Power and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 713

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 713

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5671

GENERAL ADMINISTRATIVE DIVISION

)

Re

HENRY POWER

COLLEEN POWER

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date23 July 2008 

PlaceNowra

Decision For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 1 November 2007. 

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

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY - age pension - correct information supplied to Centrelink but information processed incorrectly - underpayment of age pension as a result of error on the part of Centrelink - review of decision requested more than 13 weeks after notification of decision - no entitlement to payment of arrears - claim for compensation - comments on matters relevant to the consideration of the compensation claim - decision under review affirmed

Social Security (Administration) Act 1999 – sections 109, 123 and 192

REASONS FOR DECISION

14 August 2008 Mr S E Frost, Member        

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and my reasons were stated orally. The parties, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, have requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision were transcribed by Auscript, the Commonwealth Reporting Service. What follow are the reasons as transcribed, corrected where necessary for obvious errors.

3.      The decision under review is the decision of the Social Security Appeals Tribunal dated 1 November 2007 affirming a Centrelink decision to pay age pension to Mr and Mrs Power at the correct rate from 30 May 2007 and not before.

4.      The issues that arise in the matter before the Tribunal are:

·     whether Mr and Mrs Power requested a review of Centrelink decisions to pay age pension at a particular rate, at any time, between the years 1999 or 2001 to  2007;

·      whether Centrelink notified the Powers of its decisions to pay age pension at a particular rate between those years; and

·     whether arrears of pension are payable for any period prior to 30 May 2007.

5. The facts are fairly straightforward. Mrs Power has been in receipt of the age pension since 1999 and Mr Power since 2001. The first notifications of their entitlement to pension were made at the time that each of their original grants were made. Since then there has been regular, generally annual, correspondence from Centrelink to the Powers requesting updated information in relation to their income. These so-called requests for information have been made under section 192 of the Social Security (Administration) Act 1999 (“the Act”).  Mr Power has been the person who has responded to the requests for information.

6.      There is no dispute that the information that Mr and Mrs Power have given to Centrelink has always been accurate and has always been given within the timeframe set out in the Centrelink correspondence.  Nevertheless, Centrelink has not paid the Powers their full pension entitlement.  Although the information in Centrelink’s possession has always been sufficient to enable the entitlement to be calculated correctly, the full entitlement has not been paid.  Over the period from either 1999 or 2001 and 2007, the Powers have been short paid some thousands of dollars of their proper entitlement.  This has not been the fault of the Powers.  It arises entirely because of incorrect processing by Centrelink of the information provided to it.

7. The question for the Tribunal has been whether the Powers are entitled to recover the arrears for any period prior to 30 May 2007, and the answer unfortunately is no. This is because the Powers did not make a request for review of any of the various decisions made by Centrelink over the years. The mistake was eventually discovered some time during 2007 and the arrears have been paid since 30 May 2007, but section 109 and section 123 of the Act prevent the payment of arrears from any date earlier than 30 May 2007.

8. I have carefully considered whether Mr Power’s responses to the various notices under section 192 of the Act could be regarded as requests for review of any of the Centrelink decisions over the period of time and I am satisfied that none of them can be objectively regarded as requests for review. So we have an error on the part of Centrelink which has been perpetuated over several years and although the customers have been given proper notice of the various decisions they were never really in a position to judge for themselves the correctness of the Centrelink decisions. This is largely because the information that is communicated to customers, when decisions of this nature are made, is quite scant and it is very difficult for customers to examine the correspondence that has been forwarded to them and to come to any real decision on whether the calculations have been done correctly or not.

9.      So it is not surprising that the Powers in this case did not make a request for review much earlier because although the notices are “adequate” in terms of what the law requires, and in accordance with some of the authorities in the Federal Court, they could not really be regarded as transparent or even informative of the information that is provided, except for the very final piece of information which is the fact that pension has been granted and that it is going to be paid at a particular rate.  But as far as discovering any of the underlying information that Centrelink relied on, or the method of processing that information, the notices don’t really give customers much information at all.

10.     Nevertheless, that is where we are.  They are adequate notices in terms of the law and I have to take the view that none of the correspondence that was sent by the Powers to Centrelink in the interim can be regarded as requests for review.  So as far as the strict legality of the position is concerned, the law doesn’t allow me to make any decision other than that the original decision that is under review is affirmed.

11.     But I do want to take the opportunity of recording in my reasons that the Powers have made an application for compensation through the Compensation for Detriment Caused by Defective Administration, or CDDA, Scheme and I would like to make some comments about how that claim might be considered and processed.  On the evidence that has been presented to me, I can comfortably conclude that both Mr and Mrs Power have always been open and forthcoming with the information that they have provided to Centrelink, particularly the relevant information that Centrelink asked for going to the income that was received by Mr Power from his State Superannuation Fund.  The information has always been accurate, it has always been on time.

12.     The fact that the Powers have been underpaid their full entitlements arises, as I have said, entirely because of incorrect processing of information by Centrelink and I consider that the Powers have been sorely let down by the method of processing of the information by Centrelink.  They have been underpaid a significant amount of money.  The law says that they were entitled to much more money in the way of age pension than they have actually received over the years.  And although the law prevents me from determining this matter in their favour, it does strike me as a case that is entirely appropriate for favourable consideration of a compensation payment under the CDDA scheme.

13.     It has been indicated that the compensation claim won’t be further considered until the matter is finally resolved in this Tribunal, which is why I have taken the course of delivering an oral decision today so as not to slow the process down any further.  So I do recommend to the people who are considering the compensation claim to bear in mind the fact that the Powers were not in any way at fault in the way they provided the information to Centrelink.  It was entirely the result of incorrect analysis, or incorrect processing of the information that Centrelink received, that caused the underpayments to the Powers and I would hope that the lack of fault on the part of the Powers ought to be taken into account when the compensation claim comes to be considered by those people.

14.     I don’t think there is anything more that I need to say other than that.

Conclusion

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ..................[Sgd]...............................
  Ms R Prasad, Associate

Date of Hearing  23 July 2008
Date of Decision  23 July 2008
Date of Written Reasons  14 August 2008
Representative for the Applicants             Mr Power
Representative for the Respondent          Mr Nicoletti, Centrelink legal services