"SAAH" and Secretary, Department of Employment and Workplace Relations

[2006] AATA 170

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 170

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/262

GENERAL ADMINISTRATIVE  DIVISION		)
Re		“SAAH”

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date24 February 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Invalid Pension – pension cancelled upon request of applicant – subsequent events result in pension cancellation disadvantaging applicant – was suspension more appropriate course? – extent of Department’s obligations to anticipate future events – decision affirmed

Social Security Act 1947 s 168

Social Security (Administration) Act 1999 s 109, 129

REASONS FOR DECISION

24 February 2006   Senior Member L Hastwell  

1.      The applicant was a recipient of Invalid Pension (IP) when in December 1989 he advised the respondent, which was then known as the Department of Social Security (the Department), that he was about to commence full-time work.  The applicant subsequently signed a written statement requesting that his pension be cancelled, and on 5 January 1990 his IP was cancelled at his request.

2.      On 26 July 2005 the applicant requested a review of the decision of January 1990 to cancel his pension.  An Authorised Review Officer affirmed that decision on 11 August 2005, and the Social Security Appeals Tribunal (the SSAT) affirmed the decision on 14 September 2005.  The applicant now seeks review of the decision of the SSAT.

3. The relevant legislation is contained in s 168 of the Social Security Act 1947 (the 1947 Act) which provides as follows:

“168(1) Subject to subsection (2), if:

(a)having regard to any matter that affects the payment of a pension, benefit or allowance under this Act;

(b)by reason of the refusal or failure of any person to comply with a provision of this Act; or

(c)      for any other reason;

the Secretary determines that a pension, benefit or allowance should be cancelled or suspended, or that the rate of a pension, benefit or allowance is more than it should be, the Secretary may, by determination, cancel or suspend, or decrease the rate of, the pension, benefit or allowance with effect from the date of the determination or such later date as is specified in the determination.

…”

Section 129(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides:

“129(1)Subject to subsections (3) and (4), a person affected by:

(a)      a decision of an officer under the social security law; or

(c)a decision of an officer under the Farm Household Support Act 1992; or

(e)a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under section 96-2(7) of that Act;

may apply to the Secretary for review of the decision.”

Section 109 of the Administration Act provides:

“109(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.

109(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.

109(3) If:

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

(b)      the person is not given notice of the original decision; and

(c)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.

…”

issues

4.      The issues to be determined in this case are:

·Was the decision of 5 January 1990 to cancel the applicant’s IP correct?

·If that was not a correct decision, then what is the earliest date from which any favourable determination for the applicant can take effect?

the hearing

5.      The applicant represented himself at the hearing and gave evidence.  Subsequent to the hearing he provided the Tribunal with a report from Dr Kim Yong which the Tribunal had regard to in making its decision.  The T documents were received into evidence and the applicant submitted his statement dated 19 December 2005 as Exhibit A1.  Some additional documents provided by the applicant were received as Exhibit A2.

6.      The applicant’s case is summarised in Exhibit A1.

7.      The applicant told the Tribunal that he had approached Centrelink in December 1989 and advised that he was about to commence full-time work.  They advised him to apply for a cancellation of his IP, and so he requested they cancel it.  He now says that they should have refused his request and advised him that his pension could be suspended rather than cancelled. 

8.      At the time the applicant was on significant doses of medication, and had a history of disability.  He was adamant that the Department was aware of his circumstances.  He said that his communication with the Department was poor, that staff were not helpful and that he had a lot of clashes with various members of the Department at different times.  The Department were aware at the time of cancelling his IP that he had only worked for short periods in recent years.

9.      He said that when he went in to tell them that he was going to start a full-time job, it was suggested by a Departmental officer that he come off IP.  He claims that the option of suspension of his IP rather than cancellation was not put to him.  He accepted that advice at the time.  He agreed that he had signed a document (T7) that requests cancellation of his pension.

10.     He quickly found that he could not manage the job because it was physically difficult and he could not keep up with the paperwork.  He worked for a number of weeks, but found that he could not carry out the tasks of his employment.  He resigned and his pension was reinstated in March 1990.  He has been a recipient of a Disability Support Pension (which subsequently replaced IP) since that time.  He claims that when his pension was reinstated in March 1990, a Departmental officer acknowledged to him that it had been cancelled in error, and the woman he spoke to told him that it should have been suspended.  He was unable to provide any documentary proof of that discussion.

11.     The applicant asked the Tribunal to take his health problems into account. 

12.     The Department did not call any witnesses and relied upon evidence contained in the T documents, and in particular to the specific request made by the applicant that his IP be cancelled.  The Department also submitted that at the time that the decision was made to cancel the applicant’s IP, it was to his advantage as he became eligible for payment of Family Allowance Supplement (FAS) and was financially advantaged during the period that he was working.

findings of fact

13.     The Tribunal made the following findings of fact:

·The applicant was a recipient of IP when he telephoned the Department on 22 December 1989 (T5/16) to advise that he would be commencing full-time employment on 17 January 1990 for Hi-Speed Transport Pty Ltd at Port Wakefield Road, Virginia.

·That offer of employment was confirmed in a letter from Hi-Speed Transport (T6/17).

·On 29 December 1989 the Department ascertained that the applicant had been working for Hi-Speed Transport since 11 or 12 of December 1989 (T5).

·The applicant attended at the Department on 5 January 1990.  He had a discussion with a Departmental officer.  The applicant enquired as to eligibility for FAS, and was advised that if he had his IP cancelled he would be eligible for FAS.  The applicant decided to take this course and he signed a statement prepared by the officer (T7) in which he stated that he would be able to cope with full-time employment and he requested that his pension be cancelled.  The statement also indicated that his doctor had suggested that he come off IP.

·On the same day an examiner approved the cancellation and noted at T8 that the applicant had claimed FAS.

·The applicant was under ongoing medical treatment at the time.  He soon found that he could not manage the tasks of employment.  He was stood down to a lower position and then resigned the position.

·The applicant’s IP was reinstated from 15 March 1990.  The applicant did not challenge the decision to cancel at the time.  He applied for reinstatement of IP in March 1990 because his attempt to return to the workforce had not been successful.

·The applicant’s wife received a lump sum payment of compensation in 2005.  It is only in the context of a compensation claim by his wife, that it became relevant as to whether there had been an incorrect cancellation of the applicant’s pension between January and March 1990.   

consideration

14.     At the time that the applicant requested a cancellation of his IP in January 1990, it appears that it was to his financial benefit to do so as the family would then become eligible for FAS.  Several years later, after receiving a lump sum compensation payment, his wife faced a preclusion period as a result of the applicant’s IP being cancelled for a brief period.  The applicant now argues that, with the wisdom of hindsight, his pension should have been suspended, not cancelled.

15.     The Tribunal requested that the Department ascertain whether there were any policy directives in place in 1989 with respect to cancellation and suspension of IP when a recipient re-enters the workforce.  The Department went to some effort to locate such documents, but has been unable to find any relevant documentation.  This was advised to the Tribunal in a letter dated 2 February 2006, a copy of which was provided to the applicant.

16. The legislation as it applied at the time was straightforward. Under s 168(1)(c) of the 1947 Act a determination could be made that a pension could be cancelled “for any other reason”.  There is no further guidance in the 1947 Act as to what may constitute “for any other reason”.  The use of these words appears to confer a wide discretion to the Departmental officer to make a determination as to cancellation.

17.     The applicant does not dispute that he signed a document specifically requesting that his IP be cancelled.  The Tribunal accepts the evidence on the Departmental file and contained in the T documents that at the time it was done on the advice that it would be financially beneficial to his family if his pension was cancelled as he would then become eligible for FAS.  It appears that at the time he requested cancellation he had already been working for some weeks and at that point there was no reason to believe that the new position would not continue into the future.

18.     It is evident from the speed at which the applicant’s pension was reinstated when he ceased employment, that reinstatement was not a difficult process.  The Departmental officer giving the original advice about cancellation was probably aware that if his re-entry to the work force was unsuccessful, the applicant could be reinstated promptly on a pension. 

19.     In the context of the applicant’s desire to receive FAS and to maximise the financial benefit to his family at the time, the advice to cancel rather than suspend the IP appears to have been reasonable and sensible advice at the time.  The primary decision-maker could not possibly have anticipated that some 15 years later, a brief period of pension cancellation could impact on a compensation payment received by the applicant’s wife.

20.     The Tribunal can see no reason to set aside the primary decision to cancel pension.  It was within the discretion of the Departmental officer to do so.  The grounds existed at the time to do so.  The discretion is broad and a request by the recipient of a benefit to have IP cancelled is clearly within the broad category of “for any other reason” as set out in s 168(1)(c)) of the 1947 Act. There was evidence that the applicant had employment. The applicant was still a relatively young man at the time, and although he had a significant medical history it was quite reasonable that he would be endeavouring to get back into the workforce if at all possible. There was a prior history of him attempting to return to work from time to time since his injury of 1984. It was to his financial advantage at the time to have his pension cancelled.

21.     In this case, the applicant first telephoned the Department and then attended in person to discuss how his benefits should be dealt with in the context of his impending employment.  He suffered no disadvantage at the time as a result of cancellation with reinstatement occurring promptly when the job did not succeed.  He asks the Tribunal to now alter that decision, because many years later the fact of that brief period of cancellation has impacted on the way in which his wife’s compensation payments are to be treated by the Department. 

22.     The applicant is in effect suggesting that the Departmental officer should have been able to look into a crystal ball and predict events that were to occur many years later when advising him.  That is not a realistic or fair expectation of officers of the Department.

23.     In the Tribunal’s view, it is not open to the Tribunal to alter what was a fair and correct decision at the time, to accommodate a situation that has arisen many years later.  The applicant made no complaint whatsoever about the decision in 1990 until he realised it may now have some impact on his wife’s compensation payments. 

24.     The Tribunal appreciates that the applicant is suffering from significant health problems and is very depressed about his current situation.  Nevertheless, the Tribunal must focus on the material that was before the primary decision-maker at the time and the judgment that that primary decision-maker had to make. 

25.     In the circumstances the Tribunal affirms the decision of the SSAT.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........J Coulthard............................................
  Associate

Date of Hearing  20 December 2005
Date of Decision  24 February 2006
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Legal Services Branch