act), s 6 provides that it binds the Crown in all its capacities, subject to exemptions as prescribed by regulation.[12] Section 8 provides, for the purposes of a law of the Commonwealth, that a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications. Subsection 9(1) of the ET Act provides that where a person if required to “give” information in writing under a law of the Commonwealth, they may do so by means of electronic communication where at the time the information was given, it was reasonable to expect that the information would be readily accessible as to be useable for subsequent reference (see subsection (a)). It is also necessary for that person to consent to the information being given by way of electronic communication (see subsection (b)). Section 5 of the ET Act defines “consent” as including “consent that can reasonably be inferred from the conduct of the person concerned”.
[12] Refer s 7A and s 7B of the ET Act.
This brings the Tribunal to consider the terms and conditions of use for myGov accounts. The Secretary produced a copy of those terms and conditions (version 2020-1) to the Tribunal on 9 March 2021. As relevant, those terms and conditions state as follows:
1. Why terms of use are important
By having a myGov account, you agree to be bound by these terms of use.
Importantly, this means making sure you know and follow your responsibilities.
2. Changes to terms of use
When we make changes to these terms of sue, you will need to accept the new terms of use, if you want to keep using your myGov account.
These new terms of use replace any myGov terms of use you may have previously accepted.
5. Your responsibilities
…
Provide correct and up to date information to myGov
You are responsible for making sure your personal details (such as your name, contact details etc.) are correct and up to date in myGov. If your details change, you should sign-in to myGov and update your details.
…
Keep your myGov account safe
You are responsible for your myGov account and making sure only you can access it.
You must not allow someone else to sign-in or use your myGov account.
You must keep your myGov password, myGov PIN and your selected secret questions and answers safe. Do not share these details with anyone else.
If you do not take reasonable precautions to keep your myGov details safe and someone is able to sign into your account, or if you give someone your details so they can sign into your account, you are responsible for everything that person does with your account.
…
Do not access another person’s myGov account
You are not allowed to access another person’s myGov account.
myGov Inbox and notification settings
You need to keep your preference settings for myGov Inbox message notifications up to date, so you know when you have messages from Member Services to read. You can choose to receive myGov Inbox message notifications via SMS or by email.
You are responsible for reading all your notification and myGov messages in a timely manner.
…
Closure of inactive accounts
In some cases, we may also close accounts that have not been used after a certain amount of time. We may do so when:
…
·you have linked your myGov account to a Member Service and have not signed in to myGov for 24 months
…
7. myGov Inbox
By creating a myGov account, you are agreeing to receive all correspondence a Member Service decides it wants to send to you via the myGov Inbox.
8. What we are responsible for
We are responsible for:
…
·taking reasonable care to provide you with information about the myGov service.
9. What we are not responsible for
We are not responsible for:
·ensuring you have continuous access to myGov;
·…
·any Loss as a result of you not accessing a myGov Inbox message
A “Member Service” is defined in those terms and conditions as “an organisation, or part of an organisation, that provides online services to you, when you “link” them to your myGov account”.[13]
[13] Refer Preface to myGov terms and condition.
Ms Paoli’s evidence is that she was not aware, until the proceedings before the Administrative Appeals Tribunal, that her late partner had established a myGov account for her. The Tribunal regarded Ms Paoli as a credible witness and accepts her evidence in this regard. This would raise an issue as to whether she had ever consented to the myGov terms and conditions or whether she could be said to have consented to information as provided by Centrelink being given to her by way of electronic communication, for the purpose of determining whether the requirement under subsection 9(1)(b) of the ET Act had been met.
However, for Ms Paoli’s late husband to have established a myGov account, he needed to have within his knowledge identifying personal information for Ms Paoli, including her individual Centrelink number, to register a myGov account in her name. The Tribunal can reasonably infer that Ms Paoli provided her late partner with that information, by the fact that such information was used by her late partner to register a myGov account for her. If her late partner did not possess such information, he would have been unable to do so. By doing so, and bearing in mind the definition of consent as provided for in s 5 of the ET Act, the Tribunal finds that the provision of Ms Paoli to her late partner of her identifying personal information, enabling him to create her myGov account under the myGov terms and conditions which applied to such an account, constitutes the provision of consent by Ms Paoli to receive information from Centrelink by electronic means under subsection 9(1)(b) of the ET Act.
The Tribunal also finds that the other requirement under subsection 9(1)(c) of the ET Act was met because it is reasonable to expect that the Centrelink information would be “readily accessible as to be useable for subsequent reference” by Ms Paoli. The actions of her late partner, in establishing a myGov account for her, demonstrates that her late partner, on

Ms Paoli’s behalf, had the technological capacity to receive and use information electronically. myGov being an “opt in” service, required the user to indicate a preference for correspondence to be received through this portal (see clause 7 of the myGov terms and conditions). By Ms Paoli providing her late husband with her personal identifying information and his subsequent actions in establishing this account, the Tribunal considers that Ms Paoli has, albeit indirectly, passed on her consent to receiving correspondence electronically from Centrelink though the myGov portal.
Section 14 of the ET Act provides that the time of dispatch of an electronic communication, for the purposes of a law of the Commonwealth, depends on whether the electronic communication leaves an information system under the control of the originator (or party on behalf of the originator) (Originator) of the communication. If it does, then the time of dispatch is when the electronic communication leaves the control of the Originator. If not, (for instance, where parties exchange electronic communications through the same information system), the time of dispatch is when the electronic communication is received by the addressee. The time of receipt is defined in s 14A of the ET Act. Section 14A provides that, unless otherwise agreed, the time of receipt is when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. Subsection 14A(2) provides that it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
In Ms Paoli’s case, the Tribunal finds that the Four Notices did “not leave the control of” the Originator as they were transmitted within the myGov information system, by being uploaded onto Ms Paoli’s myGov account. The Tribunal has found that they were not sent in any other way, specifically, that they were not sent by post to Mr Maniatis.
However, the Tribunal finds that those notices became “capable of being retrieved” at the time they were uploaded onto Ms Paoli’s myGov account. The Tribunal finds that the four dates upon which those notices were uploaded, were the respective times at which they were “received” and by extension through the application of s 14 of the ET, the respective times that they were “dispatched”.
On the basis of those findings, the Tribunal concludes that Ms Paoli was “given” notice of the Centrelink requests for information concerning her IOOF Income Stream, and subsequent suspension notice, at the time those notices were dispatched to her, when each notice was uploaded onto Ms Paoli’s myGov account. The Tribunal makes this finding despite being satisfied that Ms Paoli was unaware of the steps her late partner had taken to establish a myGov account for her and to indicate a preference to receive correspondence through this portal.
Did Ms Paoli’s failure to respond to any of the notices requesting the IOOF Income Stream information trigger the automatic cancellation provision under s 95(1) of the Administration Act in respect of her age pension?
The Tribunal considers that Ms Paoli’s failure to respond to Centrelink’s successive notices requesting the IOOF Income Stream information, triggered the automatic cancellation provision under s 95(1) of the Administration Act in respect of her age pension.
Determination under subsection 95(2)
Next, the Tribunal will consider whether discretion should be exercised under subsection 95(2) of the Administration Act to make a determination that subsection 95(1) does not apply to Ms Paoli on and from a date to be specified by the Tribunal. This will depend on whether such discretion is enlivened after a consideration of whether “special circumstances” existed in Ms Paoli’s case, and if so, whether it is “appropriate” for the Tribunal to exercise such discretion.
Did “special circumstances” exist in this case within the meaning of subsection 95(2) of the Administration Act?
After a careful consideration of all the circumstances of Ms Paoli’s case, the Tribunal is satisfied that “special circumstances” exist which enliven the Tribunal’s discretion under s 95(2) of the Administration Act. The Tribunal considers that the following circumstances amounted to there being “special circumstances” in Ms Paoli’s case:
(a)Ms Paoli is a person of an advanced age having been born in 1941 and the Tribunal accepts that she was not capable of using a computer to manage her affairs due to her limited educational background and level of computer literacy. Ms Paoli immigrated to Australia and her spoken English was poor, as observed by the Tribunal at the hearing;
(b)according to the unchallenged reports of Ms Angele, which the Tribunal accepts, Ms Paoli’s personal circumstances were unchanged leading up to the date of the first information request from Centrelink. Specifically, there was no significant change in the level of income from her IOOF Income Stream account during 2017 and subsequently. This is also reflected by the fact that as soon as Ms Paoli realised her age pension had ceased and reapplied for it, it was immediately recommenced;
(c)as from the date of the suspension decision, Ms Paoli met the eligibility requirements to be paid the age pension. This was not disputed by the Secretary who confirmed at the hearing that this was the case;
(d)the Tribunal has found that Ms Paoli was unaware that her partner had taken the step of registering a myGov account for her even though she had enabled him to do so, by providing him with her personal identifying information. This was not a fact which was disputed by the Secretary;
(e)Ms Paoli, nor any other person, had accessed the two information requests from Centrelink, nor the suspension decision, at the time after they were given to her by uploading them into her myGov account inbox;
(f)Ms Paoli had engaged Mr Maniatis to act as her appointed nominee for Centrelink services and she understood that correspondence between her and Centrelink would be through Mr Maniatis. The Tribunal considers this a reasonable assumption for Ms Paoli to have made;
(g)no attempt had been made by Centrelink to check on the myGov system whether she had accessed the suspension notice in her myGov inbox or to contact Ms Paoli by telephone to discuss Centrelink’s intention to cancel her age pension, prior to that decision having been taken. The Tribunal notes that Ms Paoli’s myGov account had been inactive for a significant period of 15 months, prior to the date of the cancellation decision. The Tribunal regards that this should have been considered by Centrelink at the time of deciding whether to cancel her age pension, and should have prompted a direct enquiry to have been made with either Ms Paoli or her Centrelink nominee prior to such cancellation decision having been made;
(h)the Tribunal has found (see paragraph [26] of these Reasons for Decision) that the two information requests and suspension notice were not sent by ordinary post or emailed to Ms Paoli’s Centrelink nominee, Mr Maniatis. The Tribunal accepts Mr Maniatis’ evidence that had those notices been sent to him, they would have been actioned immediately and brought to the attention of Ms Paoli and Ms Angele;
(i)Ms Paoli’s late partner died in May 2017 (and had been “very ill” for a period of six months prior). He was no longer able to access his emails or Ms Paoli’s myGov inbox (or to inform her that he had established a myGov account on her behalf); and
(j)the Tribunal accepts that it did not otherwise come to the attention of Ms Paoli that her age pension payments had been suspended because she did not have visibility over the payments being made into her bank account. In that regard, the Tribunal accepts Ms Paoli’s evidence that her late partner, prior to his death, had access to and managed her online bank accounts on her behalf and that she was not receiving paper statements from the bank. Between March 2018 and June 2018, between the dates of the successive suspension and cancellation notices, the Tribunal considers that it is understandable that Ms Paoli was not closely monitoring her personal finances at that time, as she was grieving her late partner’s death and was faced with challenges in respect of negotiating with the executor of the estate in respect of the house she was residing in.
If so, should the Tribunal exercise its discretion under subsection 95(2) to determine that subsection 95(1) of the Administration Act does not apply to Ms Paoli and specify a date from which this determination applies?

For the reasons set out in subparagraphs 53(a) to (i) of these Reasons for Decision, the Tribunal considers that it is appropriate in the circumstances to exercise discretion to determine under subsection 95(2) of the Administration Act that subsection 95(1) does not apply to Ms Paoli, and that such determination by the Tribunal applies as from the date of suspension of her age pension on 28 March 2017.
If the Tribunal makes a determination under s 95(2) which is favourable to Ms Paoli, will the date of effect of any such decision be limited by the operation of s 109 of Administration Act?
Prima facie, s 109 of the Administration Act imposes a limitation on the date of effect of a favourable determination resulting from a review.
Subsections 109(1), (2) and (3) of the Administration Act provide as follows:
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.
Provided that notice is “given” to the person of the original decision, if a person seeks review within 13 weeks of the date of the original decision, the date of effect of any subsequent favourable determination by the Secretary (and in turn, by the Tribunal under review), will be the date of the original decision. However, if the person seeks review more than 13 weeks after the original decision, the date of effect of any favourable will be the date upon which they applied for review of the original decision.
Ms Angele, on Ms Paoli’s behalf, first contacted Centrelink after the cessation of Ms Paoli’s age pension by telephone on 6 February 2019. On this date, Ms Angele, on Paoli’s behalf, sought review of the cancellation decision and consequently, recommencement of Ms Paoli’s aged pension. The cancellation decision was made on 27 June 2018. The 13-week period to follow on from this date, ended on 26 September 2018. This means that Ms Paoli did not seek review until 13 weeks had elapsed from the date of the cancellation decision and that prima facie, s 109(2) applies.
The Secretary contends that s 109 of the Administration Act applies and operates to limit the date of effect of any favourable determination upon review in this application. In other words, the Secretary contends that even if her application was successful, s 109(2) would preclude any payment of arrears of the age pension to Ms Paoli for any period prior to 6 February 2019.
Firstly, the application of s 109 depends on whether Ms Paoli was “given” the original decision. For the reasons set out in paragraphs [25] to [43], the Tribunal has found that Ms Paoli was “given” the cancellation decision electronically, at the time it was transmitted to or uploaded into her myGov Inbox on 27 June 2018.
Secondly, the Tribunal must consider a question of statutory interpretation arising in relation to how the operation of s 109(2) and s 95(2) of the Administration Act should intersect. At first glance, those provisions do not sit easily together because the former provision would appear to limit the date of effect of a favourable review determination to a particular date, while the latter provision appears to confer a wide discretion upon the Tribunal to specify the date upon which it may determine that the automatic cancellation provision under

s 95(1) does not apply to a person. The Tribunal must consider whether those provisions should be interpreted in such a way that s 109(2) will operate to limit (or not) the effect of a determination made under s 95(2).
The Tribunal considers that the broad discretion conferred by s 95(1) is not limited by s 109(2) for the following reasons.
Firstly, one needs to consider the character of the determination that the Tribunal is empowered to make under s 95(2) of the Administration Act. This provision stands as an exemption to the automatic cancellation of a person’s age pension where they have failed to respond to information requests under s 68 of the Administration Act. The Tribunal has the power to exempt s 95(1) from applying to a person if it is satisfied that “special circumstances” exist and that it is appropriate to do so. But this provision goes further and also confers power on the Tribunal to specify the date upon which this exemption is to operate, by permitting the Tribunal to specify that the automatic cancellation provision does not apply to a person “on and from a day specified in the determination”. There are no words within s 95(2) which qualify the power of the Tribunal to specify the date on and from which s 95(1) will not apply to the person. For instance, s 95(2) is not, but could have been, prefaced with the words “Subject to s 109…”.
Secondly, one needs to consider the determination being made is such that the automatic cancellation is taken not to have occurred. This is black and white. If the favourable determination is made and the otherwise automatic cancellation is taken not to have occurred, that would seem to be the end of the matter, in that it is not then necessary to determine a date of effect of the determination. In the Tribunal’s view, this means that s 109 does not come into play if the “favourable determination” being made is a determination under s 95(2), displacing entirely the basis upon which the age pension was automatically cancelled.
Thirdly, where there is ambiguity arising in the interpretation of beneficial legislation, such as the Act and the Administration Act, an interpretation should be afforded to the legislation that favours the person who is seeking to benefit under such legislation. For this reason, the Tribunal considers that it should favour the interpretation of these two provisions as set out in the above two paragraphs, when seeking to reconcile the effect of them on Ms Paoli.
In this case, the Tribunal has determined that the specified date (from which s 95(1) does not apply to Ms Paoli) is the date of suspension of her age pension on 28 March 2018. This has the result of rendering the cancellation decision as not having been made on 27 June 2018. Based on the Tribunal’s interpretation of s 95(2) and s 109, the Tribunal’s determination under s 95(2) is not impacted or limited by the operation of s 109.
CONCLUSION
The Tribunal concludes that Ms Paoli was “given” notice of the Four Notices. Consequently, the automatic cancellation provision under s 95(1) of the Administration Act applied to Ms Paoli as she was “given” notice of the two information requests concerning her IOOF Income Stream.
However, the Tribunal’s discretion has been enlivened under s 95(2) of the Administration Act because the Tribunal is satisfied that “special circumstances” existed in Ms Paoli’s case. The Tribunal considers it appropriate to exercise its discretion under this provision to make a determination that the automatic cancellation provision under s 95(1) does not apply to Ms Paoli on and from 28 March 2018 in respect of her age pension. The effect of such determination by this Tribunal is that her age pension is taken not to have been automatically cancelled on 27 June 2018 thereby entitling Ms Paoli to receive back payment of the age pension from 28 March 2018 to 5 February 2019. Accordingly, the Tribunal sets aside the Decision Under Review and makes a decision to this effect.

62.

63. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

..................[sgd].......................
Associate
Dated: 11 June 2021

Date of hearing:

Date last submission lodged:

16 February 2021

24 March 2021

Applicant: By telephone

Solicitor for Respondent:
Mr Brian Sparkes, Services Australia