STANKO AND LENCE PRESILSKI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 770
•7 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2007/5870
) No 2007/5871
GENERAL ADMINISTRATIVE DIVISION ) Re STANKO AND LENCE PRESILSKI Applicants
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Date 7 October 2009
PlacePerth
Decision
The Tribunal affirms the decision under review.
…............(sdg) Ms L R Tovey..................
Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – payment of arrears – date of effect of favourable decision
Acts Interpretation Act 1901 (Cth), ss28A, 29
Social Security Act 1991 (Cth), ss 17,117, 1062, 1168, 1174
Social Security (Administration) Act 1999, ss 78, 109, 237
Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138
Re Cowan and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1473
Re Estate of Thomas Biggin and Secretary, Department of Family and Community Services [2000] AATA 125
Re Kakias and Department of Family and Community Services [2006] AATA 345
Re Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 92 ALD 715
Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272
Re Walton and Secretary, Department of Employment and Workplace Relations (2007) 95 ALD 478
REASONS FOR DECISION
7 October 2009 Ms LR Tovey, Member 1. This is an application for review of a decision made by the Social Security Appeals Tribunal ("the SSAT") on 8 November 2007. The SSAT was reviewing a decision of a delegate of the Respondent of 13 September 2007:
(a)to pay Mrs Presilski arrears of disability support pension from 14 June 2007 and not an earlier date; and
(b)to pay Mr Presilski arrears of disability support pension from 14 June 2007 and also for the period 9 March 2004 to 14 April 2004 inclusive.
2.The SSAT set aside the decision under its review and substituted a decision:
(a)to pay Mrs Presilski arrears of disability support pension from 21 March 2007 and not an earlier date: and
(b)in respect of Mr Presilski:
(i)Centrelink is to calculate his rate of disability support pension in the period 28 April 2000 to 30 June 2000;
(ii)If Mr Presilski has been underpaid disability support pension in the period 28 April 2000 to 30 June 2000 arrears are payable to him for that period;
(iii)Arrears of disability support pension are payable for the period 9 March 2004 to 14 April 2004;
(iv)Centrelink is to recalculate Mr Presilski's rate of disability support pension for the period 14 June 2007 to 27 June 2007 as noted in paragraph 50 of the SSAT's decision and arrears (if any) are payable;
(v)Arrears of disability support pension are payable from 21 March 2007 to 19 June 2007.
3.The Applicants now seek a review of the SSAT's decision in this Tribunal.
LEGISLATIVE BACKGROUND: RATE OF DISABILITY SUPPORT PENSION
4. Pursuant to s. 117 of the Social Security Act 1991 (Cth) ("the Act"), the Applicants' disability support pension rate was, at all material times, calculated in accordance with Pension Rate Calculator A at the end of s. 1064 of the Act. Part of that calculation involved taking away the person's "ordinary income" from the maximum payment rate of the pension. Part of that calculation involves, where the person is a member of a couple, adding the ordinary incomes of the members of the couple (on a yearly basis) and dividing by two to work out each person's ordinary income (s. 1062-E2).
5. Disability support pension is defined to be a "compensation affected payment" by s. 17(1) of the Act.
6. Prior to 20 September 2001 s. 1168 of the Act (as it then stood) dealt with the manner in which "compensation income", as defined in s. 17(2) of the Act, affected the rate of disability support pension. At that time the effect of s. 1168 of the Act was that weekly compensation payments of a person's partner would reduce their partner's payment on a dollar for dollar basis.
7. From 20 September 2001, s. 1174 of the Act was the relevant provision dealing with the effect of the receipt of compensation payments. Its effect was, in Mr Presilski's case, that any excess compensation (after the dollar for dollar reduction of a notional income support payment is reduced to nil for Mrs Presilski) is assessed as ordinary income which reduced Mr Presilski's payment by 40 cents in the dollar.
BACKGROUND FACTS IN RELATION TO RATE OF DISABILITY SUPPORT PENSION
8. I find the following facts from the section 37 Documents and the evidence of Mr and Mrs Presilski (which I accept in its entirety).
9. The Applicants were born in Macedonia in the former Yugoslavia, and came to Australia in 1972. Mr Presilski can read English "80 per cent" but can't write English. Mrs Presilski indicated that she could read English – "not 100 per cent but I do understand" – but could not write English.
10. On 7 April 2000 Mr Presilski lodged a claim for disability support pension, which indicated that he was married to Mrs Presilski. At that time Mrs Presilski completed a partner details form which indicated that she was working as a cleaner for 22.5 hours per week earning an amount of $283 per week, and indicating that she had suffered an unspecified injury at work for which she was not currently receiving compensation. Mr Presilski had the assistance of his brother-in-law in completing his form because he didn't understand it properly and could not write English.
11. At that time the Applicants provided Centrelink with four of Mrs Presilski's payslips, which were averaged to calculate a fortnightly rate of income of $574.22.
12. On 14 April 2000 Mrs Presilski lodged a "Compensation and Damages" form with Centrelink which indicated that she was injured at work on 23 March 2000, for which she was claiming workers compensation. On 9 May 2000 a Centrelink officer contacted the workers compensation insurer, who indicated that the insurer had yet to accept liability for the accident. On the same date a preliminary notice was issued to the insurer under s. 117 of the Act.
13. On 31 May 2002 Centrelink was advised by the worker's compensation insurer that Mrs Presilski's claim had been settled for a lump sum. On that day Centrelink revoked the notice issued to the insurer on 9 May 2000. Also on 31 May 2002 Centrelink sent a notice to Mrs Presilski advising her that her compensation "preclusion period", during which she was not entitled to social security payments, had been calculated as commencing on 22 May 2002 and ending on 30 March 2004.
14. On 5 June 2002 Centrelink sent a letter to Mr Presilski noting the compensation settlement and asking for him to provide documentation as to the distribution of settlement monies. Mr Presilski said that he did not recall receiving this notice, but indicated in evidence that "we must have received that letter". He said that they took the requested documents into Centrelink.
15. On 27 June 2002 a notice from Centrelink to Mr Presilski indicated that his rate of disability support pension was $256.30 based on a combined annual income of $17,758.20. Mr Presilski told me that he received this letter, but understood the reference to "combined annual income" to be to investment income (they had invested a substantial proportion of Mrs Presilski's lump sum compensation payment). In fact the amount of income generated by the Applicants' investments was not near that amount, and the figure of $17,758.20 was calculated by taking into account the rate of wages which had been received by Mrs Presilski prior to her accident.
16. On 9 March 2004 Centrelink received a claim for disability support pension from Mrs Presilski, in which she indicated that she was not employed, and referred to her injury on 23 March 2000 and subsequent workers compensation payments.
17. On 15 April 2004 Centrelink sent Mr and Mrs Presilski notices indicating that their rate of disability support pension was $305.76 from 23 April 2004, based on a combined annual income of $1,222.04 and combined regular fortnightly earnings of $574.22. With a pharmaceutical allowance, the fortnightly total rate of payment was advised to be $308.66. Payment to Mrs Presilski was effective from 31 March 2004 (the end of her compensation preclusion period being 30 March 2004).
18. Centrelink's mail manager in Canberra has confirmed that the notices were lodged with Australia Post and that there were no issues with the post at that time. Centrelink did not receive the notices returned undelivered, or any other indication that the notices had not been delivered in the ordinary course of the post.
19. Mr and Mrs Presilski both indicated that they never received the notices dated 15 April 2004. There was some exploration of what Mr Presilski told the SSAT about this matter in evidence before me, which I find it unnecessary to consider in detail. I accept that Mrs Presilski's evidence before me reflects her genuine recollection about the lack of receipt of this notice.
20. Mr Presilski indicated that, at about this time, they were having a "bit of a problem" with their mail. He referred to the receipt of letters at his address not meant for the Applicants, and the receipt of letters for the Applicants which had been crossed off as previously sent to the wrong address. He said that this had happened a "few times". In cross-examination he indicated that these problems had probably occurred about half a dozen times over 15 years.
21. Centrelink payment records show that Mrs Presilski began receiving regular fortnightly payments of $308.66 from 7 May 2004. Those records indicate that Mr Presilski began receiving payments at that rate on 23 April 2004.
22. On 13 April 2006 and 28 March 2006 respectively Mr and Mrs Presilski were sent notices advising them of impending changes to the welfare system. Mr Presilski said that he could not recall receiving his letter, but accepted that he probably did. Mrs Presilski indicated that the letters were among those which the Applicants had retained.
23. On 21 March 2007 Mr and Mrs Presilski were both sent notices enclosing a Centrelink account statement indicating a rate of disability support pension of $358.29 from 5 April 2007 and past payments at the rate of $351.95. The notices indicated that the rate was calculated based on Mrs Presilski's rate of earnings at $574.22 per fortnight. Mr Presilski said that he could not recall receiving this letter.
24. On 13 June 2007 Mr and Mrs Presilski were both sent notices which indicated that the rate of disability support pension from 29 June 2007 would be $358.29, again based on earnings by Mrs Presilski of $574.22 per fortnight.
25. On 20 June 2007 the Applicants contacted Centrelink and advised that Mrs Presilski's recorded fortnightly earnings of $574.22 per fortnight was incorrect. At this time the Applicants were advised that this rate of income had been incorrectly used to calculate their pension entitlements since Mrs Presilski's accident on 23 March 2000. Mr Presilski told me, and I accept, that this was the first occasion on which he appreciated that his pension was being calculated incorrectly. Up until that time he assumed that Centrelink would know what rate of pension to pay him and would calculate that rate correctly based on the correct information he had given them.
26. On 20 June 2007 the Applicants were sent notices recalculating their pension at the rate of $441.40. On 11 July 2007 a Centrelink officer advised the Applicants that the changed rate of disability support pension should be backdated to 14 June 2007.
27. On 13 September 2007 an Authorised Review Officer of the Respondent considered the matter, and concluded that Mrs Presilski was only entitled to be paid arrears from 14 June 2007. This was on the basis that the correct details were not advised to Centrelink within 13 weeks of the notice of Centrelink's decision, so that Centrelink could only change the rate of payment from the beginning of the entitlement period which was 14 June 2007.
28. The Authorised Review Office also considered the position of Mr Presilski on the same date, and decided that the decision in respect of his pension should be varied so that he was entitled to be paid arrears from 9 March 2004 to 14 April 2004 inclusive. This was because Centrelink was advised of a change in circumstances on 9 March 2004, and Mr Presilski was not advised of the decision until 15 April 2004.
29. Mr Presilski told me that the Applicants kept all the letters which they received from Centrelink in a cupboard in their bedroom. He said that they normally read the letters through and, if they do not understand the contents, have their children explain the letters. While they had been offered the assistance of a Centrelink interpreter when they visited Centrelink, they hadn’t needed to take advantage of the offer.
30. In the above manner, the disability support pension received by Mrs Presilski for the periods from 31 March 2004 was wrongly calculated by taking into account wages which were not in fact received. Mr Presilski's disability support pension was mis-calculated in the same manner. This was despite Centrelink having been informed on 14 April 2000 and 9 March 2004 that Mrs Presilski had ceased employment.
LEGISLATION RELATING TO UNDERPAYMENT DETERMINATIONS
31.Section 78 of the Social Security (Administration) Act 1999 (Cth) ("the Administration Act") provides that:
"If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:
(a) determine that the rate is to be increased to the rate provided for by the social security law; and
(b) specify the last‑mentioned rate in the determination."
32. The Respondent's delegate made such a determination on 20 June 2007 when the delegate adjusted the Applicants' rate of pension in a manner that reflected the fact that Mrs Presilski was not earning any wages.
33. The primary issue in this application is when that decision should take effect. That matter is dealt with by s. 109 of the Administration Act. In this case the effect of that provision is that the favourable determination will take effect from the date of the decision unless the Applicants were not given notice informing them of a relevant original decision, or applied for a review of the decision within 13 weeks after notice of the original decision was given.
34. Sections 28A and 29 of the Acts Interpretation Act 1901 (Cth) provide for the manner in which notice of a decision may be "given". Under s. 28A(1)(a)(ii) notice may be given by sending it to the address of the place of residence of the person last known to the person serving the document. Under s. 29 service shall be deemed to be affected by properly addressing, prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at a time when the letter would have been delivered in the ordinary course of post. Section 237 of the Administration Act is to the same effect.
ISSUES
35. The Respondent accepts that arrears were payable to Mr Presilski from 9 March 2004 to 14 April 2004. These were the dates between which the Applicants had informed Centrelink that Mrs Presilski was not employed and the date of the notice of the rate of pension given on 15 April 2004.
36. The Respondent also accepts that arrears were payable to both Applicants from 21 March 2007. This was on the basis that the request for review was made within 13 weeks of the Applicants being given notice of the decision on 21 March 2007.
37. It was also common ground between the parties, and I accept, that Mr Presilski was in fact overpaid rather than underpaid in the period prior to 22 May 2002. This was because Mrs Presilski received a greater amount of compensation income than she would have received in employment income and, prior to legislative changes on 20 September 2001, that income would have reduced Mr Presilski's disability support pension dollar for dollar. The Respondent has waived recovery of those amounts of overpayment.
38. Therefore, it was common ground between the parties, and I accept, that Mr Presilski was underpaid disability support pension from 22 May 2002, and Mrs Presilski was underpaid from 31 March 2004.
39. In the above legislative and factual context, the critical issues are:
(a)Whether there was notice of the decision to fix the Applicants' rate of disability support pension incorrectly taking Mrs Presilski's former rate of wages into account as income;
(b)Whether and when the Applicant's were given that notice; and
(c)Whether the Applicants made an application within 13 weeks of having been given the relevant notice?
CONSIDERATION OF THE ISSUES – WAS THERE NOTICE OF THE DECISION
40. The first issue to consider is therefore whether any of the documents identified above constitute notice of the decision to set the rate of the Applicant's disability support pension.
41. It is clear that, for the purposes of s. 109 of the Administration Act, a "notice" must indicate that a decision has been given and the content of the decision, but need to set out the reasons for the decision or disclose the basis on which the decision has been made: Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272 at [33]-[35] per Cooper J; Re Walton and Secretary, Department of Employment and Workplace Relations (2007) 95 ALD 478 at [32]-[41]. The notice must contain a clear statement that a decision has been made: it is not enough that it contains information from which an inference to that effect can be drawn: Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138 at [36]-[38].
42. The Secretary identified the notices sent to the Applicants on 27 June 2002, 15 April 2004, 21 March 2007 and 13 June 2007 as being relevant notices. All of these notices indicated that a decision had been made to pay disability support pension at a particular regular rate and indicated the income on which that rate had been calculated. In my opinion, all of these notices were notices of a decision to fix the Applicants' rate of disability support pension incorrectly taking Mrs Presilski's former rate of wages into account as income.
43. In light of the authorities referred to above, it may not have been necessary for the notices to have identified the income on which the rate had been calculated in order to qualify as notice informing the Applicants of the original decision for the purposes of s. 109 of the Administration Act. It may have been sufficient if the notices had indicated that the decision had been made to pay disability support pension at a particular rate. However, it is unnecessary to resolve that question in this case, as all the notices did identify the income which had been wrongly attributed to Mrs Presilski.
44. I have also taken into account the fact that Mr Presilski misunderstood the reference to a combined annual income of $17,758 as being attributable only to the Applicants' investment of Mrs Presilski's lump sum compensation settlement. However, than misunderstanding does not affect the status of the document as an effective notice. As Cooper J noted in Rogers at [32], a requirement that a person be given notice of something does not demand that the matter be brought home to the person's understanding or knowledge.
45. The Applicants referred me to the decision of the Tribunal in Re Kakias and Department of Family and Community Services [2006] AATA 345. In that case a notice that a rate of pension was payable in a particular fortnight was held not to be notice of a decision to alter the regular rate of payment. By contrast in the present case the notices all clearly referred to a "regular payment".
46. The Applicants also referred to the decision of the Tribunal in Re Cowan and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1473. In that case the Tribunal found that letters from Centrelink did not expressly refer to a decision to reduce payments having been made. However, the precise form of the correspondence at issue in that case does not appear from the written reasons for decision.
47. In Re Estate of Thomas Biggin and Secretary, Department of Family and Community Services [2000] AATA 125 at [33] the Tribunal appeared to regard a notice of an invalid decision to be affected by the validity of the decision, so that no valid notice was given where the notified decision was invalid. It is unnecessary for me to determine whether that approach is correct in the present case, as there is no allegation, and no material capable of supporting an allegation, that the decision in the present case was invalid as opposed to incorrect.
48. Finally, in relation to this point, Mr Presilski challenged the validity of the notice dated 27 June 2002. The grounds of that contention were not clearly identified. Having considered the contents of the notice, I am satisfied that it was a valid notice judged by the above criteria.
CONSIDERATION OF THE ISSUES – WAS NOTICE OF THE DECISION GIVEN TO THE APPLICANTS
49. Were the notices of 27 June 2002, 15 April 2004, 21 March 2007 and 13 June 2007 given to the Applicants? As Mr Presilski accepted he had received the notice of 27 June 2002, and the notices of 21 March 2007 and 13 June 2007 were on or after the date from which all parties accepted arrears to be payable, this question need only be addressed for the notice dated 15 April 2004.
50. The records of Centrelink indicate that the notices were posted to the Applicants' last known residential address on 15 April 2004. The letters were in fact correctly addressed.
51. It may well be that the Applicants did not receive the notices of 15 April 2004. The Applicants gave evidence, which I accept, that they kept all of the notices which they had received from Centrelink in the one place. They had not found this notice, and had no recollection of having received it.
52. However, as I concluded in Re Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 92 ALD 715 at [29]-[43], non-receipt of a notice is not equivalent to non-delivery, and notice which has not in fact been received by a person may still be "given" for the purposes of s. 109 of the Administration Act.
53. I find from Centrelink's records that the notices were in fact properly addressed to the last known residential address of the Applicants, which was in fact their residential address at the time, on 15 April 2004. Service is therefore deemed to be effected under ss. 28A and 29 of the Acts Interpretation Act and s. 237 of the Administration Act. The notices are also deemed to have been delivered at the time when they would be delivered in the ordinary course of post "unless the contrary is proved".
54. Has the contrary been proved in this case? I do not think that it has. I accept the Applicants' evidence that they do not recall receiving the letter. I also accept their evidence that they retained all of the correspondence they received from Centrelink, and that the notices of 15 April 2004 were not among them. That suggests that they did not receive the notices, although the possibility that they may have done so but forgotten could not be excluded. However, I am unable to find on the basis of that evidence that the notices, as a matter of probability, were never delivered to the Applicants' address.
55. In reaching that conclusion I have also taken into account the evidence of Mr Presilski as to errors in delivery of mail which he noted. However, the rate of that problem (about 6 times over 15 years), and the fact that the letters to which he referred were eventually delivered to the correct address, does not suggest any significant issue with the Applicants' mail service.
56. I therefore find that the Applicants were given notice of the decision made on 15 April 2004 to set the rate of their pensions having regard to income wrongly attributed Mrs Presilski.
57. I also note that Centrelink's payment records indicate a number of indexation increases being affected to the Applicants' pension rates from time to time. I infer that these increases were made by decisions under s. 78 of the Act by reference to Part 3.16 of the Act. The effect of s. 109(7) of the Administration Act is that the Applicants are taken to have been given notice of these determinations and the increased rate. The first such indexation occurred in October 2004, so that the Applicants would be taken to have notice of the pension rate determination at that time, although no notice would have been actually sent.
CONSIDERATION OF THE ISSUES – DID THE APPLICANTS SEEK REVIEW WITHIN 13 WEEKS
58. The Applicants' did seek a review of the decisions notified in the notices dated 21 March 2007 and 13 June 2007 within 13 weeks of those notices being given. However, they did not seek a review of any other decision notified, or taken to be notified, to them within that period of 13 weeks.
59. It follows that the applicants are only entitled to be paid arrears from 21 March 2007, in addition to the reimbursement of Mr Presilski of the underpayment between 9 March 2004 and 14 April 2004 to which the Respondent accepted he was entitled.
DECISION
60. For the above reasons I would affirm the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ..................(Sgd) Ms L Huynh........................
AssociateDates of Hearing: 5 December 2008
Date of last Written Submission 29 January 2009
Date of Decision 7 October 2009
Representative for the Applicant Ms M Marvelli
Representative for the Respondent Ms M Conlon
Solicitors for the Applicant Welfare Rights and Advocacy Centre
Solicitors for the Respondent Centrelink Legal Services and Procurement Branch
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