Stephens; Secretary, Department of Social Services and (Social services second review)
[2019] AATA 4256
•22 October 2019
Stephens; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4256 (22 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0312
Re:Secretary, Department of Social Services
APPLICANT
Bradley StephensAnd
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:22 October 2019
Place:Adelaide
Pursuant to s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 18 December 2018 and in substitution of that decision decides that the Authorised Review Officer’s decision dated 16 October 2018 as to the resumption date of the Respondent’s Disability Support Pension is reinstated.
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Senior Member B J Illingworth
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – suspension due to employment - change in circumstances – when applicant informed Centrelink – backdating of benefits – benefits backdated to date when Centrelink informed of change in circumstances - decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Phelan and Secretary, Department of Social Services [2019] AATA 554
Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Senior Member B J Illingworth
22 October 2019
INTRODUCTION
Centrelink (“the Department”) gave Mr Stephens (“the Respondent”) a Notice of Suspension of Disability Support Pension (“DSP”) dated 30 December 2015 following the Respondent advising the Department that he had worked more than 30 hours per week for two or more fortnights.
Two days prior to the second anniversary of that suspension, on 28 December 2017, the Respondent’s nominee advised the Department of a change in hours of work and consequently the Respondent’s DSP was reinstated on and from 28 December 2017. However, the Department declined to pay arrears for the period that his DSP had been suspended. The Respondent sought a review of the decision declining to pay arrears of DSP.
An Authorised Review Officer (“ARO”) of the Department reviewed the decision to not pay arrears and, in a decision dated 16 October 2018, the ARO found that the Respondent’s DSP was correctly suspended and that he was not entitled to arrears of DSP payments for the period 30 December 2015 to 28 December 2017.
The ARO decided that the suspension of DSP occurred pursuant to s 96 of the Social Security (Administration) Act 1999 (“the Administration Act”) and so, pursuant to the operation of ss 109 and 110 of the Administration Act, the Respondent was not entitled to payment of arrears of DSP from 30 December 2015 because the application for review of the decision to suspend his DSP was not received within 13 weeks of the date of the Notice of Suspension. Consequently, the ARO decided that payment could only commence from the date the Respondent advised the Department of his change in hours of work, which he did on 28 December 2017.
On 23 October 2018, the Respondent applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) for a review of the ARO’s decision and, in particular, that the Respondent was entitled to arrears of DSP for the period 30 December 2015 to 28 December 2017.
The AAT1 decided that the Respondent was entitled to arrears of DSP from 30 December 2015 to 28 December 2017 on the basis that the original Notice of Suspension of DSP from the Department to the Respondent was invalid and consequently no valid suspension of the Respondent’s DSP had occurred on 30 December 2015.
The Secretary, Department of Social Services (“the Applicant”) has applied to the General Division of the Administrative Appeals Tribunal (“AAT2”) for a review of the decision of the AAT1, namely that the Respondent was entitled to arrears of DSP dating from 30 December 2015.
The Applicant argued that the Notice of Suspension was a valid notice and that the AAT1 erred in backdating the Respondent’s entitlement to DSP to 30 December 2015. Further, that insofar as both the ARO and AAT1 decided that the suspension of DSP was pursuant to s 96 of the Administration Act, they were not permitted to rely on ss 109 and 110 of the Administration Act in considering the date of resumption of DSP. Those sections, it was submitted, did not apply to a suspension of DSP made pursuant to s 96 of the Administration Act.
The Applicant submitted that the ARO was nonetheless correct in deciding the commencement date for the reinstatement of the Respondent’s DSP, albeit for the wrong reasons at law.
The Applicant was represented by Mr Oliver Morris, Department of Human Services. The Respondent was legally represented however, prior to the commencement of the hearing, his legal representative advised the Tribunal that the Respondent did not dispute the Applicant’s submissions as to the proper interpretation of the law as contained in the Applicant’s Statement of Facts, Issues and Contentions and, accordingly, would not take part in the hearing.
The Tribunal further enquired of the Respondent’s legal representative whether the Respondent wished to be heard on the question of the validity of the Notice of Suspension. The Tribunal was advised that the Respondent did not wish to be heard on that question.
The hearing proceeded ex parte in the absence of the Respondent or his legal representative. It remained for the Applicant to persuade the Tribunal as to the correct or preferable decision.
THE EVIDENCE
The Tribunal received into evidence the T Documents[1] and a Statement of Agreed Facts[2] signed by both parties. It is helpful to here summarise that Statement of Agreed Facts insofar as it is relevant to this decision.
[1] Exhibit A.
[2] Exhibit B.
Statement of Agreed Facts
The Respondent was granted DSP on and from 12 April 2010 in respect of an impairment.
In about November 2015, the Respondent commenced work and, more particularly, for two fortnight periods in succession, he worked more than 30 hours per week.
On 30 November 2015, the Respondent contacted the Department to discuss the impact his work hours had upon his continued eligibility for DSP. The contents of that discussion are not agreed between the parties, however Department records indicate the Respondent:[3]
“…Has worked for two or more fortnights at more than the hours allowed. Payments suspended s80ssa.”
[3] Exhibit A, page 64.
On 30 December 2015, an employee of the Department decided to suspend the Respondent’s DSP due to the number of hours he was working.
Over the following two years, the Respondent’s work hours fluctuated. He did not work for over 30 hours per week but did work up to 30 hours per fortnight.
On 28 December 2017, the Respondent’s nominee contacted the Department to advise that the Respondent had entered into a new contract of employment which would require him to work fewer hours per week.
On 3 January 2018, the Respondent’s nominee contacted the Department to advise that the Respondent would no longer be working.
The Department undertook a reconsideration of the Respondent’s entitlement and determined that his DSP should be resumed.
On 3 January 2018, the Respondent was advised by letter that payment of his DSP would be resumed from 28 December 2017.
On 13 March 2018, the Respondent’s nominee contacted the Department to query why the Respondent had not been paid DSP in the period between the date of suspension and 28 December 2017. The nominee requested a review of the decision not to pay arrears from 30 December 2015 to 28 December 2017.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is contained within the Social Security Act 1991 (“the Act”) and the Administration Act.
Within “Division 7 – Various Determinations” of the Administration Act is s 80(1), which broadly permits the cancellation or suspension of a social security payment paid to a person who is not qualified to receive such payment. Relevantly, payments that have been cancelled or suspended under s 80 of the Administration Act can subsequently be resumed under s 85(1)(a)(ii).
It should be noted, however, that s 80(2) of the Administration Act states:
(2) Subsection (1) does not authorise the Secretary to make a determination if:
(a) the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b) the determination would take effect at or after the time at which the cancellation referred to in paragraph (a) would take effect.
In this case, the Respondent’s social security payment may also be suspended by operation of s 96 of the Administration Act. The Tribunal will address s 96 in more detail later in this decision.
The date of effect of resumption of DSP made under s 85 of the Administration Act is governed by “Division 9 Subdivision B – Determinations under section 78, 81A, 85 or 85A” and in particular ss 109 and 110 of that Division. In short, s 109 provides that if a person applies for a review of a decision to suspend or cancel social security payments within 13 weeks of receipt of the notice of suspension or cancelation, and the review is successful, payments resume from the date of the notice to suspend or cancel. If the application for review is made more than 13 weeks from the date of such notice, and is successful, resumption of payments takes effect from the date of the application for review.
Hence, the legislative scheme under these provisions permits DSP to be paid retrospectively to the date of the notice of cancellation or suspension if the challenge is made within 13 weeks of the date of the notice and that challenge is successful.
Within “Division 8 - Automatic cancellation and variations” is s 96 of the Administration Act which relevantly reads as follows:
96 Disability support pension – suspension instead of cancellation under section 93
(1) If:
(a) a person ceases to be qualified for disability support pension because the person obtains paid work that is for at least 30 hours per week; and
(b) the person has, within the notification period referred to in section 93, informed the Secretary that the person has obtained that work;
the Secretary may determine:
(c) that section 93 does not apply to the person’s disability support pension; and
(d) that the person’s disability support pension is to be suspended.
Unlike the Division 7 cancellation or suspension, Division 8 does not identify the date from which resumption of payments is to commence.
THE ISSUES BEFORE THE TRIBUNAL
The issues to be decided by this Tribunal are:
(a)Whether the Notice of Suspension dated 30/12/15 is a valid notice; and, if the answer is yes;
(b)Under which section of the Administration Act did the suspension of DSP occur; and
(c)Whether ss 109 and 110 of the Administration Act apply in the circumstances of this suspension; and
(d)From what date was the Respondent entitled to a resumption of his DSP.
The Tribunal will now turn to consider each of these questions.
WAS THE NOTICE OF SUSPENSION DATED 30/12/15 A VALID NOTICE?
Page 1 of the Notice of Suspension dated 30 December 2015 can be reproduced as follows:
“Suspension of your Disability Support Pension
INFORMATION USED FOR CALCULATING YOUR PAYMENT
Annual Income ……………………………………………………$16.38
Important Information
·Your Disability Support Pension has stopped because of the number of hours you are working.
·If you stop work or start working less hours for any reason within the next 2 years, you may be eligible to receive Disability Support Pension again.
·Your Pensioner Concession Card is valid until 28 December 2015. You will receive an updated Pensioner Concession Card shortly.”
Page 2 of the Notice contains the standard notice to the Respondent should he disagree with the decision, and includes his right to appeal the decision to the Tribunal.
The question remains as to the sufficiency of the Notice as is contained on page 1.
Page 1 clearly indicates by its heading that the document relates to the suspension of the Respondent’s DSP. However, some of the content that follows is troubling.
As can be seen under the heading “Information used for calculating your payment” it refers to an annual income of $16.38. The Applicant’s representative could not explain that entry. Given that the Respondent had worked two fortnights of greater than 30 hours per week immediately prior to the date of the Notice, the Applicant’s representative properly conceded that, on the available evidence, that entry is incorrect. The Tribunal agrees with that concession. The reason for that entry is inexplicable.
Under the heading “Important Information” the first dot point informs the Respondent that his DSP has stopped because of the number of hours he is working. This phrase is poorly worded and, in part, unhelpful. His DSP payments were suspended by operation of the section(s) of the Administration Act relied upon. The Notice does not inform the Respondent, or anyone reading the Notice, as to the section relied upon to stop his DSP. This will become relevant in a moment. There can be no doubt that the Notice informed the Respondent that he was no longer going to receive DSP payments because of the number of hours he was working.
The third dot point is also difficult to understand. It advises the Respondent that he is to receive an updated Pensioner Concession Card in circumstances where it would appear he is no longer in receipt of DSP. The Applicant’s representative could not explain why that phrase appears.
The Applicant conceded that the Notice could be better worded; but submitted nonetheless that the information contained within the Notice was sufficient to render it valid.
The Applicant referred to Secretary, Department Family & Community Services v Rogers (Rogers)[4] which considered the meaning of “notice” in s 299 of the Act. In considering the sufficiency of a notice, at [33] – [35] Cooper J said:
[33] … That involves two elements; the fact that a decision has been made and the content of the decision. The subsections makes no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person’s right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into the provisions of s 299.
[34] There is no general rule of the common law or principle of natural justice which requires reasons to be given for administrative decisions even though the decision may adversely affect the interests or defeat the legitimate or reasonable expectation of other persons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662. The right to reasons for a decision or information explaining the basis for an administrative decision, must be found, if at all, in the Act or some other statute.
[35] The requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision … the means employed to communicate the decision must be intelligible to the person to whom the notice is to be given so that that person is informed of the making of the decision and the content of it …
[4] [2000] FCA 1447.
The sufficiency of a notice was also discussed in Phelan and Secretary, Department of Social Services (Phelan).[5] In the referencing Rogers, Senior Member Tavoularis said at [17] – [19]:
[17] To properly inform a recipient of a decision, a notice must communicate (a) the fact that a decision has been made and (b) the content of that decision …
[18] It is not necessary to augment intelligibility of a notice via a stipulation that it must contain reasons for the decision or that it otherwise contains other “sufficient information”. The notice need compromise “… no more than the means employed to communicate the decision [such as to make it] intelligible to the person to whom the notice is to be given so that the person is informed of the making of the decision and the content of it.”
[19] The threshold of intelligibility for present purposes is determined by “… how the [notice] would be read by ordinary or reasonable persons within the group of persons to whom the information is directed.” Applied to the present facts, the notices will be found to be intelligible if it is accepted that the Applicant, as an ordinary or reasonable person in the group to whom such notice would be directed, would (1) understand the decision had been made, and (2) the content of that decision.
[5] [2019] AATA 554.
In assessing whether a notice adequately communicates the making of a decision and its content, Senior Member Tavoularis also observed that an examination of whether a person has received prior notice or notices will be relevant such that he or she will know and understand the content of the notice received.
Accordingly, for the Notice of Suspension dated 30 December 2015 to be valid, it must communicate the fact that a decision has been made and the content of that decision. The Notice must be intelligible to the Respondent such that he was informed of the making of the decision and its content. The threshold of intelligibility is how the Notice would be read by ordinary or reasonable persons within the group of persons to whom the information is directed. However, there is no requirement that the Notice contain reasons for the decision. There is nothing in the legislative provisions that specifies explanation for the administrative decision must be given.
In assessing whether the Notice of Suspension adequately communicates the making of the decision and its contents, it also necessitates an examination of whether the Respondent received prior notice or information such that he would know and understand the Notice of Suspension received.
The Tribunal received records from the Department of communications with the Respondent between 16 November 2015 and 24 December 2015. On 16 November 2015, the Respondent advised that he had received earnings from employment from 6 November 2015. On 30 November 2015, he advised that he had worked 70 hours which, it is noted, exceeded the hours of work for DSP. The Tribunal infers that the Respondent was there referring to 70 hours per fortnight, which was greater than the maximum 60 hours per fortnight after which DSP payments cease. A further record of a subsequent conversation from that same day indicates that the Respondent may exceed the 60 hour rule due to working in the retail industry, that the Respondent was unsure of his working hours for the next fortnight, and that his DSP may need to be suspended. The record continues “… and once hours drop back to 25 hours per week, customer to advise and payments restored.”
It is not clear why reference was made to 25 hours. The Applicant’s counsel submitted that it may represent the number of hours the Respondent worked prior to the increase in hours which explains why it references “drop back to 25 hours per week.” For the purposes of this matter, little turns on this question. What is plain, however, is that the Respondent was advised that his DSP may need to be suspended, and once there was a drop in hours of work, the Respondent was to advise the Department and his DSP payments would be restored.
Subsequently, on 14 December 2015, the Respondent spoke with the Department and advised there was no change in his employment circumstances from the previous advice given. Then, on 24 December 2015, the records indicate a similar a telephone conversation, namely that, for the period 15 December 2015 to 28 December 2015, there had been no change in circumstances and that he had earnings to declare.
As can be seen from that record, the Respondent had been in regular communication with the Department. There had been discussion about the 60 hour rule, that the Respondent had increased his hours of work, and that his DSP may need to be suspended but could be reinstated if his hours were to “drop back”.
The Department’s records indicate that, on 30 December 2015, because the Respondent worked for two or more fortnights at more than the 60 hours allowed, his DSP payments were suspended pursuant to “s80ssa”. One might infer that the Centrelink Officer is there referring to s 80 of the Act, however the Tribunal notes there is no such section under the Act. Section 80 of the Administration Act is headed “Cancellation or suspension determination”. Therefore, the Tribunal infers that it was the Administration Act to which the Centrelink Officer was referring. This will become relevant later.
Accordingly, when the Respondent received the Notice of Suspension dated 30 December 2015, he must have already known that his DSP may or indeed was likely to be suspended because of the hours he was then working. The Tribunal infers that the Notice of Suspension was of no surprise to the Respondent. By its contents, it indicated that a decision had been made in relation to his DSP, and that the decision was to “stop” his DSP because of the number of hours he was working. Therefore, the fact of the decision and the content of the decision, namely the cessation of payments of DSP, were clearly communicated. It was to that extent intelligible to the Respondent and indeed to an ordinary or reasonable person within the group of people to whom such a notice might be sent.
The AAT1 was critical of the Notice of Suspension and with good reason. It is poorly crafted and does not indicate that there was a suspension of payments. It simply says that DSP has stopped. The Notice would have been better worded by the use of the words of the legislation, namely “suspension” or “cancellation”. This is not fatal. By the Notice, it was plain that the Respondent was informed that he was no longer receiving the DSP.
The ARO and AAT1 both decided that the suspension occurred under s 96 of the Administration Act. The AAT1 then went on to consider the operation of ss 109 and 110 of the Administration Act with respect to the suspension and whether the application for review was made within 13 weeks of the date of the Notice of Suspension. The AAT1 in its decision at [11] said as follows:
“Broadly speaking, the section provides that for a start date to take effect from the date of the original decision (i.e. with full arrears payable) the decision must be challenged within 13 weeks of it being made. Otherwise the start date cannot be earlier than the date of challenge. That rule is subject to one condition. The applicant must be given notice of the decision. A mere statement of the decision itself is not sufficient if it does not contain sufficient information for a person to intelligibly identify the reason for the decision. The letter of 30 December 2015 does not state that the reason for the decision in a way which allowed Mr Stephens to identify the rule that had been applied to his case …”
As referred to in the cases of Rogers and Phelan, the absence of reasons for the decision does not render a notice invalid. All that is required is the communication of the fact that a decision has been made and the content of that decision. In this matter, it is plain that the decision to suspend the Respondent’s DSP has been made and that payments were stopped because of the number of hours he was working. The Notice is not rendered invalid because of an absence of reasons for the decision. However, for reasons that the Tribunal will come to, ss 109 and 110 did not apply to the circumstances of this suspension.
The answer to this question is that the Notice of Suspension is valid.
The Tribunal now turns to the next two questions.
UNDER WHAT SECTION OF THE ADMINISTRATION ACT DID THE SUSPENSION ARISE AND DO SECTIONS 109 AND 110 OF THE ADMINISTRATION ACT APPLY?
The Notice of Suspension is unfortunately silent with respect to the section of the Administration Act under which the Department suspended the Respondent’s DSP. As referred to above, s 80 of the Administration Act appears to be the section referred to by the Centrelink Officer who made the endorsement on the record dated 30 December 2015. However, s 96 of the Administration Act also provides for suspension of DSP and is the section to which the ARO and the AAT1 attributed the suspension.
Because of the poor quality of the Notice of Suspension, it is necessary for the Tribunal to now inquire into the evidence in an attempt to understand what provision of the Administration Act the Department relied upon to suspend the Respondent’s DSP. This is unfortunate and could easily have been avoided if the Notice of Suspension had been better crafted.
Section 80 is contained within Part 3, Division 7, Subdivision A of the Administration Act. Section 80 authorises the Department to determine whether DSP is to be cancelled or suspended if satisfied that the person was not qualified for such payment. The resumption of payment after suspension arises pursuant to s 85 of the Administration Act.
Relevantly, if the Respondent’s DSP was cancelled or suspended under s 80 and thereafter reinstated pursuant to s 85, the date from which reinstatement took effect would be determined by s 109. As referred to above, s 109 is found in Part 3, Division 9, Subdivision B which is headed “Determinations under section 78, 81A, 85 or 85A” and relates to the making of a favourable determination. The favourable determination is the reinstatement of suspended DSP following an application for review of the notice to cancel or suspend made under s 129 of the Administration Act. These provisions do not apply to s 96 determinations to suspend or cancel DSP, and indeed by its wording limits its application to determinations under sections 78, 81A, 85 or 85A and, accordingly, s 96 is specifically excluded.
Section 96 of the Administration Act is contained in Part 3, Division 8, Subdivision A which deals with automatic cancellations and variations of social security payments.
Pursuant to s 96(4) of the Administration Act, the suspension will operate for a period of two years and if a person does not apply for reinstatement within that period, the grant of DSP is automatically revoked. This section contemplates that the person will apply for reinstatement.
Hence, s 96 of the Administration Act deals with the factual circumstances that related to the Respondent, namely that at the time he was in receipt of DSP he obtained paid work that was at least 30 hours per week. The Respondent notified the Department that he had exceeded his 60 hours per fortnight for two consecutive fortnights. That notification enlivened the Division 8 suspension provisions under the Administration Act which suspended the Respondent’s DSP for a period of up to two years subject to a request for reinstatement.
It was for the Respondent to advise the Department of a change in circumstances which re-enlivened his entitlement to DSP, namely the reduction of hours of employment. The Department will then make a determination based upon that information received.
The Respondent requested reinstatement of his DSP on 28 December 2017, two days prior to the end of the two year period from the date of suspension. This adds force to the argument that the Respondent knew his suspension of DSP was pursuant to s 96 of the Administration Act, and that he was aware of the two year rule and the pending revocation of his DSP should he not seek reinstatement within that period.
Despite the entry by the Centrelink Officer referring to suspension under “s80ssa”, the Tribunal is satisfied that the suspension of DSP in fact occurred pursuant to s 96. This section specifically applied to the factual circumstances relating to the Respondent.
The answer to this question is that the suspension arose pursuant to s 96 of the Administration Act, and accordingly ss 109 and 110 do not apply in the circumstances of this matter. Sections 109 and 110 apply to determinations made under ss 78, 81A, 85 or 85A.
The Tribunal turns to the final question.
FROM WHAT DATE WAS THE RESPONDENT ENTITLED TO A RESTORATION OF HIS DSP?
The question here is whether the DSP is to be reinstated from the date that the change in work hours was communicated to the Department on 28 December 2017 or whether reinstatement can operate retrospectively from the point in time when the Respondent’s hours of employment reduced below 30 hours per week, namely from on or about 30 December 2015.
It was an agreed fact that over the two year period from 30 December 2015, the Respondent did not work 30 hours per week, but did work up to 30 hours per fortnight. However, the Respondent did not notify the Department of that change until 28 December 2017.
The scheme of cancellation or suspension of DSP operating within Part 3 Division 7, and in particular ss 80 and 85 of the Administration Act, when read in conjunction with Part 3 Division 9 and ss 109 and 110, provides that upon application for review of a decision to cease or suspend DSP under s 80 and upon a favourable decision upon review of that decision, DSP will be reinstated. If the application for review is made within 13 weeks of the notice, DSP will be paid retrospectively to the date of the notice; otherwise it will be paid on from the date of the application for review.
Division 7 provides for the resumption of payment of DSP after cancellation or suspension. Relevantly, s 85 says that if a person’s DSP is cancelled pursuant to (1) ss 93 or 94 of the Administration Act (which are Part 3 Division 8 automatic cancellations arising from compliance or non-compliance with a s 68(2) notice); or (2) cancellation or suspension under ss 80, 81 or 82 of the Administration Act; and the Secretary reconsiders the decision to suspend and decides the person did not receive DSP that was payable or is payable to that person, the Secretary is to determine that DSP was or is payable.
It follows that if DSP was payable, the person will receive retrospective payment commensurate with his or her entitlement in accordance with s 109. If DSP is payable, the person will receive prospective payment commensurate with his or her entitlement. However, these provisions do not refer to suspension under s 96. Indeed as the Tribunal has stated, by its wording, s 96 is specifically excluded.
Part 3 Division 8 “Automatic cancellation and variations” and Subdivision A which deal with social security payments, including s 96, have no similar provisions for resumption of payment of DSP. Hence, s 96(1) gives discretion to the Secretary to suspend DSP when a recipient obtains paid work that is for at least 30 hours per week. Section 96(3) gives a discretion to the Secretary to suspend DSP because the recipient’s DSP ceases to be payable as a result of income or increased income earned by the recipient from his or her employment.
Section 96(3A) provides that where the Secretary has made a determination under s 96(1) or (3) suspending a person’s DSP, and within two years of the date of effect of that suspension the Secretary reconsiders the decision to suspend, and the Secretary is satisfied (1) the person is not receiving DSP and (2) DSP is payable to that person, the Secretary is to determine that DSP is payable to the person.
However, unlike the s 85 resumption of DSP payments in which the Secretary is empowered to determine whether payment was or is payable, the resumption of DSP under s 96(3A) only permits the Secretary to decide whether the person is entitled to DSP. The Secretary is only here empowered to determine (1) whether the person is not receiving DSP; and (2) that DSP is payable. Hence, it is looking at that point in time within that two year period following suspension when the Secretary reconsiders the entitlement to DSP. In this case, that occurred when the Secretary received notice of the change of hours of employment on 28 December 2017. The section does not permit retrospective consideration of the person’s DSP entitlement.
The reason retrospective payment of DSP is not permitted with respect to reinstatement of s 96 suspension of DSP can be understood from the purpose of the legislative provisions. Relevantly, this section operates to suspend DSP in consequence of a person obtaining paid employment that is greater than 30 hours per week which then enlivens the Secretary’s discretion to suspend DSP. If there is a later change in that employment such that the person believes his or her entitlement to DSP is enlivened, it is for that person to inform the Secretary of such change, whereupon the Secretary will reconsider the entitlement to DSP. This section places an obligation on the person seeking reinstatement of suspended DSP to inform the Secretary as to a change in circumstances. It is only when the Secretary is informed of such a change that the Secretary will reconsider whether the person is, at that time of being informed, entitled to DSP. This provision does not empower the Secretary to retrospectively review the history of employment to determine whether at some earlier period in time the person was so entitled.
The Tribunal finds that the Respondent’s DSP was suspended pursuant to s 96(1) of the Administration Act on and from 30 December 2015. The Tribunal finds that the Department was advised on 28 December 2017 of a change in circumstances from which the Secretary was permitted to determine whether, as at that date, the Respondent is entitled to DSP. The Secretary decided, as at 28 December 2017, that the Respondent is entitled to DSP and accordingly re-instatement took effect on and from 28 December 2017 and not before.
The answer to this question is that the date of restoration of DSP is 28 December 2017.
CONCLUSION
The Notice of Suspension dated 30 December 2015 was a valid Notice made pursuant to s 96 of the Administration Act. Consequently, the Respondent’s DSP payments were suspended for a period up to two years and in the absence of a request to reconsider that suspension the Respondent’s DSP would lapse.
The Secretary received a request for reinstatement of DSP on 28 December 2017 which was two days prior to the end of the two year suspension after which his DSP lapsed. 28 December 2017 is the date on and from which the Secretary determined whether DSP is payable to the Respondent and, having answered that question in the affirmative, is the date from which the suspension was lifted and payments reinstated.
DECISION
Pursuant to s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the AAT1 dated 21 December 2018 and in substitution of that decision decides that the ARO’s decision as to the resumption date of the Respondent’s DSP is reinstated.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. J. Illingworth
......[Sgnd]....................................
Associate
Dated: 22 October 2019
Date of hearing: 14 August 2019 Advocate for the Applicant: Mr Oliver Morris Solicitors for the Applicant: Department of Human Services
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