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

[2021] AATA 12

Ryan and Secretary, Department of Social Services (Social services second review) [2021] AATA 12 (14 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3359

Re:Anne Ryan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:14 January 2021

Place:Sydney

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – rate – whether Applicant paid at the correct rate – whether Applicant reported change of circumstances – whether there was administrative error by the Respondent – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 1064, 1191

Social Security (Administration) Act 1999 (Cth) ss 68, 109, 110

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

14 January 2021

Introduction

1. The Applicant, Mrs Ryan, discovered in early January 2019 that in relation to her Disability Support Pension (DSP) payment, Centrelink had been including in its calculation of her income the amount of $213,500 which had not been in her Commonwealth Bank account (the bank account) since early November 2015.  The effect of the reviewable decision was that the rate of her DSP was increased from 11 January 2019.  She argued that it should be increased from about 30 November 2015 when she says she provided Centrelink with details of the balance of that account.

2. The decision under review was made by the Social Services and Child Support Division of the Tribunal on 1 May 2020 (AAT1).  AAT1 affirmed the decision made on 10 September 2019 by an Authorised Review Officer (ARO) of the Department of Human Services (the Department) that the rate of Mrs Ryan’s DSP be increased from 11 January 2019.[1]  The ARO decision had changed the original decision made on 5 February 2019 which decided the increase should start on 5 February 2019. Mrs Ryan received back payment for the period 11 January 2019 to 4 February 2019 after the ARO decision was issued.

   [1] The Department is now known as Services Australia.

   How did Mrs Ryan’s situation arise?

3. Mrs Ryan was granted DSP on 15 June 2011 and continues to receive payments. The dispute arose as a result of the sale of her house in 2015.

4. On 25 May 2015, Mrs Ryan advised the Department that she had sold her principal place of residence but continued living in the property under a rental agreement with the new owners (the Queensland property).[2] She also advised that the balance of her bank account was $219,000.00.[3]  Her customer record was updated accordingly.

   [2] T9/85.

   [3] T9/84.

5. On 5 June 2015, the balance of the bank account was updated to $213,348.00.[4]  

   [4] T11/148.

6. On 30 November 2015, Mrs Ryan advised the Department that she had bought a new home (the New South Wales property), would be moving in on 12 December 2015 and “bank account amounts have changed”.[5]  The purchase was completed on 4 November 2015.[6] 

   [5] T9/86.

   [6] T4/49; T5/55.

7. No updates were made of the bank balances in Mrs Ryan’s customer record at that time and the Department claimed it had no record of receiving any documentary evidence demonstrating the new bank account amount at that time.[7]

   [7] T9/91.

8. In a rent certificate dated 11 January 2016, Mrs Ryan advised the Department that she was renting accommodation for 12 months because her home was unliveable, having no roof.[8] The rental accommodation was located near the New South Wales property.

   [8] T4/46.

9. According to Centrelink records, on 20 October 2016, Mrs Ryan provided documents to the Department including documents relating to the purchase of the NSW property.[9]  They included an answer in the Real estate details form (MOD R) at question 32 that $213,500 was owed for the purchase.[10]  Answer 36 in the form states that the roof was partially lost in a storm. The handwritten date on the form was 11 January 2016. An NAB statement for the period 3 to 26 November 2015 was included which showed a debit balance of $213,500.[11]

   [9] T4/45-51; T5/52-60.

   [10] T4/58.

   [11] T4/50.

10. Mrs Ryan told the ARO in a telephone conversation on 6 September 2019 that she had notified the Department in November 2015 that they had bought a new home and recalled going into the local office with her husband at Port Macquarie and providing bank statements and a lease agreement and advising the staff member of their circumstances. She left the Port Macquarie office with the impression that everything had been updated correctly.  She gave a similar account in her application to the Tribunal and during the hearing.

11. On 16 February 2017 she advised the Department of a change of address, to that of the NSW property.[12]  The Department’s records were annotated on 1 May 2017 to remove that property as the asset was no longer assessable as it was the principal home from 30 January 2017 when she began to reside in the NSW property.[13]

    [12] T9/87.

    [13] T9/87.

12. During discussions with Centrelink about Farm Assistance Allowance in January 2019, Mrs Ryan became aware that Centrelink had continued calculating her income on the recorded balance of the Commonwealth Bank account. On 11 January 2019, Mrs Ryan’s husband contacted Centrelink about it. 

13. On 5 February 2019 Mrs Ryan provided to the Department Commonwealth Bank statements for the period 31 March 2015 to 30 June 2015 and from 1 October 2015 to 30 March 2016.[14] They showed a deposit of $224,090.26 on 18 May 2015.  Thereafter the balance reduced until it was $16,588.07 on 4 November 2015 and $316.94 on 30 March 2016.   

    [14] T6/61-76.

14. On 5 February 2019, the Department decided to increase the rate of DSP paid to Mrs Ryan with effect on the same day. On 8 March 2019, Mrs Ryan requested a reassessment of the rate which resulted in the ARO deciding to increase her rate of DSP with effect from 11 January 2019 and no earlier because Mrs Ryan had not requested a review of the rate of DSP within 13 weeks of the most recent notice issued to her. The ARO took the contact with Mrs Ryan’s husband on 11 January 2019 to be a request for reassessment.

15. On 14 June 2016,[15] 16 February 2017,[16] 29 August 2018[17] and 5 February 2019[18] the Department issued notices to Mrs Ryan addressed to her New South Wales property advising her of her rate of DSP. Those notices included the following passage: 

    If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

    [15] T13/211-213.

    [16] T13/222-224.

    [17] T13/230-232.

    [18] T13/240-245.

    The regulatory framework

16. Section 1064 of the Social Security Act 1991 (Cth) (the SS Act) sets out the method for calculating a person’s DSP rate. The rate of DSP payment is calculated under both an assets and income test. The test that results in the lower rate will apply.

17. Section 68 of the of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that the Secretary may give a person to whom the section applies, a notice requiring the person to inform the Department of various matters, including a change of circumstances.

18. Section 110(1) of the Administration Act provides that if a favourable determination is made following a person having informed the Department of a change in circumstances that would increase their rate of payment, the payment will be increased from the date of notification or the date of change in circumstances, whichever is the later.

19. Section 109 of the Administration Act sets out the date of effect of a favourable determination resulting from a review of a decision. Relevantly, it provides:

    (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.

    …

    (7) For the purposes of this section, if:

    (a) the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and

    (b) the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;

    then:

    (c) each person whose rate of social security payment is, or was, affected by the determination is taken to have been given notice of the determination and of the increased rate; and

    (d) the notice is taken to have been given on the day on which the amount was so indexed or adjusted.

20. Section 1191 of the SS Act prescribes that the maximum basic rates of pensions are varied due to indexation based on the Consumer Price Index (CPI) on 20 March and 20 September each year.

    Consideration

21. The Respondent accepts that based on the information provided on 5 February 2019, Mrs Ryan was paid a lower rate of DSP than that to which she was entitled during the period in dispute but contended that s 109(2) of the Administration Act does not allow an increased rate of DSP to take effect from any date earlier than 11 January 2019.

22. Despite there being no record of Commonwealth Bank account statements being provided to Centrelink before 5 February 2019, I accept Mrs Ryan’s evidence that she did provide  details of the balance in the period November 2015 to January 2016 which Centrelink failed to enter in its records with the consequence that she did not receive the rate of DSP to which she was entitled thereafter until January 2019. She notified Centrelink of her change of circumstances which required Centrelink to make a favourable decision and increase her rate of DSP.  I am not persuaded that because there is no Commonwealth Bank account statement in the Centrelink records before 5 February 2019, I should not accept her evidence.  I found Mrs Ryan to be an honest witness.  The Respondent did not claim that she was not credible.

23. I infer that the records Centrelink recorded as being provided on “20.10.2016”[19] were in fact provided on 20.01.2016 and the entry was a typing error.

    [19] T4/45; T5/52.

24. Mrs Ryan believed that a Centrelink record showed that she had provided details to Centrelink  in November 2015 to January 2016.[20]  I have carefully looked at that record and note that the “calculation date” is 5 February 2019 and it was “Enq: PTR” which I understand to be reference to an inquiry made by her husband Mr Ryan which occurred in January 2019.

    [20] T11/147.

25. I raised with the Respondent’s legal representative an argument that no decision had been made in respect of Mrs Ryan’s change of circumstances in November 2015 to January 2016 until 5 February 2019 and therefore s 110 of the Administration Act would operate so that arrears would be paid from when she notified Centrelink of that change at the end of 2015/beginning of 2016.

26. I accept his argument that each of the decisions made on 14 June 2016, 16 February 2017, 29 August 2018 and 5 February 2019 referred to at [15] above related to the rate of payment of DSP. The notice of each of those decisions included the paragraph quoted at [15] above, about the requirement to seek review of the decision within 13 weeks, as did a notice dated 22 June 2015 which was sent to the Queensland address.[21]  Centrelink recorded Mrs Ryan’s address to be the rental property from 20 December 2015 to 30 January 2017 and thereafter the address was the NSW property.[22] Assuming that she did not receive notification of the 14 June 2016 decision which was addressed to the NSW property, I am satisfied that she received the later decisions. Mrs Ryan did not seek review of any of the decisions within the 13 week period. She claimed that she was unaware of that requirement.  She may never have read the notice in its entirety, but that does not overcome the difficulty.

    [21] T13/175.

    [22] T10/104.

27. It is unfortunate for Mrs Ryan that the amount of the DSP payments she received after she had provided the details of her change of circumstances in November 2015 did not cause her to question Centrelink.

28. In my view, the legislation has the effect contended for by the Respondent.

29. Mrs Ryan is very angry and frustrated about her situation.  She believes that she has done everything that was required of her and is very dissatisfied with Centrelink.  As a Conference Registrar of the Tribunal has already advised her, she may apply to the Scheme for Compensation for Detriment caused by Defective Administration.

30. For the above reasons, the reviewable decision is affirmed.

    DECISION

31. The reviewable decision is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 14 January 2021

Date(s) of hearing:	13 January 2021
Applicant:	By telephone
Solicitors for the Respondent:	Mr M Sheedy, Services Australia