Rosemary Bays and Secretary, Department of Education, Employment and Workplace Relations

[2013] AATA 590

[2013] AATA 590 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4837
Re	Rosemary Bays
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	22 August 2013
Place	Brisbane

The decision under review is set aside. In substitution the Tribunal finds the applicant is to be paid widow allowance arrears from 7 January 2011, and the matter is remitted to Centrelink to assess the amount of arrears owed to the applicant.

..........................[SGD]....................................

Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Widow Allowance – Entitlement to Arrears – Determining correct date of effect – Application for review – Decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) ss 109, 66A

CASES

Re Frost and Secretary, Department of Social Security [1995] AATA 228

REASONS FOR DECISION

Dr M Denovan, Member

22 August 2013 

INTRODUCTION

1. Mrs Bays was in receipt of widow allowance when she sold her house in Maleny and deposited the proceeds of that sale into her bank account. She notified Centrelink that she had $235,000 in her bank account,[1] and her allowance was reduced accordingly.

   [1] Exhibit 1, T-Document 9, p. 122.

2. Mrs Bays bought a house in Bali. On 14 December 2009, Mrs Bays used funds in her bank account to finance the purchase and at later dates withdrew more of her funds to finance renovation of that property. Mrs Bays did not inform Centrelink that she had used the funds in her bank account, and consequently she continued to be assessed as having $235,000 in the bank.

3. On 8 March 2011, Mrs Bays attended a portability interview, and informed Centrelink she was going overseas and would be selling her property in Bali.[2]

   [2] Exhibit 1, T-Document 9, p. 118.

4. On 16 April 2012, Mrs Bays queried her rate of payment.[3] On 30 April 2012, Centrelink made a decision to increase Mrs Bays’ rate of payment with effect from 1 January 2012.

   [3] Exhibit 1, T-Document 9, p. 113.

5. Mrs Bays was unhappy with that decision. She believed the increase should have been backdated to the date that she spent the money. She appealed the decision and an Authorised Review Officer (“ARO”) set aside the decision and decided that arrears should be paid from 7 January 2011. The ARO decided that Mrs Bays’ advice on

   
   

   8 March 2011 that she was going overseas to sell her property in Bali was a request for review.

6. Mrs Bays appealed to the Social Security Appeals Tribunal (“SSAT”). The SSAT set aside the decision and substituted a decision that Mrs Bays was entitled to arrears of widow allowance from 27 January 2012, and no earlier.

7. Mrs Bays seeks a review of that decision. She still believes she is entitled to arrears of widow allowance from the time she used the funds in her bank account, in

   
   

   December 2009. The Respondent seeks to have the decision of the SSAT affirmed.

   LEGISLATION AND ISSUES

8. The legislation relevant to this application is contained in the Social Security Act 1991 (Cth) (“the Act”), and the Social Security (Administration) Act 1999 (“the Administration Act”).

9. It is not in dispute that Mrs Bays is entitled to an arrears payment. When a “favourable determination” is made, that is a decision that the rate of a person’s payment is to be increased, the date of effect of that decision is governed by s 109 of the Administration Act.

10. Subsections 109(1) and (2) provide:

    (1)  If: 

    (a) a decision (the original decision) is made in relation to a person’s social security payment; 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.

    (2)  If: 

    (a) a decision (the original decision) is made in relation to a person’s 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.

11. There is no discretion in the Act to backdate arrears any further than provided by s 109 of the Administration Act.

12. The issue that I must determine is from what date should the increase in Mrs Bays’ widow allowance have effect.

    TRIBUNAL’S FINDING

    What date is the earliest Mrs Bays’ arrears of widow’s allowance can be backdated to?

13. Mrs Bays argues that although she did not specifically request a review of her rate of payment prior to 16 April 2012, she had on multiple occasions complained to Centrelink staff that she was not receiving enough money. She told them she was struggling and asked how people are supposed to live on the amount of money she receives. She claims that in response to her complaints Centrelink staff should have reviewed her situation and, had they done so, would have discovered that she was being assessed at a reduced rate because Centrelink records indicated her bank balance was higher than it really was.

14. Mrs Bays told me that she informed Centrelink that she had purchased a property in Bali. She contended that Centrelink should have realised that her bank balance must have depleted at that point.

15. Mr Hamilton, for the respondent, contends Mrs Bays was responsible for keeping Centrelink informed about how much money she has on the bank. He pointed out that Mrs Bays received many letters from Centrelink that outlined the income and assets information held by Centrelink prior to April 2012.[4] Mrs Bays’ response was that she is not good with paper work, and has moved around a lot. She accepted that she kept Centrelink informed about all her moves, and she would have received some if not all of the correspondence.

    [4] These include letters dated 8 March 2011, 7 April 2011, 9 May 2011, 20 January 2012, 14 February 2012 and 28 February 2012.

16. The Tribunal has in a number of decisions taken a broad view of what ought to be taken as to constitute an application for review. Questions, queries or expressions of dissatisfaction over a result have been regarded as a request for a review in certain circumstances. These cases relate to decisions where the department has committed some form of error, and do not apply where there is no information provided with which to provide a review.

17. In Re Frost and Secretary, Department of Social Security,[5] an applicant applied for carer pension and provided details of the rent she paid. She was granted carer pension but not rent assistance. The applicant enquired about the rate, but was given inaccurate information. In that matter the Tribunal rejected a departmental submission that the applicant’s inquiry was merely a query as to the rate of pension. The Tribunal rejected the notion that an applicant forfeited his or her entitlements by failing to specifically ask for a ‘review’.

    [5] [1995] AATA 228.

18. Mrs Bays told me she recalls attending a portability interview on 8 March 2011. She stated that she told the Centrelink officer that she was struggling to cope on her allowance; she asked how anyone was capable of living on such a small payment, and applied for an advance payment. An advance payment of $500 was granted prior to her departure. Prior to granting that advance payment, Mrs Bays argues, quite reasonably in my opinion, that Centrelink should have reviewed her circumstances and questioned her further about the money Centrelink records indicated she had in her bank account at this point in time.

19. The ARO concluded that Mrs Bays had in effect asked for a review of her widows’ allowance at this portability interview.

20. I found Mrs Bays to be a genuine person and credible witness. I accept that Mrs Bays has a reasonably accurate recollection of the matters she discussed with Centrelink on

    
    

    8 March 2011 at the portability interview, because she was going overseas for the purpose of selling her only asset, and this was an extremely significant and distressing point in her life.

21. Centrelink records confirm that Mrs Bays advised she was going overseas to sell her house in Bali. Records indicate she was granted an advance payment at this time.

22. I agree with the ARO that when Mrs Bays provided information about her property in Bali the officer should have checked that a property was already coded. Had the matter being appropriately followed up at this time, questions about where the money to purchase the property came from could have been asked, and an accurate record of

    
    

    Mrs Bays’ financial situation would have been made.

23. Mr Hamilton for the Respondent accepts that the portability interview was an appropriate time for Centrelink to conduct a general review of Mrs Bays’ eligibility for past, and future benefits and allowances before she departed overseas.

24. Whilst I found her to be a sincere woman and a credible witness, I did find Mrs Bays to have a very inaccurate memory of dates, and also became confused easily. She was unable to specifically state when she first told Centrelink she had purchased a property in Bali, or when she first raised her concerns about her low rate of widow payment with Centrelink. Mrs Bays claimed she was entitled to rent assistance after she sold her house, but was not granted it until relatively recently. She claims that Centrelink should have realised she was entitled to rent assistance when she told them she had sold her house, and paid her from an earlier date. Whilst I am not considering that matter, it is relevant because it confirms Mrs Bays has difficulty recalling dates and specific conversations with Centrelink. Centrelink records indicate that the issue of rent assistance had been discussed with Mrs Bays on many occasions, as early as 31 May 2010, only a few months after Mrs Bays notified Centrelink that she had sold her house. Mrs Bays had no recollection of those discussions with Centrelink.

25. There is no record of Mrs Bays advising Centrelink that she bought a house in Bali, or of her complaining about her rate of allowance prior to 8 March 2011. After considering all of the evidence, I find that the first time Mrs Bays raised the issue of her widow allowance with Centrelink in a manner that should have been regarded as a request for a review was on 8 March 2011. I find that is also the first time she advised Centrelink that she had purchased a property in Bali.

26. Taking into account all of the evidence, I am satisfied that on 8 March 2011, after

    
    

    Mrs Bays informed Centrelink she was going overseas to sell her house, she made enquires and expressed concern about her rate of allowance, which should have been interpreted by any reasonable person as a request for review of her social security payments.

27. The most recent rate notice sent, prior to Mrs Bays’ portability interview was

    
    

    7 January 2011. As Mrs Bays portability interview was within 13 weeks of that notice, her widow allowance arrears can be paid from 7 January 2011. This is same date the ARO found was appropriate to back date arrears to. Mrs Bays was not happy with that decision, she wanted arrears backdated to when she actually spent the money.

28. There is a requirement that a person in receipt of payment notify Centrelink of any changes to their circumstances. Section 66A of the Administration Act requires a person to notify the Department of any changes to circumstances that might affect the payment of a social security benefit within 14 days of that change. Mrs Bays, not Centrelink, was responsible for keeping Centrelink informed about her diminishing assets. Had she contacted Centrelink after she spent the money, her rate of payment would have increased from that time. Unfortunately Mrs Bays was unaware she needed to specifically inform Centrelink of the reduced amount of her bank balance. Centrelink had no obligation to enquire about Mrs Bays’ bank account balance until the date of her portability interview when she mentioned she owned property in Bali. As explained above, the Act places limits on how far back the date of arrears can be calculated when a favourable decision is made. It is not possible to calculate arrears in her payments from a date the money was withdrawn from her account.

    DECISION

29. The decision under review is set aside. In substitution the Tribunal finds that Mrs Bays is to be paid widow allowance arrears from 7 January 2011, and the matter is remitted to Centrelink to assess the amount of arrears owed to Mrs Bays.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

............................[SGD].........................................

Associate

Dated 22 August 2013

Date of hearing	1 August 2013
Applicant	In person
Advocate for the Respondent	Mr Bob Hamilton, Departmental Advocate