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

[2021] AATA 22

Shawyer and Secretary, Department of Social Services (Social services second review) [2021] AATA 22 (18 January 2021)

Division:GENERAL DIVISION

File Number:          2020/2023

Re:Marion Shawyer

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:D Cremean, Senior Member

Date:18 January 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

D Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Age Pension – whether in the circumstances possible to pay the Applicant a backdated increase – no statutory or other discretion – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

D Cremean, Senior Member

18 January 2021

INTRODUCTION

1. The Applicant, Ms Marion Shawyer, seeks review of a decision of the Social Services & Child Support Division of this Tribunal (“Tier 1”) made on 13 March 2020, affirming a decision of an Authorised Review Officer (“ARO”) of the Respondent, dated 13 November 2019. That decision changed an earlier decision of the Respondent, where it was decided that the Applicant’s rate of Age Pension is to be increased from 20 March 2019 (not 15 April 2019, as originally determined).[1]

   [1] T60, the documents produced under s 37 of the Administrative Appeals Tribunal Act 1975, 204 (the “T-documents”).

2. A hearing by telephone took place in this matter on 13 October 2020, at which the Applicant was represented by her son, Mr John Shawyer, and the Respondent was represented by Ms Anneliese Massey, a lawyer with Sparke Helmore.

3. At that hearing, Mr Shawyer gave affirmed evidence. No witnesses were called by the Respondent. At one point it seemed that a resolution might be achieved in the matter by applications made under the Scheme for Compensation for Detriment caused by Defective Administration. This however was not to be. In accordance with directions made, and on consent of the parties, submissions were made to the Tribunal for the purpose of reviewing the decision by considering the documents and/or other material lodged without holding a further hearing.[2]

   [2] Administrative Appeals Tribunal Act 1975 s 34J.

4. These now are the reasons for the decision that I have made.

   LEGISLATION

5. It is unnecessary to set out at length the legislation governing Age Pensions considering the narrowness of the issue to be determined. It is not in issue that the Applicant receives the Age Pension and is qualified to receive it. Relevant legislation includes the Social Security Act1991 and the Social Security(Administration) Act1999 (the “Administration Act”).

6. The only provision of relevance in this matter is s 109 of the Administration Act which 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.

   (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.

   …

   (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.

   ISSUES AND CONTENTIONS

7. The issue in dispute in my view is correctly characterised by the Respondent as “whether the Applicant can be paid an increased rate of Age Pension from a date earlier than 20 March 2019”.[3]

   [3] Respondent’s Statement of Facts, Issues and Contentions dated 2 October 2020, 1 [2.1] (“RSFIC”).

8. The Respondent goes on to say that this specifically involves three issues:[4]

   (a)Was the Applicant given notice informing her of the rate of Age Pension?

   (b)If so, when did the Applicant request a review of the relevant decisions?

   (c)Can the Applicant be paid arrears for Age Pension prior to 20 March 2019?

   [4] Ibid.

9. The Respondent contends that the Applicant is unable to be paid an increased rate of Age Pension prior to 20 March 2019. The Respondent relies on s 109 of the Administration Act, set out above, and contends the decision under review should therefore be affirmed.[5]

   [5] Ibid 9 [5.15]–[5.18].

10. The Applicant, by her son Mr Shawyer, would not appear to disagree with this general characterisation of the issues in dispute. As he told me in the oral hearing, and he has repeated in his written submissions, the issue is one which arises out of two annuities (NK 5453418-H and NK5455682-U) in his mother’s name.

11. Mr Shawyer argues that notification of the cancellation of these annuities was given to Centrelink. In the case of one of them (NK5453418-H), expiring on 18 November 2013, he says the Applicant was paid arrears to its date of expiration after a letter from AMP was found on Centrelink’s file.

12. As regards the second annuity, however, the Respondent was unable to locate a letter cancelling this one (NK 5455682-U),[6] but it had expired on 5 February 2014.[7] It is this annuity which is the subject of the proceeding.

    [6] Ibid 7 [5.10].

    [7] T12, T-documents, 82; see also, T68, T-documents, 296.

13. Mr Shawyer argues that it was noted on his mother’s file that both annuities had been taken out and both were for 15 years.[8] He says the difference is that in the case of the first annuity the AMP letter was found but no such letter was found in the case of the second although he says a Mr George Flack, investment adviser, and his mother (the Applicant) both advised Centrelink on a total of 11 occasions that since February 2014 the annuities were no longer assets and therefore neither impacted from then on the Applicant’s Age Pension for that reason as neither was any longer an asset after that time.[9]

    [8] Applicant’s Summary of Position, dated 7 December 2020, [2] (“ASP”).

    [9] Ibid [3].

14. Accordingly, Mr Shawyer submits that what happened in the case of the first annuity should also have happened with respect to the second annuity. But he does not address s 109 of the Administration Act. He says however that he writes from a position of “some disadvantage” in not being “versed in the workings of the Department of Social Services or the laws and Policies under which they act”.[10] Hence, on his analysis, the decision under review should be set aside.

    [10] Ibid.

    TRIBUNAL’S ANALYSIS

15. I consider that of crucial importance in this matter is the application of s 109 of the Administration Act. I have noted that Mr Shawyer, on behalf of his mother, does not specifically address this issue.

16. I can, of course, make some allowances for Mr Shawyer, who is not a lawyer and who is acting in effect as a self-represented person — although strictly he is representing his mother, so she is not truly self-represented. And I can join with him in saying that it is no easy matter to become well-versed in matters of social security law.

17. But that is where my allegiance, so to speak, must end. That is because, for me, the question is a legal one and I must apply the law. I cannot fail to do so. I consider that s 109 of the Administration Act is fatal to the Applicant’s case.

18. In this matter a request for a review was made on 6 May 2019.[11] That date was within the period of 13 weeks of the notice dated 20 March 2019 — which was the second last of some 20 or so notices starting on 14 February 2014. That means that s 109(1) of the Administration Act applies to preclude the date of effect of the increase in Age Pension to be a date earlier than that date.

    [11] T68. T-documents, 295.

19. There is no discretion in this matter available to me to fix a date earlier than that of 20 March 2019. The legislation simply does not allow it.

20. I say that with some regret because I think the Applicant, by her son Mr Shawyer or otherwise, has done many things correctly and sufficiently to alert the authorities to the change as regards both annuities. In particular, I refer to the statements in evidence of Mr Shawyer regarding the endeavours of his mother and Mr Flack to notify authorities relevantly about the annuities

21. I consider there probably has been some failure on the part of Centrelink to observe proper office recording procedures. And I would think that notification of cancellation of one annuity might put an alert authority on notice that inquiries should be made about the Applicant’s file which, had they been made, would reveal the existence of the second annuity and then the question might be asked: “what might be happening with respect to that one also as they were taken out on the same day”.

    CONCLUSION

22. For the reasons I have given, s 109(1) of the Administration Act applies and the answers to the questions posed for me by the Respondent are:

    (a)Yes — by letter dated 20 March 2019;

    (b)Yes — by telephone call on 6 May 2019; and

    (c)No — the Applicant cannot be paid arrears for Age Pension prior to 20 March 2019.

23. The result is that the Applicant must fail and the decision under review must be affirmed.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member

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

Associate

Dated: 18 January 2021

Date of hearing:	30 October 2020
Date final submissions received:	10 December 2020
Advocate for the Applicant:	Mr John Shawyer
Advocate for the Respondent:	Ms Anneliese Massey
Solicitors for the Respondent:	Sparke Helmore