Parker and Secretary, Department of Family and Community Services

[2004] AATA 1278

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/405

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LYNDA PARKER

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr K S Levy, Member

Date2 December 2004  

PlaceBrisbane

Decision

The Tribunal determines that –

(a)      the decision under review is to be set aside to the extent that rent            assistance is not payable from a date earlier than 9 September            2003;

(b)      arrears of rent assistance are to be paid to the applicant from            29 May 2003 until 2 September 2003.

...................[Sgd]......................

K S Levy
  Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Application to review starting date of reinstatement of rent assistance – Applicant did not receive request for verification of circumstances – Decision under review set aside

Social Security Act 1991 ss 23, 1061Q
Social Security (Administration) Act 1999 109, 237
Acts Interpretation Act 1901 ss 29
Evidence Act 1995 ss 160

Muller v Dalgety (1909) 9 CLR 693
Repatriation Commission v Gordon (1991) 100 ALR 255
Secretary, Department of Social Security v Sevel (1992) 110 ALR 627

REASONS FOR DECISION

2 December 2004 Dr K S Levy, Member         

1.      This is an appeal against a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 28 April 2004.  That decision determined that arrears of rent assistance were payable from 9 September 2003 and not from 29 May 2003, as requested by the applicant.

Hearing

2.      The matter was heard on 29 October 2004.  The applicant appeared in person and was represented by her parents, Mrs L Parker and Mr B Parker.  The respondent was represented by Ms J Dwyer, Departmental Advocate.

3.      The following documents admitted into evidence –

Exhibit 1Statement by Bill Dwyer, Caretaker of Unit Complex dated 30 July 2004

Exhibit 2Affidavit by John Gleadhill dated 8 September 2004

Exhibit 3Respondent’s Statement of Facts and Contentions dated 20 August 2004

Exhibit 4Respondent’s Additional Statement of Facts and Contentions dated 7 October 2004

Exhibit 5“T” Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 6Request for Assistance by Lynda Parker dated 13 August 2004

4.      In determining this matter, the Tribunal has fully considered all of the written and oral submissions of both parties in this matter.

Issues

5.      The issue for determination is whether rent assistance is payable prior to 9 September 2003.

Background to the Application

6.      Ms Parker was granted a disability support pension (DSP) including rent assistance by the Department of Family and Community Services.  As part of its policy of regular review to ensure circumstances of recipients remain extant, the Department sent a request from Centrelink on 15 May 2003 seeking verification of Ms Parker’s present circumstances in relation to her accommodation.  That request requested a response by 29 May 2003.  When a response was not received by the nominated date, rent assistance ceased to be paid from 29 May 2003.  A letter of the same date was forwarded to Ms Parker’s address which advised of cancellation of the rent assistance payments.

7.      In addition to the issue of rent assistance, Ms Parker’s rate of DSP was increased by the rate of the consumer price index from 9 September 2003 as part of the regular review of Centrelink entitlements.  While payment of that increase was effective from that date, she was not sent a letter to advise her of that change. This was relevant in the decision of the SSAT to pay arrears of rent assistance to the applicant from 9 December 2003.

8.      Ms Parker discovered in early December that there were insufficient funds in her account to pay all her commitments.  She discussed this with her mother, Mrs Lois Parker on 9 December 2003, who ascertained that the amount being paid into her bank account had been reduced for some time.  On becoming aware of this situation, her mother then, on 9 December 2003, rang Centrelink and sought clarification.  The required documentation and information was provided to Centrelink the next day, 10 December 2003 and was lodged by Mrs Parker.  Centrelink arranged for the recommencement of the rental assistance payments as from that date.

9.      The applicant, Ms Lynda Parker, suffers from epilepsy.  This involves various neurological disturbances which prevent normal living in a number of ways. Her mother described the practical implications of her daughter’s disability, in that she had poor memory retention and in particular, her numeracy skills are at a very low standard.  Her father emphasised that this had been the case even when she was at school and was a consequence of her disability.  Mrs Parker explained that her daughter (the applicant) cannot comprehend many documents, especially legal documents. 

10.     The Tribunal was informed that the basic disability allowance Miss Parker receives is $470 per fortnight and the rental assistance is an additional $95 per fortnight.  Therefore, if the rental assistance is not received, the payment of that amount towards rent out of her basic disability allowance would amount to 20% of her entitlements. 

Applicant’s Case

11.     The applicant indicated that she was appealing the decision not to pay arrears of rent assistance to her, as the letter initially seeking a review of her status was never received.  The applicant appealed the decision to reinstate this allowance only on 10 December 2003.  An Authorised Review Officer (ARO) reviewed this matter and affirmed the original decision.  The ARO made enquiries about the postal collection and delivery systems with Australia Post.  That officer was satisfied that it was most unlikely that the letter could have been delivered to the wrong address.

Respondent’s Case

12. The respondent argued that when no response was received to Centrelink’s letter of 15 May 2003, the Department was entitled to cancel the allowance. This may be reviewed and, if successful, the decision to reinstate an allowance is provided for by section 109 of the Social Security (Administration) Act 1999.  The date of the reinstatement depends on whether a request for review is received more than 13 weeks after the original due date.  It was also noted that the review undertaken by the Department is done on a six monthly basis.  It is a policy decision based on good administration, rather than a statutory requirement of the Department.

13. The respondent argued that section 237 of the Social Security (Administration) Act 1991 deems notice to be given at the time the letter would have been delivered in the ordinary course of post “unless the contrary is proved” [emphasis added].

14. The Secretary also submitted that the applicant must show that the letter dated 15 May 2003 was not actually delivered. It was argued that it is not sufficient for the applicant to merely show that she did not receive the notice but rather it was not delivered on the balance of probabilities. On that basis, the respondent stated that section 237 should apply in preference to section 23(12) of the Social Security Act 1991.

Legislative Framework

15.     The following legislative provisions are relevant.

§  Social Security (Administration) Act 1999

“Date of effect of favourable determination resulting from review

109.(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.

109.(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.

109.(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.

….

Notice of decisions

237.(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;

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

237.(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.

237.(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.

237.(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).”

§  Social Security Act 1991

“General definitions

23.(12)  If:

(a)section 237 of the Administration Act applies to a notice of a decision under this Act; or

(b)sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;

section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.

…..

Qualification for telephone allowance

1061Q.(1)  A person is qualified for a telephone allowance if:

(a)       the person is receiving a social security pension; and:

(c)       the person is a telephone subscriber.

…..

1061Q.(3)  A person is qualified for a telephone allowance if:

(a)the person is receiving widow allowance, newstart allowance, sickness allowance, partner allowance, benefit PP (partnered) or special benefit; and

(b)the person has been receiving income support payments in respect of a continuous period of at least 9 months (whether or not the kind of payment received has changed over the period and whether the period or any part of it occurred before or after the commencement of this paragraph); and

Note 1:     For income support payment see subsection 23(1).

Note 2:     For the determination of the continuous period in respect of which a person received income support payments see section 38B.

(c)       the person has turned 60; and

(d)       the person is a telephone subscriber.”

§  Acts Interpretation Act 1901

“Meaning of service by post

29. (1) Where an Act authorizes 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 unless the contrary intention appears 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.”

§  Evidence Act 1995

“160     Postal articles

(1)       It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2)       This section does not apply if:

(a)       the proceeding relates to a contract; and

(b)       all the parties to the proceeding are parties to the contract; and

(c)       subsection (1) is inconsistent with a term of the contract.

(3)       In this section:

working day means a day that is not:

(a)       a Saturday or a Sunday; or

(b)a public holiday or a bank holiday in the place to which the postal article was addressed.

Note:Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.”

Consideration

16.     Evidence was presented by Mr Gleadhill, Liaison Officer with Centrelink.  His statement provided convincing evidence that the letter dated 15 May 2003 would most likely have been printed on 16 May 2003 (a Friday) and lodged with Australia Post on the following working day, Monday, 19 May 2003.  Therefore, whilst on the face of it it appears that the applicant was given 14 days notice, in practical terms, even if she received the letter one day after it was received by Australia Post, then the earliest time that the letter would have been received by the applicant would be 20 May 2003.  In that scenario, the two weeks purported notice is in fact reduced to one week two days.

17.     The respondent argued that the letters of the Department were undoubtedly despatched and therefore she must be taken to have notice of the Secretary’s request dated 15 May 2003 and the subsequent letter of advice dated 29 May 2003. 

18.     The Tribunal accepts that the evidence presented by Centrelink points to a high degree of effectiveness in their procedures and that the correspondence must be regarded as having been effectively posted. 

19. In determining whether this correspondence can be deemed to have been received by Ms Parker, section 29 of the Acts Interpretation Act is relevant.  If the provisions of this section are satisfied, then service of notice is deemed to have been effected.  A “deeming” provision is a statutory fiction which must be applied in accordance with the purpose for which it was introduced.  However, care must be taken in applying such provisions in context (see Griffith CJ in Muller v Dalgety (1909) 9 CLR 693 at 696). Where all formalities are satisfied then service will be deemed to have taken place unless the contrary is proved.

20.     This requires that initially there must be a finding, on the balance of probabilities, that all formalities have been attended to, i.e. that a document is in existence;  and that it is properly addressed, prepaid and posted as a letter.  Where it is “posted”, this means handing over the letter to Australia Post. If these aspects are all fulfilled, then the deeming provision in section 29 of the Acts Interpretation Act comes into effect unless the contrary is proved.  If the contrary is not proved, the deeming service, that is, giving of notice by post, comes into effect. 

21. At that stage, section 160 of the Evidence Act then must be considered. It stipulates that the relevant time of receipt is to be four working days after posting, unless there is evidence shown which is sufficient to raise a doubt. However, in a practical sense, applying the provisions of section 160 to the facts of this case shows that service would be deemed to have been effected on Friday 23 May 2003. In that scenario, the notice which appears to give the applicant 14 days notice to respond in fact is reduced to 4 days. This is particularly pertinent when one considers that the letter of 29 May 2003 was dated exactly 14 days after the original letter and the allowance was ceased as from 29 May 2003. It is noted that this was the first notice provided and no reminder notice is given prior to the cessation of the allowance.

22. In ordinary circumstances, this is a reasonable provision and a reasonable practice to follow. It would be unreasonable to expect that Centrelink could provide the resources to follow through every similar case which it administers, given particularly, that many people reliant on Centrelink benefits may tend to be more itinerant. However, in the case of Ms Parker or other persons with an intellectual disability, this practice works to the disadvantage of such a person. It would be perfectly reasonable to apply section 29 of the Acts Interpretation Act quite strictly for those who receive Centrelink benefits and have the capacity to make enquiries on their own behalf.  However, in the case of someone with a disability, particularly an intellectual disability, hardship and inequity undoubtedly results.

23. Section 29 provides that the deeming provision applies, “unless the contrary is proved”.  In other words, if the deeming provision is satisfied, the onus then moves to the applicant to prove that the contrary applies.  This can be achieved by providing substantial evidence that outweighs the statutory presumption, for example, by illness, demonstrating mail has been lost or stolen.  Where an applicant relies on this part of the provision to prove evidence contrary to the presumption, then that person must have done all that could reasonably be expected to have been done by that person to ensure that their mail comes to their attention.  In Repatriation Commission v Gordon (1991) 100 ALR 255, Spender J held that the phrase “unless the contrary is proved” in section 29 of the Acts Interpretation Act encompasses two aspects –

(i)proof must be provided that the time of delivery was different from the time of ordinary delivery; or

(ii)proof must be provided, on the balance of probabilities, that there never was delivery.

24.     In relation to (i) above, this refers to establishing the formalities of the posting stage, or any variance to the ordinary posting process, or the need to apply the  “deeming” provision as to the ordinary course of post.  The second finding in the above decision refers to proving that, having been posted, there was no delivery.  This may include no delivery to the address, or having been delivered to the address, it was not received by the addressee.  For example, it may have been stolen or retrieved by another person who forgot to give it to the addressee or perhaps concealed it from the addressee.

25.     In considering these provisions in relation to the whole of the evidence, the evidence presented by Ms Dwyer, has satisfied the Tribunal that all formalities of the posting stage have been satisfied.  In relation to the applicant however, it was said that mail had indeed been stolen from the block of units on a number of occasions.  This contention by the applicant was corroborated by a statement by Mr Bill Dwyer, who is the caretaker of the unit complex in which Ms Parker resides. That statement highlighted a chronology supportive of Ms Parker’s contention and showed that some mail had been stolen from that Unit complex and that stolen mail had been recovered in a dump subsequently.

26.     The hearing before the SSAT accepted this evidence that Miss Parker had not in fact received the correspondence referred to.  This Tribunal also accepts that Miss Parker did not in fact receive the correspondence in issue here. 

27.     There is further corroboration of evidence from Mrs Parker, the applicant’s mother, who informed the Tribunal that she and Mr Parker had arranged the applicant’s financial affairs so that she could live relatively independently, and that all her bills had been budgeted for and could be paid for directly from her bank account.  It was only when she first realised that the disability support pension had been reduced by the amount of the rental assistance payment that she realised something had occurred adversely for her daughter.  This was manifested by the fact that there were insufficient funds in her bank account to pay for her ordinary living expenses, contrary to their budgeting and plans for their daughter.  Mrs Parker notified Centrelink the day on which she became aware of it and this is corroborated by a note on her file at Centrelink.  Evidence was also produced that the document required was lodged by Mrs Parker with Centrelink the next day, 10 December 2003.  That is the day that the rental assistance payment was reintroduced.

28.     When representing their daughter at the hearing, Mr and Mrs Parker demonstrated a genuine concern and support for her and a diligence in dealing with her administrative and financial affairs.  Mrs Parker informed the Tribunal that she normally deals with her daughter’s mail because of the applicant’s disability.  There is no reason to believe that Mrs Parker would not have responded to Centrelink’s request of 15 May 2003 in a speedy way (as she did on 9 December 2003) had she known of the original request.  The fact that Mr and Mrs Parker had arranged their daughter’s financial affairs responsibly and responded to an identified difficulty without delay, demonstrates the diligence they applied in their support for her.  That, together with Mr Dwyer’s letter, supports the conclusion on the balance of probabilities, that she did not receive the letter, notwithstanding there was no lack of competence or effectiveness in the systems maintained by the Department of Family and Community Services.

29. The Tribunal therefore finds that for the purpose of section 29 of the Acts Interpretation Act the contrary has been proved.  Therefore, the letter is deemed not to have been received.  The question therefore then is whether Ms Parker is entitled to the disability support pension as from a date earlier than 9 September 2003, the date to which the SSAT backdated the entitlement to the rent assistance allowance.  It was pointed out to the Tribunal that while 9 September is the effective date, because of administrative oversight, Ms Parker has in fact been paid from 3 September 2003.  Therefore, if the Tribunal determines an earlier date is applicable, any arrears would only run from that earlier date until 3 September 2003.   

30. The decision which applied where a favourable determination results from a review, is contained in section 109 of the Social Security (Administration) Act. In this particular case, section 109(2) had been deemed to apply to the original decision as more than 13 weeks had elapsed after the notice was given before a favourable determination was made. Under that subsection, the favourable determination is to take effect on the day on which the application for review was made. Previously, that had been the date of the review of telephone allowance where a CPI increase had been granted. However, as the Tribunal has determined that the contrary has been proved under section 29 of the Acts Interpretation Act, that is, that the person has not been given notice of the original decision, then section 109(3) is therefore the governing provision.

31. Under section 109(3), the favourable determination takes effect on the day on which the determination embodying the original decision took effect. As the date of that decision was 29 May 2003, that should be the effective date for payment of arrears of rent assistance. Accepting that the respondent’s submissions are correct, that is, that there has been payment of arrears of rent assistance from 3 September 2003 (rather than the actual effective date of 9 September 2003), then arrears of rent assistance should therefore be payable from 29 May 2003 until 2 September 2003.

32. There appears to be no issue in this case that the applicant is not qualified to receive the allowance from an earlier date. She was clearly entitled to it up to 29 May 2003 and has had that allowance reinstated from 9 September 2003. The only disqualifying provision was seen to be the interpretation of section 109 and whether the applicant was deemed to have received the earlier correspondence seeking review information and cancelling that allowance. Therefore, there seems to be no disqualification for the allowance and had the letter of 15 May 2003 been received and acted on by the due date, that is, 29 May 2003, then the applicant would have been entitled to continuous benefits. There seems to be no impediment to the Tribunal ordering payment of rent assistance and arrears (see Secretary, Department of Social Security v Sevel (1992) 110 ALR 627 at 635). There, the Full Court of the Federal Court, stated that once cancellation of the decision below was set aside, the respondents then had the benefit of extant decisions granting their claim. The invocation of section 109(3) by this Tribunal entitles the applicant to be paid the amounts attributable to that original decision, without the necessity of a new decision by the Department.

33.     The Tribunal determines that –

(a)the decision under review is to be set aside to the extent that rent assistance is not payable from a date earlier than 9 September 2003;

(b)arrears of rent assistance are to be paid to the applicant from 29 May 2003 until 2 September 2003.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member

Signed:         Camille Banks

Associate

Date/s of Hearing  29 October 2004
Date of Decision  2 December 2004         
The Applicant was represented by her parents, Mr and Mrs Parker
For the Respondent                  Ms J Dwyer, Departmental Advocate