Rosa and Secretary, Department of Family and Community Services - [2005] AATA 508

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 508

ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/1312

GENERAL ADMINISTRATIVE DIVISION

Re: JOZEFA ROSA
Applicant

And:SECRETARY,
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 1 June 2005

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

SOCIAL SECURITY - age pension - suspension - failure to comply with notice requiring applicant to give information - whether notice of decision to suspend given to applicant – failure to seek review within thirteen weeks of notice

Social Security Act 1991 s 23(12)

Social Security (Administration) Act 1999 ss 81(1), 85, 109(2), 237

Re O’Connell and Secretary, Department of Social Security (1991) 23 ALD 408

REASONS FOR DECISION

1 June 2005 G.D. Friedman, Member

This is an application by Jozefa Rosa (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 13 October 2004. The SSAT set aside a decision of an authorised review officer of Centrelink dated 2 September 2004 to suspend the applicant’s age pension from 1 January 2002, but remitted the matter to Centrelink with a direction that age pension be restored from 25 March 2004. On 1 April 2004 the applicant lodged a new claim for age pension before the SSAT hearing concluded. Payments were reinstated from 25 March 2004 and consequently the SSAT decision had no effect on the applicant's age pension payments.
At the hearing on 15 April 2005 and 6 May 2005 Mr I. Cunliffe, solicitor, represented the applicant, assisted by an interpreter in the Polish language. Mr W. Zita, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).
The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T36) and one exhibit (Exhibit R1) tendered on behalf of the respondent.

BACKGROUND

The applicant was granted age pension in 1989. Due to proposed legislative changes to the way private trusts and private companies were to be treated under the income and assets tests, in 2001 Centrelink asked customers involved with trusts or private companies to provide information to assist in determining the effect of the new regulations on social security entitlements.
The applicant was identified as having an involvement with a company called Stabiss Holdings Pty Ltd (Stabiss); and on 31 January 2001 Centrelink sent her a letter requesting further information regarding her involvement. On 23 April 2001 the applicant returned a declaration stating that she was no longer involved with Stabiss. On 11 May 2001 further information was sought from the applicant, and when no reply was received Centrelink sent a reminder on 6 September 2001, with a warning that her pension may be suspended if the information was not provided.
On 21 September 2001 the applicant’s daughter contacted Centrelink and was informed about the information required by Centrelink. No further information was provided, and on 22 December 2001 Centrelink sent a letter (the December letter) to the applicant informing her that her age pension had been suspended because she had not replied to the trust and company letter it had sent to her. Centrelink also advised her that if she did not seek review of the decision within 13 weeks of the notice, any resumption of pension payments would be applicable from the date of the request for review.
On 25 March 2004 the applicant’s son contacted Centrelink to find out why the applicant’s pension payments had ceased. The applicant made a new claim for age pension on 1 April 2004. Pension was granted again from 25 March 2004. On 2 September 2004 an authorised review officer affirmed the decision to suspend the applicant’s age pension.
On 20 September 2004 the applicant sought review by the SSAT of the decision to suspend payments. Following the SSAT decision, the applicant lodged an application with the Tribunal on 6 December 2004 seeking review of the decision.
The issues before the Tribunal are whether the applicant’s age pension should be suspended, and if so, the date on which payments should resume.

EVIDENCE

In oral evidence the applicant said that she had no knowledge of her daughter’s business arrangements and only participated as a signatory to Stabiss' documents at her daughter’s request, after the death of her son-in-law in 2001.
The applicant explained that she does not understand English and normally gives all Centrelink correspondence to her son or daughter; although she deals with other correspondence and pays her own bills. She said that she had no recollection of receiving the December letter, even though she has located all other correspondence from Centrelink. She told the Tribunal that she did not know that her pension had been suspended until March 2004, when she attempted to withdraw $300 in cash from an automatic teller machine (ATM) but her account had insufficient funds. She stated that from early 2002, she noticed from ATM receipts that her balance was decreasing at a rate that was higher than normal, and that there appeared to be funds missing.
Under cross-examination the applicant said that she told her children a number of times about her concerns regarding her bank balance, but they were busy and did not do anything to resolve the problem. She said that she received bank statements but did not understand them.
In a statutory declaration dated 12 October 2004 (T33) the applicant said that she shares a house with her estranged husband, but they occupy separate living areas. She stated that he is an alcoholic and is becoming more and more disruptive and violent, to the extent that police have been called on numerous occasions to calm him down. She indicated that he might have interfered with her mail on some occasions.
Ms A. Rosa, the applicant’s daughter, gave oral evidence that her husband had been a director of Stabiss. She said that, under the corporations law at the time of his death, she was required to appoint a second director, so she appointed the applicant, although the applicant had no knowledge of, or involvement in, the company. Ms Rosa confirmed that she contacted Centrelink on 21 September 2001, and said that she provided her accountant’s contact details and believed that Centrelink would seek further information from the accountant, if required.
Ms Rosa said that she has a close relationship with the applicant and helps with financial matters whenever she is asked, although the applicant is capable of paying normal household bills. She told the Tribunal that the applicant usually shows her any letters received from Centrelink, and she replies on the applicant’s behalf as required. Ms Rosa said that searches have failed to locate the December letter, although all other correspondence has been found. Ms Rosa stated that she would have taken immediate action if the letter was received by the applicant, or if she had become aware that the applicant’s pension had been suspended. She suggested that her father might have interfered with the mail, and said that because of these and other problems in about 2000 or 2001, the family had requested Centrelink to forward the applicant’s mail to her or to her brother; but this had not occurred.
Under cross-examination Ms Rosa agreed that the request to forward the applicant’s mail only applied to Centrelink correspondence. She also agreed that the applicant told her and her brother about discrepancies in the applicant’s bank account from early 2002 and showed her relevant bank statements, but she was busy and had a number of personal and business issues to deal with at the time, so she did not investigate the applicant’s concerns until March 2004.

CONSIDERATION OF THE ISSUES

The legislation applying in this matter is the Social Security (Administration) Act 1999 (the Administration Act), which came into effect in 2000 and deals with general provisions in regard to the different categories of payments made under the Social Security Act 1991 (the Social Security Act). These include claims, notices, decisions made about dates of effect, and decisions about cancellations and suspension. Section 81 of the Administration Act provides:
81.(1) If:
(a)a person who is receiving a social security payment (other than a newstart allowance) has been given:
(i)…
(ii)a notice embodying a requirement under Division 1 of Part 5; and
(b)the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended.

Section 85 of the Administration Act provides:

85.(1) If:
(a)a social security payment ceases to be payable to a person under section 93 or the Secretary cancels or suspends a person’s social security payment under section 80, 81 or 82; and

(b) the Secretary reconsiders the decision; and
(c)as a result of the reconsideration, the Secretary is satisfied that, because of the decision:
(i)the person did not receive a social security payment that was payable to the person; or
(ii)the person is not receiving a social security payment that is payable to the person;

the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.

Section 109 of the Administration Act allows for different dates of effect for a favourable determination made under s 85. The dates depend on findings about whether the person received notice of the decision under s 81 of the Administration Act, and on whether review was sought within the statutory time frame of 13 weeks.
Section 237 of the Administration Act provides:
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)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes 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 the ordinary course of the post unless the contrary is proved.
237.(4)     …
Section 23 of the Social Security Act provides:
23.(12) If:
(a)section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Mr Cunliffe submitted that the Tribunal should accept the evidence of the applicant and Ms Rosa and find that the December letter was not received by the applicant. He said that, under s 237(1)(c) of the Administration Act, there is proof that no notice of the decision contained in the December letter was given to the applicant. He said the letter was not sent to the applicant’s last known address because Centrelink had been requested to send the applicant’s mail to her children. He submitted that, consequently, the suspension of the applicant’s pension was not lawful.
In the alternative Mr Cunliffe submitted that the discretion in s 81 of the Administration Act should be exercised in the applicant’s favour; and stated that the Tribunal should consider the wider circumstances of the matter as outlined by Deputy President Johnston in Re O’Connell and Secretary, Department of Social Security (1991) 23 ALD 408. Mr Cunliffe noted that the applicant played no active role in Stabiss, she had co-operated with Centrelink and did not intend to deceive Centrelink. He also referred to the explanation by Ms Rosa of the difficulties faced by the family, the applicant’s poor knowledge of the English language and the reasonable explanation for the failure by family members to appreciate that the applicant’s age pension had been suspended.
Mr Zita submitted that the notice of suspension of age pension had been given correctly to the applicant, at her last known address, in accordance with s 237(1)(c) of the Administration Act; and under s 23(12) of the Social Security Act notice should be taken to be given even if not received by the applicant. He said that unless the contrary is proved, s 237(3) refers to delays in the post, and is not applicable in this case. Mr Zita stated that the applicant had not sought review in the 13‑week period from the date of the decision to suspend the applicant’s age pension. Therefore, under s 109(2) of the Administration Act, the date of effect of making a favourable determination on review of the decision to suspend the age pension is the date that the applicant sought review.
In respect of the discretion under s 81 of the Administration Act, Mr Zita submitted that the applicant had failed to comply with a request to provide information to determine her continuing eligibility for age pension, so suspension of her payments was appropriate, and the discretion should not be exercised.
The Tribunal reached its decision taking into account the oral and written evidence and submissions made at the hearing.
The Tribunal accepts that the applicant has a poor knowledge of the English language and that she seeks the advice of her children whenever she has difficulty understanding correspondence, although she is able to pay household bills and deal with routine matters that are addressed to her.
On the material provided the Tribunal does not accept that the applicant made any formal request, or that any formal request was made on her behalf, to Centrelink, before March 2004, for correspondence from Centrelink to be sent to either of her children. For this reason, the Tribunal finds that the December letter was addressed correctly by Centrelink and was sent by prepaid post to her last known postal address (s 237(1)(c) of the Administration Act) and notice of the decision to suspend the applicant’s age pension was properly given to her (s 237(2) of the Administration Act).
The Tribunal notes that the applicant has retained correspondence received from Centrelink and has no recollection of receiving the December letter. Nevertheless, the Tribunal accepts the applicant’s evidence that other mail from Centrelink has reached her and there is no persuasive evidence that the December letter was removed by the applicant’s husband or anyone else, or was otherwise prevented from reaching the applicant. For these reasons, together with the provisions of s 23(12) of the Social Security Act, the Tribunal does not accept the submission from Mr Cunliffe that the phrase unless the contrary is proved is applicable. The Tribunal finds that notice of the decision is taken to have been given in accordance with s 237(3) of the Administration Act.
In respect of the discretion in s 81(1) of the Administration Act, the Tribunal accepts that the applicant did not play an active role in Stabiss and had no intention of deceiving Centrelink. The Tribunal also accepts the frank evidence that in 2001 and 2002 Ms Rosa had to deal with a number of personal issues. However, even if the wider circumstances of the matter are considered, the applicant had been receiving bank statements and had been capable of paying her household accounts.
The applicant identified concerns about her bank account in early 2002 and had ample opportunity before March 2004 to address these concerns with her bank, or to seek assistance from Centrelink or other government authorities about her age pension payments. The applicant brought the matter to her children’s notice several times, but they did not give sufficient or adequate attention to her concerns until March 2004. On balance, the Tribunal accepts the submission from Mr Zita that the discretion in s 81(1) of the Administration Act should not be exercised in the applicant’s favour.
In respect of the date of effect of the resumption of age pension, the Tribunal finds that the applicant did not seek review of the decision to suspend her pension within the 13 weeks allowed after a notice of a decision was given. Under s 109(2) of the Administration Act, the date of effect of the favourable determination is the date the applicant sought review of the decision, which is 25 March 2004.

DECISION

The Tribunal affirms the decision under review.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd) Catherine Thomas
Clerk

Date of hearing: 15 April 2005
6 May 2005

Date of decision:  1 June 2005
Advocate for the applicant:          Mr I. Cunliffe, solicitor
Solicitor for the applicant:            Norton White
Advocate for the respondent:       Mr W. Zita, Centrelink