Plug; Department of Social Security - [2000] AATA 744

DECISION AND REASONS FOR DECISION [2000] AATA 744

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/404

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SECRETARY, DEPARTMENT OF SOCIAL SECURITY
  Applicant
           And    DEBRA JEANETTE PLUG
  Respondent

DECISION

Tribunal The Hon Justice D F O'Connor, President Mr R D Fayle, Senior Member Ms S McKnight, Member

Date25 August 2000
PlacePerth

Decision      The Tribunal sets aside the decision under review and in substitution decides that the respondent's rate of family allowance is properly increased from 12 March 1998.
  ..............................................
  President
SOCIAL SECURITY – family allowance – sufficient notice – whether mere indication of the rate paid constitutes sufficient notice of the decision regarding the applicable rate

Social Security Act 1991 (Cth) s 887
Administrative Appeals Tribunal Act 1975 (Cth) s 3(3)

Re McAllan and Secretary, Department of Social Security (1998) 51 ALD 792
Austin v Secretary, Department of Family & Community Services (1999) 29 AAR 528
Rose v Secretary, Department of Social Security (1990) 21 FCR 241
Secretary, Department of Social Security v SRA (1993) 118 ALR 467
Re Secretary, Department of Social Security and Sting (1995) 39 ALD 721
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98
Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273

REASONS FOR DECISION

The Hon Justice D F O'Connor, President Mr R D Fayle, Senior Member Ms S McKnight, Member

This application is for a review of a decision of the Social Security Appeals Tribunal (SSAT) made on the 24 August 1998, in which the SSAT decided to vary a decision made by a Centrelink delegate of the Secretary to the Department of Social Security on 28 May 1998 as affirmed by an authorised review officer on 15 July 1998, to increase the respondent's rate of family allowance from 12 March 1998 and not from any earlier date.
Relevant Legislation and Materials
"Section 887 Date of effect of favourable determination
887(1) The day on which a determination under section 878 or 883 (the favourable determination) takes effect is worked out in accordance with this section.
…
(3) If:
(a) a decision (the previous decision) is made in relation to a family allowance; and
(b) a notice is given to the recipient advising the recipient of the making of the previous decision; and
(c) the recipient applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day in which the recipient sought the review.
(4) If:
(a) a decision (the previous decision) is made in relation to a family allowance; and
(b) no notice is given to the recipient advising the recipient of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 744
Decision Date: 25 August 2000

CaseChat Overview and Summary

This appeal concerns the interpretation of section 887 of the Social Security Act 1991 (Cth) and the circumstances in which notice of a decision is required for the purposes of determining the date of effect of a favourable determination. The applicant, the Secretary to the Department of Social Security, appealed a decision of the Social Security Appeals Tribunal (SSAT) which varied a decision of the original decision-maker to increase the respondent's rate of family allowance from 12 March 1998. The SSAT had found that the respondent had only been "properly notified" on 7 July 1997. The Tribunal was required to determine whether the SSAT erred in its interpretation of what amounts to "notice" under section 887 of the Act. The Tribunal held that the SSAT was correct in its interpretation of the provision. The Tribunal found that the notice must include sufficient information for the recipient to know what the main reasons for the decision are. The Tribunal held that the applicant had not included sufficient information in its letters to the respondent to advise her of the making of a previous decision within the meaning of subsection 887(3)(b). The Tribunal set aside the decision under review and in substitution decided that the respondent's rate of family allowance is properly increased from 12 March 1998.

Orders