RJNH and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2568

RJNH and Secretary, Department of Social Services (Social services second review) [2018] AATA 2568 (7 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3773

Re:RJNH

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Amy Wood, Member

Date:7 June 2018

Place:Melbourne

The Tribunal sets aside the decision under review and decides in substitution that the Applicant’s mobility allowance be paid from 29 March 2016.

[sgd]........................................................................

Amy Wood, Member

Catchwords

SOCIAL SECURITY – mobility allowance – impairment – date from which allowance should be paid –– decision set aside and substituted

Legislation

Social Security (Administration) Act 1999

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Amy Wood, Member

7 June 2018

PRELIMINARY MATTERS

1. This proceeding was listed for hearing on 1 December 2017. At 5:17pm on 30 November 2017, the Applicant emailed the Tribunal (and Respondent) and requested that the hearing be adjourned. The Applicant advised that she was “dealing with Denni from SSRV” (Social Security Rights Victoria) and that she would like time for him to “look into this matter further”.

2. On 1 December 2017, the Applicant appeared in person and reiterated her application for an adjournment. She was visibly distressed. The Respondent did not oppose the request.  The Tribunal granted the Applicant’s application and the matter was adjourned and re-listed for hearing on 6 April 2018 at 11:00am.

3. On 8 February 2018, the Applicant emailed the Tribunal and stated: “I would prefer my listing information to be private Thank you”. This request was initially opposed by the Respondent.

4. This application was listed for a resumed hearing by telephone at 3:30pm on 3 April 2018. The Applicant provided further and better information in support of her request, following which, the Respondent informed the Tribunal that it did not oppose the Applicant being referred to by a pseudonym in order to prevent the publication of her name. The Tribunal considered the application and the important competing interests. The Tribunal decided that in all the circumstances, it was appropriate to grant the Applicant’s request. Pursuant to section 35(3) of the Administrative Appeals Tribunal Act 1975, the Tribunal directed that:

   a)The publication of the Applicant’s name be restricted to the pseudonym RJNH; and;

   b)Publication of any other information tending to reveal the identity of the applicant be prohibited. 

5. In addition to the above, (in anticipation of the hearing on 6 April 2018), the Tribunal requested that the Respondent email to the Applicant a copy of its Statement of Facts, Issues and Contentions by 5pm on 3 April 2018. The Tribunal also requested that the Applicant provide a dot-point summary of the issues and submissions she intended to rely on by 5pm on 4 April 2018.

   Hearing

6. On 6 April 2018, the Applicant appeared in person and informed the Tribunal that she sought to rely on the four dot-points outlined in email correspondence dated 4 April 2018. She indicated to the Tribunal that she had received advice and was in a position to proceed with the hearing and have the matter determined.

7. The Respondent was represented by Senior Government Lawyer, Alisa Bramley from the Department of Human Services. 

8. The Applicant gave sworn evidence and was briefly cross-examined. The Tribunal Section 37 documents – “T documents” (T1-T21) were tendered. A small bundle of Supplementary T documents (ST1-ST6) were also tendered. Submissions were made by both parties and the Respondent provided two written decisions to both the Tribunal and Applicant.

9. At the conclusion of the hearing, the Tribunal invited the Applicant to take some time to consider the further evidence (ST1-ST6) and the written decisions. The Tribunal invited the Applicant to file any further submissions in writing by 4pm on 13 April 2018. If considered necessary, the Tribunal invited the Respondent to file a reply by 4pm on 20 April 2018.

10. The Applicant did not file any further submissions.

    Brief background

11. In March 2015, the Department of Social Services (“Centrelink”) granted the Applicant’s claim for a mobility allowance.  

12. On 21 December 2015, Centrelink issued a notice advising the Applicant that she would continue to receive Mobility Allowance until 26 March 2016.[1] On 29 March 2016, Centrelink issued a notice advising the Applicant that her obility Allowance had been cancelled from 29 March 2016[2] (Mobility Allowance to be referred to hereafter as “allowance”).

    [1] See T10.

    [2] See T11.

13. On 12 July 2016, the Applicant contacted Centrelink and advised she had changed courses and was continuing to study.[3] On 13 September 2016, the Applicant contacted Centrelink and specifically discussed the cancellation of the allowance.[4] It appears that Centrelink “apologised for [the] inconvenience” and invited the Applicant to reclaim the allowance.

    [3] See T20, page 64.

    [4] See T20, pages 63-64.

14. On 4 November 2016, the Applicant’s situation in relation to her allowance was reviewed by an Authorised Review Officer (“ARO”). The ARO set aside Centrelink’s decision to cancel the Applicant’s allowance, however, decided that the allowance could only be paid from 13 September 2016 pursuant to section 109 of the Social Security (Administration) Act 1999 (the Administration Act).

15. On 6 December 2016, the Applicant applied to the Administrative Appeals Tribunal for a review of Centrelink’s decision.

16. On 23 May 2017, the AAT first review affirmed Centrelink’s decision.

17. On 27 June 2017, the Applicant filed an application for review of the AAT first review decision.  

    Issue for determination

18. The issue before the Tribunal in this proceeding is from what date should the allowance be paid?  

    Uncontested matter

19. The Respondent accepts that the Applicant qualified for the allowance at the time it was cancelled by Centrelink. 

    Submissions on behalf of the Applicant

20. The Applicant’s submissions are summarised below. 

    (a)The mobility allowance should not have been cancelled as the appropriate documents had been lodged to change the Applicant’s study details.

    (b)An administrative error appears to have occurred which had resulted in inappropriate action which generated system letters which in fact were sent in error.

    (c)Centrelink failed to take the information provided and update their system.

    (d)The Applicant should not miss out on payments due to the error of Centrelink.

    (e)If the information had been correctly entered into the system, the Applicant would not have received cancellation letters.

    (f)The question should be was the Applicant entitled to receive the payment in that period.

21. The Applicant made the following further submissions:

    a)She did not receive the cancellation letter dated 29 March 2016.

    b)There is no evidence that the letter was ever sent by Centrelink.

    c)Without evidence of posting, Centrelink cannot rely on section 237 of the Administration Act or sections 28A and 29 of the Acts Interpretation Act 1901 to show that notice of the 29 March 2016 was “given”.

    d)In light of (a), (b) and (c), section 109(3) of the Administration Act applies.

    Submissions on behalf of the Respondent:

22. The Respondent’s submissions are summarised below.

    a)The Applicant was “given” notice dated 29 March 2016 in writing of Centrelink’s decision to cancel her allowance.

    b)The Applicant is considered to have received the notice if the requirements of section 237 of the Administration Act have been fulfilled. This applies even if the Applicant did not actually receive the notice.

    c)The Applicant failed to seek review of the decision outlined in the notice within 13 weeks of being given that decision. The first relevant contact made by the Applicant after 29 March 2016 was on 12 July 2016. 

    d)The decision of the ARO on 4 November 2016 was a favourable determination as defined by section108 of the Administration Act.

    e)Section 109 of the Administration Act outlines the applicable date of effect of a favourable determination depending on the circumstances of the situation.

    f)In this case the applicable subsection is (2). The favourable determination takes effect on the day on which the application for review is made.

    g)The Respondent takes a broad view of what constitutes a request for a review of a decision and accepts that the contact made by the Applicant with Centrelink on 12 July 2016 represents a request for review. 

    h)Pursuant to section 109(2) of the Administration Act the Applicant’s allowance is payable from 12 July 2016.

    i)The Applicant was “given” the notice, therefore the Tribunal should obviously apply section 109(2) as the section is clear and unambiguous.

23. The Tribunal notes that the Respondent’s submissions were not mistaken.

    Findings

24. The Tribunal has read all the material tendered and has considered all the submissions made by both parties.

25. The Tribunal is satisfied that:

    a)The requirements of section 237 of the Administration Act have been demonstrated and the Applicant is deemed to have been “given” the cancellation notice regardless of whether she actually received it.

    b)The Applicant failed to seek a review of the decision within 13 weeks of the notice.

    c)The Applicant first made relevant contact with Centrelink on 12 July 2016 and this date should be considered the date on which she requested a review of the decision dated 29 March 2016.

    d)The decision of the ARO was a favourable determination pursuant to section 108 of the Administration Act.

    e)Section 109(2) expressly states that in circumstances where a favourable determination has been made following a review but the application for review was made more than 13 weeks after the notice was given, the favourable determination takes effect on the date on which the application for review was made (that being 12 July 2016).   

26. Despite the prescribed and clear wording in the sub-sections of section 109 of the Administration Act, section 43(6) of the Administrative Appeals Tribunal Act1975, provides a general discretion to “otherwise order” in relation to the date on or from which the decision under review will take effect.  When this discretion should be exercised is not stipulated. An assessment of the facts and circumstances of each particular case is no doubt required.   

27. In this matter, the Tribunal is satisfied that:

    a)Centrelink inappropriately cancelled the Applicant’s mobility allowance on 29 March 2016;

    b)as at 29 March 2016, the Applicant qualified for the allowance;

    c)the allowance should not have been cancelled;

    d)the cancellation notice does not appear to have come to the attention of the Applicant;

    e)had the notice come to the Applicant’s attention, she would have responded to it.  It was clear from her evidence and submissions that she is intimately familiar with and regularly in contact with Centrelink;

    f)the Applicant had taken the necessary steps to ensure Centrelink had her up-to-date course/study information to demonstrate that she continued to qualify for the allowance; and;

    g)the cancellation occurred because Centrelink did not properly record the new details. 

    CONCLUSION

28. Taking into account the combination of the Tribunal’s findings outlined at paragraph 27 (a) to (f), the Tribunal is satisfied that the discretionary power pursuant to section 43(6) should be applied in this proceeding. In this matter, the Applicant was entitled to the allowance. The Respondent accepts that the Applicant qualified for the allowance at the time it was cancelled by Centrelink (namely 29 March 2016). This should be acted upon and the allowance should be paid from 29 March 2016.

    Decision

29. The decision of the AAT Tier 1 dated 23 May 2017 is set aside. In lieu of that decision, the Tribunal decides in substitution that the Applicant’s allowance be paid from 29 March 2016.

30.     I certify that the preceding 29 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Amy Wood, Member

[sgd].......................................................................

Associate

Dated:   7 June 2018

Date of hearing:	1 December 2017 & 6 April 2018
Applicant:	By telephone
Advocate for the Respondent:	Ms Ailsa Bramley, Department of Human Services