Rowe and Secretary, Department of Family and Community Services

[2004] AATA 1160

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)N2004/933 & N2004/106

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALLAN ROWE and LORRAINE ROWE

Applicant

And SECRETARY,  DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date8 November 2004

PlaceSydney

Decision The Tribunal affirms the decision to refuse the payment of arrears of allowances to the Applicants.

[SGD] Robin Hunt

Senior Member

CATCHWORDS

Social Security – qualification, payment of arrears of allowances and age pension – thirteen week rule – notification given – decision affirmed – offer of recompense for Applicant pursuant to CDDA scheme refused.

Legislation

Social Security (Administration) Act1999 ss78 and 109

Case Law

Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330

Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185

REASONS FOR DECISION

8 November 2004	Robin Hunt, Senior Member
summary

1.      The Tribunal had before it requests to review decisions of the Social Security Appeals Tribunal (SSAT) dated 10 December 2003 and 8 July 2004. The SSAT held that the Respondent should increase the amount of arrears of various Centrelink allowances paid to Mr and Mrs Rowe since 2000. However, the SSAT found that arrears should not be paid for some other periods as the Respondent had notified Mr and Mrs Rowe of decisions relating to those periods and Mr and Mrs Rowe had not sought review of those decisions within 13 weeks. Although the Respondent conceded that Mr and Mrs Rowe had not received their full entitlements for some additional periods, the SSAT found that the Respondent was not empowered to make further payments under the Social Security (Administration) Act1999 (the Act). The Tribunal has affirmed the decisions of the SSAT for the reasons set out below.   

background and the hearing

2.      The Respondent did not dispute that it incorrectly assessed Mr and Mrs Rowe’s entitlement to allowances from 2000 onwards when Mr and Mrs Rowe declared that they were receiving allocated pension payments. However, the Respondent refused to grant the payment of certain arrears on the basis that Mr and Mrs Rowe were not entitled to these arrears because they had applied for review of the decisions to preclude allowances payable outside the prescribed thirteen week period as allowed for by such an appeal (section 109 of the Social Security (Administration) Act1999).

3.      Mr McBriarty, who is related to Mr and Mrs Rowe and has represented them throughout the dispute with the Respondent and the various tiers of review, exchanged a great deal of correspondence with the Respondent as to their correct entitlements. The SSAT directed that certain arrears were payable at dates set out in the reasons for decision. Mr McBriarty contended they were still entitled to the rest of the arrears. Mr and Mrs Rowe were not duly notified of the erroneous calculations of entitlements as the letters sent to them contained incorrect information. He argued that these letters were not appropriate notification and that the 13 weeks specified under the Act for seeking review of these decisions did not therefore commence to run.

4.      The Respondent’s Facts and Contentions which are before the Tribunal set out the dates and calculations of which arrears could be paid. The Respondent has made payments for arrears that could be met under the Act and in accordance with the SSAT’s directions. The last remaining arrears are outside the period identified by the SSAT. These arrears do not total a large sum and the Respondent offered to pay this amount to Mr and Mrs Rowe under a special scheme for gratuitous discretionary payments. Mr McBriarty declined to come to a settlement in this manner and asked the Tribunal to make a decision.

5.      Mr McBriarty detailed at the hearing a long history of difficulties and complaints he said he had experienced at Centrelink in trying to assist his sister, Mrs Rowe, and her husband. He complained that even in the last few days they had suffered another miscalculation and unwarranted reduction in their allowances.  Mr McBriarty made representations to the effect that he had made numerous phone calls and enquiries to Centrelink about their entitlements but had not succeeded in getting clear answers. When he had finally been granted an interview, this had not given him the information and answers he needed. He alleged the letters from Centrelink setting out calculations of entitlements were so inaccurate that it was not possible to respond within 13 weeks as provided for under the Act. Mr McBriarty expressed to the Tribunal that the whole system of dealing with calculating adjustments to allowances, where allocated pensions and the like were involved, needed reform. He had hoped to trigger some changes through his actions.

findings and reasons

6. According to the documents before the Tribunal, Centrelink was first asked to review the entitlements of Mr and Mrs Rowe on or about 26 September 2002 when Mr McBriarty wrote a letter (T59, pp 257 and 258). The Tribunal notes that this letter does refer to a prior phone conversation and sets out discrepancies which Mr McBriarty found in the assessments for both Mr and Mrs Rowe. Therefore, the errors identified in this letter could be adjusted by Centrelink and arrears paid for the period back to 28 June 2002 only, this being the 13 weeks previous to Mr McBriarty’s letter. See section 109(1) of the Social Security (Administration) Act1999. However, there is no clear recorded date of any earlier complaint by the Applicants or by Mr McBriarty in documents or evidence given to the Tribunal.

7.      Centrelink made some further payments of arrears in conformity with the decision of the SSAT dated 10 December 2003, which found that arrears could be paid for some periods since 2000 where the Applicants had not been notified. On 16 January 2004, Centrelink implemented the first SSAT decision and paid arrears to the Applicants. On 15 and 16 April 2004, an authorised review officer (ARO) decided that the Applicants should be paid further arrears in relation to the incorrect assessments of the Applicant’s investments. Consequently, the Applicants lodged a further application for review of the ARO’s decision dated 16 April 2004. The Respondent at one stage offered a “customer compensation” payment, however, this did not take place. The SSAT examined a detailed submission made by Mr McBriarty and decided to affirm the ARO’s decision. Paragraph 31 of the SSAT’s reasons for decision sets out in detail the treatment of the claims for allowances and those for which further arrears could be paid because of deficiencies in notification.

8.      At the hearing, Mr McBriarty made no better information available to the Tribunal as to the claims already rejected by the SSAT as not meeting the requirements of section 109 of the Act. Section 109 determines the date from which a favourable determination made under section 78 takes effect, section 78 being the section that requires the Respondent to increase the rate paid if it has been paid at less than the correct rate. The Respondent has made the favourable adjustments adjusted back to the earliest possible date under section 109 by applying subsection 109(1) to the facts and increasing the rate for the 13 weeks prior to Mr McBriarty’s letter.

9.      Mr McBriarty argued that for the periods outside those conceded by the Respondent where no notification had been made as set out in the decisions of the SSAT, the Tribunal should find the letters notifying calculations of the allowances inadequate notice of the necessary information to Mr And Mrs Rowe. In this regard, I have relied on the judgments of the Federal Court in Austin v Secretary, Department of Family and Community Services(1999) 57 ALD 330 and Secretary, Department of Family and Community Services v Rogers(2000) 65 ALD 185 in finding that there is no obligation of the Respondent to do more than communicate the making of a decision. The Respondent does not have to explain the reasons for the decision although this would be desirable. The effect of a letter from the Respondent advising a particular rate triggers the opportunity for the recipient of the allowance to query the calculation and, if necessary, start a procedure to seek variation of the original decision. This entitlement is what sections 78 and 109 protect by giving the recipient the ability to obtain a correction.

10.     Unfortunately, in the present case, although Mr McBriarty has put a lot of effort into seeking a remedy for his sister and her husband and has in large measure been successful, his telephone conversations did not amount to an application for review of a decision and did not put this action in motion for the remaining arrears. The Respondent has tried to remedy this by offering a payment under the “Compensation for Detriment Caused by Defective Administration” (CDDA scheme). It is up to the parties whether to come to an agreement about the CDDA offer as it is not part of the Tribunal’s jurisdiction.

11.     The Tribunal must affirm the decisions made by the SAT on 10 December 2003 and 8 July 2004.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of Hearing                  1 November 2004
Date of Decision                 8 November 2004
Representatives for the Applicants            Mr McBriarty
Representative for the Respondent          Ms Schuster