Pontifex and Secretary, Department of Family and Community Services

[2004] AATA 1052

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1052

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/428

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET PONTIFEX

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C, Deputy President

Date11 October 2004

PlaceSydney

Decision The decision under review is affirmed.  

[Sgd] The Hon R N J Purvis Q.C
  Deputy President

CATCHWORDS

SOCIAL SECURITY - whether rent assistance payable by Respondent in respect of Applicant’s late father for relevant period – whether Applicant’s late father notified of Respondent’s intention to cancel rent assistance - whether there was a request made to the Respondent to review its decision within the legislative framework – decision affirmed

Social Security (Administrative) Act 1999 sections 109, 236, 237

REASONS FOR DECISION

11 October 2004                    The Hon R N J Purvis Q.C, Deputy President   

the application

1.      This is an application made by Mrs Margaret Pontifex (“the Applicant”) on 12 March 2003 seeking review by the Tribunal of a decision made by a delegate of the Secretary, Department of Family and Community Services (‘the Respondent”) on 28 November 2002 (T15).  Such decision was to reject a claim for rent assistance in respect of the late William John Denniss whose affairs were at all relevant times being administered by the New South Wales Office of the Protective Commissioner (“OPC”).

2.      The Applicant in her application to the Tribunal sets forth, amongst other matters, the basis of her appeal as:

“…

2…the Department of Social Security (DSS and then Centrelink knew from their own internal audit report in December 1995 that any correspondence between themselves and the New South Wales Office of the Protective Commissioner (NSW OPC) would be totally ineffective. The DSS internal team had demonstrated to DSS senior management that the NSW OPC regularly flouted the Social Security Acts as a matter of policy.

…

4. Our submission is that because the Department of Social Security and then Centrelink knew that any notice given would be an ineffective notice then the intent of the notice is null and void as there was never any attempt by the Department to communicate effectively with their client.

5…We submit that it is immaterial whether or not the correspondence is properly addressed if the sender knows in advance that the it will be ignored upon receipt and that the SS Act will be flouted.  The act of correspondence is designed to elicit a response as required by law.  The sending of correspondence, when it is known in advance it will  not elicit any response, is a futile exercise and does not discharge the Department’s duty of care to their client to correspond with the recipient…”

3.      The decision of the Respondent was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 7 February 2003.

the hearing

4.      At the hearing of this application the Applicant was assisted in presenting her case by Mr Maygar, a friend of hers.  The Respondent was represented by Mr James Larcombe, an advocate for the Centrelink Service Recovery Team.

5. There was introduced into evidence the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T30). Written material tendered on behalf of the parties was submitted as Exhibits and marked accordingly.

Exhibit	Description	Date
A	Respondent’s Report  “National Audit Third Party Payments”	July 1996
1	Letter from New South Wales Office of Protective Commissioner to Applicant	3 August 2004

6.       Oral evidence was given by Mr Mayger and Mr Paul Marshall of the OPC on which they were each cross-examined.

the issue

7.      As I have indicated above the Applicant in her application and again in closing submissions raised a number of matters of concern to her.  They generally related to alleged breaches of a duty of care said to be owed by the Respondent to pension recipients and a collateral breach of a duty of care said to be owed by the OPC to those for whom it is responsible.  Whilst the Tribunal recognises that these are matters of concern to the Applicant, as was brought to her attention during the hearing, I am only enabled to consider in this appeal matters properly brought before the Tribunal and in accord with the provision of the relevant legislation.

8.      The Tribunal does not have a general jurisdiction and has only that conferred upon it by statute.  In this matter the only issue that the Tribunal is competent to consider is whether arrears of rent assistance are payable by the Respondent in respect of the late Mr Denniss’s residence at Sunshine Lodge for the period 18 February 1999 to 22 September 2000.  A determination of this question will depend upon whether Mr Denniss was notified of the Respondent’s intention to cancel rent assistance and if so whether there was a request made to the Respondent in accord with the provisions of the Social Security (Administrative) Act 1999 (“the Act”) to review its decision within the legislative framework.

relevant statutory provisions

9.      The Act provides so far as here relevant:

“109 (1) if:

(a)a decision (the original decision) is made in relation to a persons social security payments; 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 persons 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 persons 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.

…

236 (1) A decision of an officer under the social security law must be in writing.

236 (2)A decision under the social security law is taken to be in writing if it is made, or recorded, by means of a computer.

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)send by pre-paid post to the postal address of the person last known to the Secretary;

notice of the decision is taken, for the purpose 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 ordinary course of the post unless the contrary is proved.

…”

the factual situation and findings of fact

10.     The factual situation in this application was detailed in the Reasons for Decision of the SSAT and as supplemented or varied by evidence before this Tribunal is as follows:

·The late Mr Denniss was and had been in receipt of age pension payments which included a rental assistance component prior to him moving to Sunshine Lodge on 29 January 1999.  Centrelink cancelled the rent assistance payments to Mr Denniss with effect from 18 February 1999 on the basis that Centrelink had not been provided with proof of the recipient of rental payments required for continuation of these benefits.  Until Mr Denniss passed away, on 22 September 2000, he was paid the age pension without a rent assistance component.

·Throughout the relevant period and indeed from 1954 the OPC was the legally appointed financial manager of Mr Denniss’s affairs.  On 12 February 1999, Centrelink sent to Mr Denniss a letter which read as follows (T30 p95):

“Mr William J Dennis

Office Of Protective Commission

…

Dear Mr Dennis

I am writing to you about your Age Pension.

Your payment will be $362.70 per fortnight starting from 18 February 1999.

Your pension has decreased because of a change in your circumstances.

You are ineligible for Rent Assistance as you have not given us proof of the amount you pay for rent or lodging. You may receive Rent Assistance again if you give us proof of your rent payments such as a recent rent receipt, current lease or signed letter from the person you pay.

Please read the back of this letter. It tells you about your social security rights and what you have to tell us.

If you want to know more please get in touch with us. Our address and phone number are at the top of this letter. Please have the letter with you if you call.”

Neither Mr Denniss nor the OPC contacted Centrelink and no proof of payment of rent, receipt of rent nor lease document was provided.

·After Mr Denniss passed away his daughter, Mrs Pontifex, contacted Centrelink regarding the non-payment of rental assistance to her father after he moved to Sunshine Lodge.  Although Mrs Pontifex was not the executer of the estate of Mr Denniss (the executer was the Public Trustee) Centrelink recognised Mrs Pontifex as having the authority to request a review of Centrelink’s decision in relation to Mr Denniss.

·On 28 November 2002, an authorised review officer determined that (T1 pp11):

“…In relation to rent assistance…arrears were not payable, as there was no request for a review of the decision to cancel this payment within three months of Mr Denniss being notified of the decision, by the letter dated 12 February 1999…

9. Mr Denniss’s financial affairs [had been] brought under the control of the [OPC] in 1954, pursuant to a Management Order made under the Protected Estates Act 1983. The OPC advised Centrelink of this by letter dated 14 July 1994, which in part asked Centrelink to note that “the Protective Commissioner may exercise all of the functions of a protected person”…

…the OPC was the correct entity to be sent Centrelink correspondence dealing with Mr Denniss’s entitlements.”

11.     The OPC has acknowledged receipt of the Respondent’s letter of 12 February 1999 and in a letter signed by the Protective Commissioner under date 3 August 2004 (Exhibit 1) addressed to the Applicant, inter alia, states:

“...

Because your father was being cared for within the mental health system, OPC’s role in his life was limited to paying his accommodation and comforts allowances when requested by the facility in which he was living. OPC’s records indicate that Mr Denniss was receiving rent assistance as part of his Centrelink benefit until February 1999. I can confirm that OPC did receive a letter from Centrelink dated 12 February, 1999 notifying the office that rent assistance would be discontinued. There is no evidence available to suggest that OPC acted on this letter and, on behalf of OPC, I sincerely apologise for this oversight. While there is no excuse for this error I am pleased to at least be able to say that the oversight did not result in Mr Denniss being left without funds to meet his day to day needs.

Where an error occurs, such as that which occurred in relation to your father’s entitlements, it is OPC’s practice, when the error becomes apparent, to make representations to Centrelink seeking payment of any missed allowance in order that a client may not be disadvantaged…

Around 60% of OPC’s clients receive Centrelink benefits and this office handles thousands of pieces of correspondence from Centrelink each year relating to people’s entitlements. In a small number of cases mistakes do occur but those mistakes represent only a small fraction of the total transactions that are handled correctly. Nevertheless, I accept that OPC has an obligation to minimise its mistakes and with this in mind recently entered into a memorandum of understanding with Centrelink aimed at addressing some of the problems that have existed in the past.

…”

12.     Mr Paul Marshall, the manager of quality services at the OPC, stated in his evidence before the Tribunal and when being cross-examined by Mr Mayger on behalf of the Applicant, that he did not consider there had been, or was, a breakdown in communications between the OPC and Centrelink and that the OPC made every effort to comply with its obligations.  Of the OPC’s approximately 9500 clients, 60 per cent he said would be in receipt of a social security benefit.  There was not any evidence before the Tribunal to the contrary.  A national audit conducted in 1996 of which Mr Mayger was a participant (Exhibit A), whilst making an adverse observation as to the Office of the State Public Trustee and the monitoring of entitlements of its customers, is not of sufficient relevance to the factual situation in this matter such as to affect the Respondents statutory obligations.  It is apparent from answers given by Mr Mayger during his cross-examination that the audit did not identify instances where the OPC had not acted on requests being made to it. 

13.     The OPC has admitted that it did not react as it should have to the letter of 12 February 1999.  The reason for this error on its part is not apparent.  The OPC only became aware of this neglect on its part during the currency of the present proceedings, five years after the non event.

decision

14.     There was not any evidence before me of “systemic non compliance” by the OPC or Centrelink with their statutory obligations.  Centrelink forwarded its written intent and decision to Mr Denniss and the OPC as the appointment required.  There was no obligation imposed on it by the Act to do otherwise.  The OPC should have replied to the letter of February 1999.  The necessary information as to Mr Denniss’s whereabouts was known to it and in its possession.  It was remiss in not responding.  Whether the failure to reply to Centrelink’s letter was, as the OPC contends, an “error” or otherwise I am not, on the evidence before the Tribunal, able to say.  In any event it is not a finding that has to be made in order to determine this matter.

15.     The Applicant asked the Tribunal to make a finding against the OPC.  The OPC is not a party to these proceedings and the decision under review is not a decision of the OPC.

16.     It was further submitted that the Respondent did not provide an adequate system to ensure the operation of the Act.   There is no evidence before the Tribunal to this effect.  The Respondent did all that the Act required of it.

17.     I am satisfied on the evidence before the Tribunal that the decision in writing was made by the Respondent pursuant to section 236 of the Act and that it was given pursuant to section 237 of the Act to the proper person, the Office of the Protective Commissioner, the Commissioner having management of Mr Denniss’s affairs.  I am further satisfied and so find that the written decision having been properly served, that no response was made to it by the OPC.

18.     Unfortunately an application for review of the decision was not made until 19 March 2002, the date Mr Mayger and/or Mrs Pontifex contacted Centrelink to question the non-payment of rent assistance.  Mr Denniss had passed away on 22 September 2000.

19.     For the reasons herein before set forth the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  16 April 2004, 19 July 2004, 16 September 2004
Date of Decision  11 October 2004
For the Applicant  Mr J Mayger         
Solicitor for the Respondent     Mr J Larcombe