SECRETARY, DEPARTMENT OF FAMILIES,LOUCH and HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 295

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2011/0118

GENERAL ADMINISTRATIVE DIVISION		)
Re		BETTY-LORRAINE LOUCH

Applicant

And

SECRETARY,

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Brigadier C. Emert (Retd), Member

Date5 May 2011

PlaceMelbourne

Decision The Tribunal affirms the decision made by Centrelink on 19 January 2011 that the increase in Mrs Louch’s pension payments takes effect from 18 June 2010.

…………[signed]…………

Member

SOCIAL SECURITY – receipt of age pension – purchase of property – pension payment decreased from application of asset test – incorrect record of asset ownership – request for review received more than 13 weeks after original decision – decision under review affirmed

Administrative Appeals Tribunal Act 1975 ss 34J, 37

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

REASONS FOR DECISION

5 May 2011  Mr C. Ermert, Member

INTRODUCTION

1.      Mrs Betty-Lorraine Louch, the applicant in this case, has been receiving an age pension since 8 March 2001.  On 1 December 2009 Mrs Louch advised Centrelink that she had purchased a property in Metung (the Property).  Centrelink is the service agency for the Department of Families, Housing, Community Services and Indigenous Affairs.  She completed and submitted to Centrelink a Mod R Real Estate form, in which she incorrectly advised that she owned 100% of the Property.  At the same time, Mrs Louch provided a copy of the title, which showed that the Property was jointly owned with her son, Adam Leslie Louch.  Centrelink did not notice the disparity in the advice of the ownership of the Property at the time.  Based on the information provided in the Mod R form, Centrelink reduced Mrs Louch’s pension payments because of her increased assets.

2.      Despite numerous notifications from Centrelink, which showed the level of assets it used to determine her payments, Mrs Louch did not become aware that the value of the Property was being assessed incorrectly, on the basis of her sole ownership.  It was not until 13 September 2010 that Mrs Louch realised that the asset value was incorrect and requested that her pension payments be re-assessed.

3.      Centrelink issued a notice to Mrs Louch on 25 June 2010 showing a change to the total assets it used to calculate her pension with effect from 18 June 2010.  As her 13 September request for review was within 13 weeks of 25 June 2010, Centrelink determined that the date of effect of the increased pension payments would be 25 June 2010.

4.      Mrs Louch requested that the decision of 25 June 2010 be reviewed, to set the date of effect as 4 December 2009, the date of the original incorrect assessment.  A Centrelink Authorised Review Officer (ARO) reviewed the decision.  The ARO recognised that the original asset valuation was incorrect but determined that he was constrained by the provisions of the prevailing legislation and decided the date of effect as 21 June 2010.

5.      Mrs Louch applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision.  The SSAT affirmed the ARO decision on 10 December 2010.  On 19 January 2011, Centrelink issued a notice to Mrs Louch advising that she be paid arrears from 18 to 20 June 2010 inclusive.  This decision becomes the new favourable decision.  Consequently, the matter for this Tribunal is an application for a review of this new decision.

THE HEARING

6. The parties requested the Tribunal review the matter without a hearing and on consideration of the material presented. It appeared to the Tribunal that the issues for determination on the review could be adequately determined in the absence of the parties. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the Tribunal agreed to review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing. The material comprised the documents lodged by the respondent pursuant to s 37 of the AAT Act (the T-documents).

THE FACTS

7.      The available material shows no disagreement between the parties in regard to the key facts of the matter:

(a)the information provided on the Mod R form stating Mrs Louch’s sole ownership of the property;

(b)the joint ownership of the property as shown on the title;

(c)the value of the property;

(d)the dates and information provided in the Centrelink notices;

(e)Mrs Louch first queried the value of the asset on 13 September 2010; and

(f)the method of calculation of the pension payable.

8.      The only issue in dispute is Mrs Louch’s contention that the date of effect of the correct pension should be determined by the date on which she provided Centrelink a copy of the property title showing joint ownership with her son.  The Tribunal will determine this issue by considering the relevant legislation.

THE ISSUE

9.      The issue before the Tribunal is whether the increase in Mrs Louch’s pension payments should be paid from a date other than 18 June 2010.

LEGISLATION

10.     The law that applies to the present matter is contained in the Social Security (Administration) Act 1999 (the Administration Act).

11. Subsections 109(1) and (2) of the Administration Act state as follows:

(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.

…

CONSIDERATION

12.     In this case, Centrelink notified Mrs Louch of the first decision of a reduction in her pension on 9 December 2009.  The pension payable was calculated on the basis of Mrs Louch being the sole owner of the Property, as she had stated in the Mod R form. The first occasion on which Mrs Louch requested a review of the value of the assets was 13 September 2010. This is well outside the 13-week limit provided in subsection 109(1) of the Administration Act. Accordingly, subsection 109(2) would apply, providing for a date of effect of 13 September 2010, the date on which Mrs Louch applied for a review.

13. However, in the period from 9 December 2009 to 13 September 2010 Centrelink issued a number of notices to Mrs Louch advising of changes to the valuation of the assets for pension purposes. The latest of these was issued on 25 June 2010. The application for review lodged by Mrs Louch on 13 September 2010 is within 13 weeks of this notice. This allows the provisions of s 109(1) of the Administration Act to apply, bringing the date of effect of the pension increase to 25 June 2010. However, the notice stated a date of effect of 18 June 2010. This was subsequently recognised in a notice issued by Centrelink on 19 January 2011 that arrears had been paid from 18 June 2010.

14. The legislation provides the decision maker with no discretion in regard to the date of effect as provided for in subsections 109(1) and (2). As a consequence, the earliest date of effect that would apply in accordance with subsection 109(1) would be 25 June 2010, using the notice issued on 25 June 2010 as the original decision.

15.     In the absence of any subsequent notice, the Tribunal would find that the date of effect was correctly determined to be 25 June 2010 and would affirm the decision of the SSAT.  In this case, on 19 January 2011 Centrelink determined that the date of effect is 18 June 2010, that being the date of effect of the change in pension stated in the notice issued on 25 June 2010.  This Tribunal sees no reason to disturb this determination and finds that the date of effect for Mrs Louch’s pension payments (based on her joint ownership of the property) is 18 June 2010.

16.     Accordingly, the Tribunal affirms the new decision of Centrelink made on 19 January 2011, that the arrears in pension payments to Mrs Louch based on her joint ownership of the property are payable from 18 June 2010.

FURTHER CONSIDERATION

17. In making its decision, the Tribunal is also constrained by the provisions of the Administration Act. The decision, however, does not really address Mrs Louch’s contention, that her pension should have been increased from the date she provided Centrelink with a copy of the title, showing that the property was not owned solely by Mrs Louch but was in fact owned jointly with her son.

18.     There is no dispute that Centrelink received the copy of the title on 1 December 2009.  It is the view of the Tribunal that there was an obligation on the Centrelink officer receiving this document to check it against the information provided by Mrs Louch.  Without such an obligation, it could be argued that the requirement to lodge copies of documents is devoid of purpose.  Had the officer checked the information on the title, the disparity with the information provided by Mrs Louch in the Mod R form would have been apparent, leading to the issue of ownership being queried and corrected.  Had that been done Mrs Louch’s pension payments would have been adjusted with effect from 1 December 2009 and she would not have suffered the loss of pension to which she should have been entitled.

19.     Although it is outside the jurisdiction of the Tribunal, it nevertheless appears that Mrs Louch may have grounds for compensation under the Scheme of Compensation for Detriment caused by Defective Administration (CDDA), for the loss of pension occasioned by the failure of a Centrelink officer to check the information provided on the title.  Mrs Louch may wish to pursue this with Centrelink.

DECISION

20.     The Tribunal affirms the decision made by Centrelink on 19 January 2011 that the increase in Mrs Louch’s pension payments takes effect from 18 June 2010.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member

Signed:..........................[signed]...............................................
  Associate                  Grace Horzitski

Date of Hearing on the Papers      1 March 2011
Date of Decision  5 April 2011
Advocate for the Applicant            Self-represented
Solicitor for the Respondent          Mr M Hester, Centrelink Advocacy Branch