Re Frost and Secretary, Department of Social Security
[1995] AATA 228
•16 October 2015
Lewis and Secretary, Department of Social Services (Social services second review) [2015] AATA 898 (16 October 2015)
Division
GENERAL DIVISION
File Number
2014/5304
Re
Dean Lewis
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 16 October 2015 Date of written reasons 24 November 2015 Place Adelaide For the reasons given at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances- Carer Payment- benefit admitted to have been underpaid – error only identified by applicant 4 years after payment commenced – application for arrears - whether inquiry made by applicant at counter of Centrelink was an application for review – held it was not – decision affirmed.
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Frost and Secretary, Department of Social Security [1995] AATA 228
Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639
REASONS FOR DECISION
Senior Member N A Manetta
24 November 2015
After delivery of my oral decision and reasons, I received a request for written reasons, which I now publish.
This is an application by Mr Dean Lewis for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 September 2014 refusing full arrears of the Carer Payment benefit he received in respect of his mother from 25 May 2009 until her death in March 2013.[1] It is agreed between the parties that during this time, Mr Lewis was substantially underpaid the benefit to which he was entitled under the Social Security Act 1991 (the Act). Mr Lewis alleges an underpayment totalling $47,600. Paragraph [2] of the SSAT’s decision refers to a file note suggesting Mr Lewis was underpaid by about $47,000. Whatever the exact figure, there is clearly a very substantial sum at stake for Mr Lewis.
[1] I understand from Mr Lewis’s evidence that a supplement may also have been paid to him after his mother’s death as a form of, in effect, bereavement allowance.
LEGAL ISSUE
The legal issue before the Tribunal is whether s 109 of the Social Security (Administration) Act 1999 (the Administration Act) permits a full back payment to 2009 as Mr Lewis contends.
PRIOR DECISIONS
The matter comes to this Tribunal in the following way. Mr Lewis first became aware of the substantial shortfall in the payment of his benefit in April 2013 when he rang Centrelink to inform it of his mother’s death. The telephone operator in Queensland drew his attention to the fact that he had been substantially underpaid from the date the benefit was first paid to him. He requested a back payment to 2009 from Centrelink, but a payment going back that far was refused.
He requested an internal review and the internal Authorised Review Officer (ARO) decided the matter as follows.[2] She was unable to locate any record of Mr Lewis having queried his rate of payment before his telephone conversation with Centrelink in April 2013. She decided that under s 109 of the Administration Act any request for a review must take place within 13 weeks of the date notice was given of the decision if arrears are to be back paid to the date of the decision. If the request for review is made more than 13 weeks after notice of the decision is given, arrears can only be paid to the date the review was requested.
[2] T Documents, T3, pp 20-31.
The ARO decided that this statutory provision precluded her from granting arrears to 2009. She noted, however, that there had been a CPI adjustment to the allowance on 20 March 2013, which was notified to Mr Lewis. Accordingly, as Mr Lewis’s application for review was within 13 weeks of notice being given of that decision, arrears could be paid for that limited period (approximately, one month). No greater amount of arrears could be paid, however.
Mr Lewis appealed this decision to the SSAT. The SSAT also declined to award Mr Lewis full arrears.[3] A summary of the SSAT’s conclusions appears in table form at paragraph [63] of its reasons. The SSAT did, however, award Mr Lewis some further arrears.
[3] T Documents, T2, pp 4-19.
The reasoning to support that conclusion is not, however, relevant to my determination of Mr Lewis’s application to this Tribunal. I say this because Mr Lewis’s application to this Tribunal that he should receive full arrears is based on a single argument adduced on his behalf by Ms Riley, who appeared for him. If he is unsuccessful in that argument, Ms Riley made it clear that he does not seek to challenge the arrears found to be payable by the SSAT. Similarly, Mr Hay, appearing for the respondent, did not challenge the SSAT’s decision.
In the circumstances, I am happy to proceed on that common basis between the parties; namely, that if Mr Lewis is unsuccessful in his argument before the Tribunal, I should simply affirm the decision under review leaving Mr Lewis with the arrears he has been awarded by the SSAT.
Finally, I note that I must determine the factual matters underpinning Ms Riley’s submission afresh on the evidence before me, irrespective of how the matter was dealt with by the ARO and SSAT.[4]
[4] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
FACTUAL BACKGROUND
I now set out the salient background facts. Mr Lewis, who now lives alone, began caring for his disabled mother in 2003 and only ceased caring for her on her death in 2013. In August 2008, his mother fell and broke her hip. The level of care required of him increased substantially at that point in time. He was still employed at that time, but in April 2009, he was retrenched from his full-time position with a company called Kee Technologies, a firm for which he had worked for some six and a half years receiving, he said, approximately $1,400 gross per fortnight. He received a lump sum termination from his employer totalling, after tax, some $16,000.
Mr Lewis made a claim for Carer Payment in person at the Enfield branch of Centrelink in 2009. He collected the forms, filled them out at home, and returned to the Enfield office for an interview. He brought with him his letter of retrenchment from Kee Technologies.
In evidence that was not the subject of cross examination, Mr Lewis maintained that he had told the Centrelink officer conducting the interview that he had been recently retrenched. The form he submitted indicated that he was not in receipt of any income. I find that to be the case. Nevertheless, it appears that the Centrelink officer wrongly recorded Mr Lewis’s former fortnightly income with Kee Technologies as a current ongoing income, with the result that the amount of the benefit he was paid was substantially discounted from its proper level.
Mr Lewis was advised by letter dated 26 June 2009 of the benefit proposed to be paid to him. The regular payment was advised to be $181.87 per fortnight (inclusive of a pharmaceutical allowance). The letter clearly indicated that regular fortnightly earnings of $1,078.44 had been used in the calculation of his entitlement.[5] The reverse page of the letter encouraged dissatisfied recipients to come into Centrelink to discuss matters and further advised them of their appeal and review rights up to the SSAT.
[5] T documents, T9, p 78.
Mr Lewis did go back to Centrelink at Enfield within a few days of receiving the letter. He gave evidence that he spoke to someone at the reception counter. He raised with that person his view of the rate appearing to be very low and gave evidence that he was told that each person is assessed according to his or her individual circumstances. He was shown a computer screen setting out his calculated entitlement. I accept this evidence.
He gave evidence that, still dissatisfied, he left the counter and tried to find the person who had interviewed him to pursue matters further. He gave evidence that he was in a distraught mood. A security guard asked him to leave Centrelink’s premises. I accept this evidence.
Mr Lewis also gave evidence, which I accept, that he did not take matters further as, in his words, he “did not see the point”. He coped financially from then on by combining the Carer Payment he received with his mother’s old age pension entitlement. He paid all bills from these pooled resources. Life was very basic, indeed, according to his evidence, which I accept.
When his mother died, Mr Lewis rang Centrelink, as I have said, and spoke to an operator in Queensland, who asked him whether he was “still working”. Upon being informed of the true situation (namely, that he had not been working since being retrenched from Kee Technologies), the operator advised Mr Lewis that he had been assessed incorrectly.
In evidence that I accept, Mr Lewis indicated that he always thought the level of his benefit was low, but he did not read the “Your Rights” section on the reverse side of the letter and did not ever seek advice in relation to his entitlements. After the one contact with Centrelink shortly after receiving the initial notification letter, to which I have already referred, he “gave up on Centrelink” in his words and did not contact Centrelink again until his mother’s death.
LEGAL ISSUE
The legal issue that arises for determination is whether Mr Lewis is legally entitled to a back payment of arrears to 2009. In my opinion, the answer to this question is no, although I am disappointed I must reach this decision as a matter of law.
Section 109 of the Administration Act makes it clear that a successful application for review of a social security decision will take effect from the date of the review application unless the period between the decision notification and the application for review is 13 weeks or less. In that case, a back payment can be made to the date of the decision.
Ms Riley accepted this legal position but pressed me with a submission that an application for review had been made within 13 weeks of the decision in 2009. Ms Riley submitted that the application for review was made orally at the counter of Centrelink in the circumstances I have earlier described.
CONCLUSION AND REASONS
I do not accept this submission, although it is a conclusion I reach with some regret. I accept Mr Lewis’s evidence that he approached counter staff to query his pension entitlement, and, in effect, to seek an explanation given that he thought it was low.
His evidence, however, was that he had not turned his mind to formal review processes at that time and had not read the “Your Rights” section on the back of the letter. Moreover, his evidence was that once the staff member at the counter showed him his entitlement on the computer screen, he went looking for the original decision-maker but was asked to leave Centrelink’s premises by a security guard before making contact. Mr Lewis did not ask the staff member he spoke with how he might take matters further.
In my opinion, Mr Lewis did not believe he had sought a review or reconsideration of his case from the counter staff officer. The events he described are consistent, rather, with his believing in his own mind that he had raised a mere query with counter staff, that the response had left him dissatisfied, and that he wished to raise the matter directly with the original decision-maker. Unfortunately, as I have said, he was ushered out of Centrelink before he could do so. After that, he said he “gave up on Centrelink” and effectively accepted that what he was being told must be right after all. He did not pursue matters after that time.
Ms Riley emphasised that an application for internal review can be of the most informal kind.[6] I do not doubt that an application for review can be informal and that an applicant need not use the word “review”. Nor need an applicant for review have any appreciation of the scheme of the Act or the Administration Act. I also accept that a single enquiry can amount to an application for review[7]; but, equally, not every enquiry at a counter seeking clarification of an entitlement amounts to an application for review that must be referred by Centrelink staff to an ARO. That appears to me to be the effect of Ms Riley’s argument, which I cannot accept in that unrestricted form.
[6] Basing this submission on dicta in Re Evelyn Frost and Secretary, Department of Social Security [1995] AATA 228.
[7] As it did in Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639 where the Tribunal noted at [14] that a single telephone inquiry raising specific matters relating to the calculation of a pension entitlement amounted to an application for review in that case.
A person may be merely seeking in his or her own mind a clarification or an explanation on the one hand; or a person may be seeking, on the other hand, to have his or her entitlement reconsidered within Centrelink; that is, he or she may be seeking “a review”. In my opinion, Mr Lewis was seeking merely a clarification or explanation from counter staff, not a reconsideration of his entitlement. Had he intended to seek a reconsideration within Centrelink, he would have asked the staff member how he might go about requesting it. His discussion with the counter staff member is more consistent with his merely having sought an explanation or clarification, and not a review.
Mr Lewis’s evidence to the Tribunal was that he initiated no further contact with Centrelink before his telephone conversation with the Queensland operator in 2013. I note this is inconsistent with a form he lodged with Centrelink in 2013,[8] where there is a reference to another personal attendance by him at Centrelink’s offices. He gave contrary evidence to the Tribunal, however, and, it would appear, to the SSAT as well.[9] I have decided his application to this Tribunal on the basis of his oral evidence (which is consistent with his evidence to the SSAT in this regard).
PAYMENT EX GRATIA
[8] T Documents, T6, p 68.
[9] See paragraph [18] of the SSAT’s decision at T2, p 9.
Mr Hay properly conceded that this matter involved very poor administration. The error was Centrelink’s. I do not accept at all Mr Hay’s submission that Mr Lewis was at fault. It is true that Mr Lewis did not pursue his rights, but the initial blunder was Centrelink’s. Many people find it difficult to engage with Centrelink and the bureaucracy in general. In this case, the unchallenged evidence is that Mr Lewis provided correct information to Centrelink which was, inexplicably, wrongly recorded. He has missed out on a very substantial sum of money.
This is a case where, in my opinion, an ex gratia payment should be made. I am reinforced in this view by the evidence of Mr Lewis’s circumstances. He is unemployed and has some serious health concerns. I accept that his future employment prospects are poor.
I accept Mr Lewis’ evidence that for many years he had to lead an extremely frugal life coping with an elderly and disabled mother. He was clearly entitled to the allowance and in the absence of fault on his side in bringing about the initial error, I believe a payment ex gratia is warranted.
In fact, I wish to make it plain that, having heard all relevant evidence, I do not believe a decision to refuse him a payment ex gratia could be justified in the circumstances of this case.
DECISION
My final decision, therefore, is to affirm the decision under review, but to recommend strongly the payment of arrears ex gratia. The formal decision of the Tribunal will be to affirm the decision under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta ..........................[Sgd]........................................
Administrative Assistant
Dated 24 November 2015
Date(s) of hearing 14 September 2015 & 16 October 2015 Advocate for the Applicant Ms M Riley Solicitors for the Applicant Welfare Rights Centre (SA) Inc Advocate for the Respondent Mr A Hay Solicitors for the Respondent Department of Human Services
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