Sultana and Secretary, Department of Social Services (Social services second review)
[2019] AATA 628
•3 April 2019
Sultana and Secretary, Department of Social Services (Social services second review) [2019] AATA 628 (3 April 2019)
Division:GENERAL DIVISION
File Number: 2018/4396
Re:Joseph Sultana
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:3 April 2019
Place:Perth
The decision under review is affirmed.
.......[Sgd]............................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – age pension – arrears – 13 weeks – illness – lack of understanding of system – Centrelink notices – error in calculations – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s43(6)
Social Security (Administration Act) 1999 (Cth) – ss 109, 129, 179
Social Security Act 1991 (Cth) – ss 43, 44, 55
CASES
Austin v Department of Family & Community Services [1999] FCA
Knott and Secretary, Department of Social Services [2015] AATA 266
Mastrodomenico and Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2011] AATA 323
Snodgrass and Secretary, Department of Social Services [2016] AATA 185Thompson and Secretary, Department of Social Services [2017] AATA 1638
REASONS FOR DECISION
Member C Edwardes
3 April 2019
THE APPLICATION
On 5 July 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed a decision made by an Authorised Review Officer (ARO) of Centrelink. The ARO’s decision was that the Applicant’s “rate of Age Pension can increase from 2 March 2018 and not an earlier date.” (T12, 65).
The Applicant now seeks a review of the AAT1 decision.
The Administrative Appeals Tribunal (the Tribunal) has jurisdiction to hear this matter as provided for in s 179 of the Social Security (Administration) Act1999 (Cth) (the Administration Act).
BACKGROUND
The Applicant was granted an age pension. In a letter dated 25 July 2017, the Department informed him that he would be paid age pension from 28 November 2016 (T5, 52).
In a letter dated 8 June 2017, the Department assessed the Applicant as a unit holder of 105,000 units in Bollard Unit Trust (R3).
The Department attributed the Applicant with 10% of the Trust’s assets.
The rate of age pension was incorrectly assessed by the Department, because it determined the Applicant held a loan for $105,000 to the trust.
On 8 June 2017 the Applicant was advised about the assessment of Bollard Unit Trust (R3).
The Department forwarded advice to the Applicant on 25 July 2017 and 29 August 2017 detailing the assessment of his rate of payment from income and assets provided (T5, 52 T6, 55).
On 12 March 2018 the Department sent further advice to the Applicant outlining how the rate of his age pension was calculated (R4).
Departmental records indicate that following an enquiry by the Applicant, on 16 March 2018 it was determined that an error had occurred in the assessment of the Applicant’s rate of pension (T14, 99).
The Applicant on 26 March 2018 sought review of the decision not to backdate payment of arrears (T14, 101).
The Applicant was advised on 6 April 2018 of the decision of the ARO that arrears would be paid from 2 March 2018. The ARO determined (T12, 66):
·On 28 November 2016 you lodged a claim for Age Pension and were granted from that date.
·You are a unit holder of 105,000 units in the Bollard Unit Trust (the Trust). You have been attributed with 10% of the assets of the Trust.
·Your rate of age pension is calculated under the asset test.
·In error, the department held a loan for $105,000 to the trust, that you did not have, as an asset when calculating your rate of Age Pension from 28 November 2016.
·On 16 March 2018, this error was discovered and corrected. Your rate of Age pension was increased from this date
On 5 July 2018, the AAT1 affirmed the decision of the ARO (T2, 6-8).
The AAT1 determined (T2, 8):
Careful review of the law reveals no flexibility or discretion exists to enable an extension of the 13 week review period to take into account such circumstances.
On 6 August 2018, the Applicant lodged an application for second review with the General Division of the Administrative Appeals Tribunal (T1, 1-5). The Applicant stated:
Besides other reasons I believe I did notify Centrelink of error within the 13 weeks required
ISSUES
The primary issue before the Tribunal is to determine whether the Applicant was entitled to be paid arrears from an earlier date than 2 March 2018.
RELEVANT LEGISLATION
The relevant legislation in this matter is:
·Social Security Act 1991 (Cth) (the Act);
·Social Security (Administration) Act 1999 (Cth); and
·Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
Legislation concerning the age pension is in the Act, and Part 2.2 of the Act contains provisions relating to whether a person is qualified for age pension.
Section 43 of the Act sets out the basic qualification for the payment of age pension as follows:
43 Qualification for age pension
(1)A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a)the person has 10 years qualifying Australian residence;
(b)the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997 – the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Section 55 of the Act provides that the rate of age pension is calculated using Pension Rate Calculator A found at s 1064 of the Act. Section 1064 of the Act relevantly provides:
1064 Rate of age, disability support, wife pensions and carer payment (people who are not blind)
(1)The rate of:
(a)age pension;
…
is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.
Note 1:Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.
This process of calculating the overall rate of age pension was outlined by Deputy President Professor Deutsch in the case of Snodgrass and Secretary, Department of Social Services (Social services second review) [2016] AATA 185 as follows:
29.Steps 5 and 8 of the Module A method statement require a calculation to be made of ‘the income reduction’ calculated under Module E and for that amount to be taken away from the maximum pension amount. The net figure is the income reduced rate.
30.Steps 9 and 10 of the Module A method statement require a calculation to be made of ‘the reduction for assets’ calculated under Module G and for that amount to be taken away from the maximum pension amount. The net figure is the assets reduced rate.
31.Step 11 of the Module A method statement requires a comparison to be made between the income and the assets reduced rates and the lower of the two rates becomes the rate of pension (after some other adjustments are made at step 12 none of which are relevant for present purposes).
Section 109 of the Administration Act determines the date of effect of a favourable outcome resulting from a review:
109 Date of effect of favourable determination resulting from review
(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.
(4)If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(5)If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.
(6)This section does not apply to determinations to which section 109A or 110A apply.
(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.
EVIDENCE
The matter was heard in Perth on 8 February 2019. The Applicant appeared in person and was assisted by his brother. The Tribunal after some discussion determined that the Applicant required the assistance of an interpreter. The matter was adjourned accordingly. The Secretary was represented by Ms Moore.
The hearing resumed on 18 March 2019. The Applicant was represented by his brother and an interpreter Mr Attard assisted by phone. The Secretary was again represented by Ms Moore.
The Tribunal accepted into evidence the following exhibits:
·Exhibit A1 - Applicant’s Submissions, List of Cases and St John of God Medical Records.
·Exhibit A2 – Applicant’s chronology of events.
·Exhibit A3 – Centrelink extract (T14).
·Exhibit A4 – Report by David Hertzberg ‘The Date of Effect of Merits Review Decisions in Social Security and Other Contexts.’
·Exhibit A5 – Various Case Authorities.
·Exhibit R1 - T documents (T1-T16 pp1-144)
·Exhibit R2 - Respondent’s Statement of facts, Issues and Contentions (SOFIC) dated 26 November 2018.
·Exhibit R3 - Annexure A (letter from Department to the Applicant dated 8 June 2017).
·Exhibit R4 - Annexure B (letter from Department to the Applicant dated 12 march 2018).
·Exhibit R5 - letter from Centrelink explaining assessment of Bollard Unit trust dated 8 June 2017.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided with an opportunity to address the evidence in writing. Relevant aspects of the evidence and material before the tribunal will be analysed and referred to below.
The Secretary contends (R2):
17.The Secretary contends that the earliest date from which arrears can be paid is 2 March 2018, and not from an earlier date.
…
20.The Secretary contends that the letter sent to the Applicant on 12 March 2018 constitutes notice of a decision, in accord Austin v Secretary, Department of Family & Community Services [1999] FCA 938 (8 July 1999) at [26] and Mastrodomenico and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 323 (12 May 2011).
21.The Secretary contends that as this notice related to the period from 2 March 2018, this is the earliest date to which payment of arrears can be backdated.
Request for review
22.The Secretary notes that during the period of underpayment, the Applicant did make contact with the Department several times. The Secretary contends, however, that none of these contacts can be considered to constitute a request for review, for the following reasons:
a.The Applicant’s claim for Age Pension was not granted until 25 July 2017, due to assessment of the trust, but was backpaid to the claim date of 28 November 2016;
b.The contact made by the customer of 2 August 2017 was in relation to the issue of a new Pension Concession Card (T14/95);
c.The contact made by the customer on 29 August 2017 is noted as being in relation to updating the Applicant’s savings and bank accounts details (T14/96); and
d.The contact on 12 March 2018 was for the purpose of updating further financial information (T14/97).
23.The Secretary notes that a request for review need not have specific form or wording. Nevertheless, the Secretary contends that the above contacts do not constitute requests for review. Though the Applicant has made contact in each instance above, there is nothing to suggest that the Applicant had and expressed an intention of wanting to challenge his rate of payment or seek review of that decision.
24.The Secretary contends that these discussions were in relation to various other matters, not the rate of payment or the assessment of the Bollard Unit Trust, and therefore cannot be taken as a request for review of this decision (see Angel and Department of Family and Community Services [2001] AATA 292). It is necessary for a customer seeking review to identify, in some way, the decision or effect of the decision, and there is nothing to suggest that the Applicant did this in any of these contacts with the Department.
The discretion to otherwise order
25.The Applicant has sought that a flexible approach be applied to his matter, for reasons that he had poor education and medical issues during the relevant period.
26.The Secretary notes that there is the general power to ‘otherwise order’ contained in subsection 43(6) of the AAT Act, and contends that cannot be exercised to do that which is the subject of the specific powers of the Administration Act.
27.Section 43(6) of the AAT Act has been enacted in order to deal with various types of applications spanning its many divisions, not only to deal with social security appeals. The Secretary contends that to apply the general discretion to otherwise order would be illogical in that it would not consider the temporal ‘date of effect’ considerations that would otherwise bind the decision-maker, and relevantly in the present matter, the ARO.
28.This approach is consistent with a number of decisions of this Tribunal. The Secretary relies on the decision of Mitchell and Secretary, Department of Employment and Workplace Relations [2006] AATA 804, in which Deputy President Jarvis concluded at [61] -[62]:
My above conclusion is, I think, also consistent with the role of this Tribunal in conducting merits review. If the SSAT had decided to set aside the suspension decision for the reasons I have referred to above, that decision would have been correct, but by virtue of subsection 152(4) of the Administration Act could not have had an effective date earlier than the (belated) date when Mr Mitchell had applied to the SSAT for review of the ARO’s decision. It would not be appropriate for this Tribunal to interfere with what in those circumstances would have been a correct decision, by giving that decision a retrospective operation.
…As mentioned above, I have also concluded that Mr Mitchell’s DSP should not have been cancelled on 27 May 2003. That decision was set aside by the ARO, but because of the operation of subsection 109(2) of the Administration Act, the pension could only be reinstated as from the date when Mr Mitchell’s application for review was received by the ARO, namely 8 October 2003. Neither the SSAT nor this Tribunal has power to give the decision of the ARO an earlier operation, or otherwise overcome the effect of subsection 109(2).
It follows from my above conclusions that I am not empowered to make any order that would result in Mr Mitchell being entitled to recover the arrears of the DSP for the periods from 11 March to 27 May 2003, or from 27 May to 7 October 2003, notwithstanding my view that Centrelink should not have made either the suspension decision or the cancellation decision.
29.The Secretary also relies on the reasons of Senior Member McCabe (as he then was) who considered the discretion in section 43(6) of the AAT Act in Knott and Secretary, Department of Social Services [2015] AATA 266 and provided at [20]:
I am satisfied s 43(6) of the AAT Act must be read subject to the restrictions in s 109 and 152 of the Administration Act. The provisions in the Administration Act reflect a policy requiring the recipients of social security benefits to exercise their rights of review in a timely way. Those provisions operate as a statute of limitations, as DP Jarvis explained in Mitchell (at [57]). It would be odd if parliament did not intend that policy to apply to reviews of social security decisions by this Tribunal. I think the words of the Administration Act ought to be interpreted broadly to give effect to that policy, which necessarily qualifies the operation of s 43(6) of the AAT Act.
30.The Secretary notes the decision of Senior Member Taylor in Totten and Secretary, Department of Social Services (social services second review) [2016] AATA 240 is at odds with the decisions in Knott and Mitchell. Senior Member Taylor considered that the words “unless the Tribunal otherwise orders” in subsection 43(6) of the AAT Act gave the Tribunal a (limited) discretion to “backdate” the date of effect of its decision in circumstances where a person failed to apply for review within 13 weeks of being notified of the decision and there was a good reason to exercise the discretion.
31.In Totten, the Applicant failed to apply to the Social Security Appeals Tribunal (SSAT) within 13 weeks of being given notice of the relevant ARO decision.
32.The Secretary contends that the discretion to otherwise order in subsection 43(6) of the AAT Act is only enlivened in those cases where a person has failed to request a review of a decision to the AAT1 or this Tribunal within 13 weeks of receiving notice of the decision, and where the Tribunal decides to set aside or vary the decision of the ARO. The Secretary contends that the Totten decision does not stand for the proposition that subsection 43(6) of the AAT Act can more broadly overcome the date of effect provisions such as sections 107 and 109 of the Administration Act.
33.The clear principle to be drawn from the Totten decision is that where the Tribunal sets aside a decision on review and substitutes a new decision, it has discretion under subsection 43(6) of the AAT Act to order that its decision will take effect from a date earlier than the default date specified in Item 8 of section 147 of the Administration Act. The decision of Totten sets out specific considerations which are relevant to exercising the discretion to depart from the default date, as specified in Item 8 of section 147 of the Administration Act.
34.The Secretary acknowledges that Senior Member Taylor considered that the otherwise order discretion was not available to the AAT1. The Secretary, respectfully, disagrees with this finding and contends that section 147 of the Administration Act does not purport to remove or modify the words, “unless the Tribunal otherwise orders” which appear in subsection 43(6) of the AAT Act. The Secretary therefore contends that the otherwise order discretion is available to the Tribunal on both first and second review.
35.The Secretary contends there are strong arguments against Totten standing for the proposition that the otherwise order discretion applies to date of effect provisions more broadly than what is described above:
a.Firstly, it would have to be inferred that Parliament intended that a person who wanted to recover (what are otherwise) unrecoverable arrears had to apply through at least two merits review bodies to obtain that relief (with the first application to the ARO being, effectively, otiose). For example, in determining whether a person is qualified for arrears an ARO must consider whether the person requested review of the original decision within 13 weeks of being notified of that decision. If the person failed to do so, the ARO is bound by the operation of section 109 of the Administration Act precluding the payment of arrears from a date earlier than the date a review was requested. The ARO has no discretion to determine the date of effect differently.
b.Secondly, the obvious legislative intention of the Act and the Administration Act is to limit the right to recover arrears to 13 weeks. This is directed to a higher statutory object of limiting the total liability of the Secretary in respect of arrears and to require persons to pursue their review rights promptly. The Secretary contends that it is difficult to reconcile a proposition that the statutory purpose of the Act and the Administration Act would have an intention to allow the Tribunal to circumvent the arrears limitation provisions.
c.Thirdly, the Tribunal’s function is to stand in the shoes of the earlier decision maker and make the correct or preferable decision according to law. It is true, as Senior Member Taylor pointed out in Totten, that such a notion must make way to the relevant statutory provisions under which the Tribunal operates. However, Senior Member Taylor’s finding must not be misconstrued to the extent that it supports the application of the discretion more broadly. Senior Member Taylor is merely pointing out that upon a proper construction of the purpose of the discretion, the AAT is empowered to do away with the operation of Item 8 of section 147 of the Administration Act if the circumstances are sufficiently unique such that there is a good reason to depart from the default date of effect. The Secretary submits that Senior Member Taylor correctly identifies that the ARO does not have an analogous power.
d.Fourthly, at paragraph 26 of Totten, Senior Member Taylor makes it clear that the discretion is only available if the decision under review is set aside or varied:
There is no doubt some appearance of incongruity in the existence of statutory provisions which give no “date of effect” discretion to either the Secretary (on internal review) or the SSAT (or the AAT on “first review”), and an apparently general discretion in the exercise of the AAT (“second”) review function. However, it is a difference that appears to have been deliberately provided for in the legislation. It is also a difference that does not lead, as the Tribunal appears to have thought in Mitchell, to the prospect of review applications being made to the AAT solely for the purpose of influencing the “date of effect” of an otherwise successful SSAT decision (or “first review” by the AAT): see Mitchell at [60]. This is because the “otherwise order” discretion in AAT Act s 43(6) only applies where the Tribunal varies or substitutes its own decision for the decision under review. As the Tribunal observed in Mitchell, ordinarily the date of effect of an SSAT decision is provided for directly by SSAA 1999 s 152, rather than being a matter capable of decision by the SSAT. (That corresponding limitation is even more clear since July 2015 in the case of AAT “first review”: see SSAA 1999 s 147 Table Item 8.) And given those considerations it is unlikely that the AAT could properly exercise its merits review power to set aside an otherwise “correct or preferable” decision merely for the purpose of exercising the “otherwise order” discretion in AAT Act s 43(6).
36.The decision of Thompson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1638 is relevant in this respect. At paragraphs 21 and 22 of the decision Senior Member Kelly found as follows:
The submissions in relation to this matter were of interest and raised a real issue in the Tribunal’s view. The applicant’s representative relied on the decision of Totten and Secretary, Department of Social Services [2016] AATA 240 (‘Totten ’), in particular. The Tribunal notes that that decision must be distinguished from the present case because in that case the Tribunal substituted a decision for that under review. In this case, the Tribunal can see no decision which can be substituted. The Tribunal’s discretion to “otherwise order” in relation to the date of effect therefore does not arise.
The Tribunal finds that it is unable to utilise section 43(6) as the applicant submitted it should. As is recognised in the decision of Totten there are two steps. The power to determine a different date of effect only arises where a decision of a person is varied by the Tribunal or is made in substitution for the decision of a person. In this case, the Tribunal is not taking that step and, therefore, the discretion to decide that there is a different date of effect, as sought by Mr Thompson, that is, sometime in June 2013, does not arise and it is not available to the Tribunal in this circumstance.
37.The Secretary accepts that there is a ‘two-step process’, as summarised by Senior Member Kelly in Thompson.
38.As noted in Thompson, the Tribunal’s primary role and function – matters which are relevant to the purpose of subsection 43(6) of the AAT Act (and, therefore, inform the scope and ambit of any discretion conferred by subsection 43(6) of the AAT Act) – is to stand in the shoes of the original decision maker (who is bound by provisions as to when its decision takes effect). The Full Federal Court in Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 said, at paragraph 106:
When reviewing an administrative decision under s 43(1) the AAT stands in the place, and is empowered to exercise all of the relevant powers and discretions, of the decision-maker in respect of the decision under review. The AAT hears the matter de novo in the light of the evidence placed before it.
39.If the ARO has made the correct or preferable decision, accordingly to law, the Tribunal standing in the shoes of the original decision maker will affirm the decision. It is only in those circumstances where the ARO has not made the correct or preferable decision that the decision ought to be varied or set aside by the Tribunal.
40.The discretion therefore exists to remedy a situation where an ARO has made an incorrect decision and it would be unjust (applying the factors relevant to the exercise of the discretion listed in Totten) to apply the default date of effect where a person has failed to apply to the Tribunal for review within 13 weeks of receiving notice of the decision.
41.In relation to the first step in the present case, the Secretary contends that the decision under review ought to be affirmed by this Tribunal. On that basis, the Secretary contends that it is unnecessary and irrelevant to consider the application of subsection 43(6) of the AAT Act in this matter.
42.If, contrary to the above submissions, the Tribunal finds that the discretion exists in a broad sense and is enlivened, with respect to the second step the Secretary submits this is not an appropriate case for the Tribunal to exercise such a discretion.
43.In paragraphs 36 to 42 of Totten, Senior Member Taylor discussed the considerations relevant to the exercise of the “otherwise order” discretion conferred by subsection 43(6) of the AAT Act. Relevantly, the Senior Member identified that, given the “uniqueness” of such a discretion, it should only be exercised “for good reason, and one consistent with the overall purposes and objectives of the legislation…”
44.After observing that, Senior Member Taylor identified the considerations relevant to the exercise of the “otherwise order” discretion. On this note, Senior Member Taylor said:
Those considerations (those addressed in the three preceding paragraphs) suggest, and I find, that the considerations relevant to the exercise of the “otherwise order” discretion at least include
(a) the claimant’s social security qualification, and the payability of the payment or pension, at the date relevant to the exercise of the “otherwise order” discretion.
(b) the information provided by and to the claimant - both in relation to their claim qualifications, the basis of any decisions, and the potential review processes.
(c) the comparative responsibility for any erroneous decisions made in relation to the claim.
(d) the length of any delay in invoking a relevant review process, and the reasons for the delay, including the comparative responsibility for the delay in reviewing the decision.
(e) the personal circumstances of the claimant, including both the financial hardship involved in the delayed recognition and acceptance of their claim, and any known disadvantage they may have had in pursuing the claim.
45.The Secretary submits that Tribunal should not exercise such a discretion in the circumstances of the case. While the Secretary accepts that the Applicant had some difficult circumstances during the period of underpayment, the Secretary contends the circumstances as a whole do not give rise to any discretion.
46.The Secretary also notes that it is open to the Applicant to pursue a claim under the Compensation for Detriment caused by Defective Administration scheme.”
The Applicant contends (A1):
1.The applicant argues that he should be paid the correct rate of age pension from the date of grant - 28 November 2016 - either because he requested a review within 13 weeks of being advised of the decision to pay him at a lower'/incorrect rate or because of the exercise of the Tribunal' s discretion under section 43(6) of the AAT Act.
2.Mr Sultana contacted Centrelink on 29 August 2017 and says this should have been treated by Centrelink as a 'request for review' (see Lewis and Secretary, Department of Social Services; Bays and Secretary, Department of Education, Employment and Workplace Relations; Bridges and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs; Austin v Secretary, Department of Family & Community Services; Secretary, Department of Social Security and Marsh; Re Frost and Secretary, Department of Social Security).
3.As discussed in those cases when Mr Sultana queried his rate of payment and offered updated information regarding his savings and bank account details this amounts to a request for review of his current rate of payment and should be interpreted as such (see Bays; Marsh; Lewis; Re Frost).
4.Regarding the Secretary's assertions, if updates to financial information on 12 March 2018 could be considered a "request for review", it would seem reasonable that updates regarding Mr Sultana' s finances (namely savings and bank account details) on 29 August 2017 would also constitute a request.
5.Whilst Centrelink has failed to record the full detail of the contact on 29 August 2017, Mr. Sultana will give evidence about this. It is common practice for a document created by the Department to just record a brief outline from that employee' s perspective of what occurred. The Centrelink employee failed to identify that a review was requested and this logically explains why nothing was recorded.
6.If Mr Sultana's contact on 29 August 2017 had been correctly interpreted as a "request for review" by the Department, then the most relevant 'decision' prior to the review request would have been on 25 July 2017 which was the original grant letter. 29 August 2017 is within 13 weeks following 25 July 2017 and consequently Mr Sultana would be entitled to be paid arrears at the correct rate from the date of claim.
7.Alternatively, the Tribunal has the general power to 'otherwise order' in subsection 43(6) of the AAT Act. The Secretary relies on decisions of the Tribunal which predate Totten and Secretary, Department of Social Services [2016] AATA 240 whereas the applicant says Totten's case should be followed here.
8.In this case the Applicant submits that when you consider the relevant considerations which Senior Member Taylor set out in Totten's case the Tribunal should exercise the discretion to pay him from the date of claim:
(a)The claimant's social security qualification and the payability of the payment or pension at the date relevant to the exercise of the 'otherwise order' discretion - there is no dispute that Mr. Sultana should have been paid the higher rate of pension from the date of claim 28 November 2016. He provided Centrelink with all relevant information as patt of the claim as at the date of the claim and made no contribution to Centrelink's error in calculating the rate of payment.
(b)The information provided by and to the claimant - the Secretary has conceded that Mr. Sultana had provided correct information and it was solely Centrelink error that caused the underpayment. Mr. Sultana did not understand how the assessment had been done or that it was incorrect (see personal circumstances outlined below). When Centrelink finally corrected the error they were able to do this based on the correct information Mr. Sultana supplied as part of his claim in November 2016;
(c)The comparative responsibility for any erroneous decisions made in relation to the claim – the sole responsibility was that of the Department.
(d)The length of delay in invoking a relevant review process and the reasons for the delay including the comparative responsibility for the delay in reviewing the decision – Mr. Sultana did not receive advice about the grant of his claim until 25 July 2017 after the letter about the Bollard Unit Trust had been sent to him. According to his evidence he requested a review on 29 August 2017 which was within 13 weeks of the date he would have received the letter which is Attachment A to the Secretary’s Facts and Contentions and the date of the letter setting out the rate he was to receive – if the Tribunal finds that this was not a request for review then the applicant says that Centrelink is responsible for the delay in Mr. Sultana requesting a review by not explaining to him at the time why his rate was affected and asking him whether the information Centrelink had recorded was correct;
(e)The personal circumstances of the claimant, including both the financial hardship involved in the delayed recognition and acceptance of their claim and any known disadvantage they may have in pursuing the claim -
• The total amount Centrelink underpaid Mr. Sultana was approximately $12,000.00;
…
• Mr Sultana migrated to Australia at the age of 16 and worked as a labourer all his life. He was educated to fourth grade in Maltese but struggled to read and understand the letters he was sent from the Centrelink. His lack of formal education contributed to his lack of understanding of the basis on which his rate was so low and also his review rights and how to get the matter reviewed.
9.For these reasons the Applicant argues that the correct and preferable decision is that he should be paid the correct rate of age pension from the date his payment was granted - 28 November 2016.
The Tribunal notes the Applicant’s submission (Exhibit A1) contains a number of attachments in the form of medical reports.
HEARING
The Applicant outlined his case; Centrelink advised the Applicant on 25 July 2017 that he was to receive $6,576.17 as arrears for his age pension.
This was followed by a pension amount of $373.80 on 7 and 29 August 2017. The Applicant stated:
The evidence will show that the amount of pension Joseph was receiving, he decided on 29 August 2017, being 11 weeks and five days after he received a letter from Centrelink dated 8 June 2017, he decided to go into Centrelink office at Morley and express his concerns about the small amount of pension he was receiving. Evidence will show that he went into Centrelink on, sorry, 29 August 2017 for the purpose of having Centrelink - - -
….
Have Centrelink has another look at their calculations of the pension he was being paid. Evidence will also show that he did not go into Centrelink to update circumstances as was noted on the Centrelink records, albeit some updates were made but that was not the purpose of his visit. Evidence will also show that Joseph spoke to one of the Centrelink officers and told them there was something wrong with the amount of pension he was being paid, that it was not correct and the amount of pension was too small, or words to that effect.
The evidence will also show that the Centrelink officer told Joseph that he had too many assets and to go and spend his savings and sell some assets and come back and will qualify for a full pension.
(Transcript p13)
The Applicant in addition relies on submissions provided to the Tribunal, tendered as Exhibit A5.
The Respondent’s opening remarks consisted of the following:
It is not in contention that the department, in error, considered that the applicant held a loan for $105,000 to the Bollard Unit Trust.
….
The error is accepted. It is also accepted that this affected his rate of aged pension until this was corrected on 16 March 2018. What is in contention is whether the applicant can be paid arrears for aged pension prior to 2 March 2018. The secretary contends that due to the operation of section 109 of the Administration Act, which limits the date of effect where a favourable determination is made as a result of an application for review, there is no basis for paying arrears prior to 2 March 2018.
The secretary also contends that there was no request for review until 16 March 2018 and further that the contact on 29 August 2017 did not constitute a request for review
(Transcript pp15-16).
In addition the Secretary relies on his Statement of Facts, Issues and Contentions (R2).
The Applicant gave the following evidence:
·The Applicant confirmed on 27 July 2017 he was advised by Centrelink he was to receive an Age Pension of $373.80.
·He was also advised by Centrelink that he would receive an amont of $6,576.17 as arrears from 27 November 2016.
·He received his first fortnightly Age Pension of $373.80 on 7 August 2017 and again on 21 August 2017.
·He claimed he was not happy with the amount he was receiving and decided to visit Centrelink after receiving the second pension amount. This was done on 29 August 2017, 11 weeks and 5 days after receiving a notice from Centrelink on 8 June 2017.
·The Applicant stated that he went to Centrelink to express his concern about the small pension amount he was receiving.
·The Applicant said in response to a question from the Tribunal:
MEMBER: So on the first occasion, did you go and talk to Centrelink?
WITNESS: Yes, but - I did, but I was a bit confused, you know.
(Transcript p22)
·He stated the purpose of his visiting Centrelink was to complain about his pension amount.
·He stated his enquiry to Centrelink was not a general one but rather specific about the amount of pension he was receiving.
·He stated he went to Centrelink twice to complain about the amount he was receiving and also matters relating to his seniors card.
·He stated the following in response to a question about conversations which took place at Centrelink:
…
She told me that I had too many assets, and go and spend - spend my savings and sell some assets and come back and will qualify for the pension. I had a look at Centrelink records of our meeting, in particular the one date 29 August 2017 made by the Centrelink interview officer. Nowhere in the Centrelink record note T14, page 69, is there any reference made to the conversation I had with the Centrelink officer, tell her why I went - why I went into Centrelink. I was - the pension amount was not correct, and no records of Centrelink officers respond to go and sell some assets as you have too many assets. Neither did I go into Centrelink for the purpose of updating SBS due to general living cost, et cetera, as recorded. My sole purpose to go into Centrelink was to advise Centrelink that the amount of pension I was receiving was not correct.
MR C SULTANA: Okay. What happened then?
WITNESS: She said that - she said she will raise my pension by an extra $50 with no further explanation. I did not go there for the extra $50. I went in there with the hope that Centrelink would have a second look at their calculations, as I believe that I give them all the correct information they asked for.
(Transcript p27)
Under cross-examination the Applicant stated:
·His age pension claim was granted on 25 July 2017 and he received correspondence to that effect from Centrelink.
·He stated he could not remember receiving the letter from Centrelink dated 8 June 2017 (Annexure A – R3). He Said – “I never see anything like this before” (Transcript p35)
·He stated he went to Centrelink twice for senior cards and than complained about his pension being very low.
·He stated his brother found the mistake with his age pension amount.
In re-examination he stated that he could not remember seeing the letter of 8 June 2017.
The Applicant’s closing submission consisted of the following:
You’ve got a copy of - well, the way I see this, if I can just, in a nutshell, is we need to establish that Joseph went in and complained within the 13-week period and that what was - what he said to be - I believe it should be interpreted as saying please do it if you - - -
He did not use the word “review”, he went in and there’s case law here. Now, do you want me to go - some of the highlights of those laws? Yes, that would take a fair bit of time.
I’ve been through it, and there are - and a lot of these cases, that the person did not have to use the word “review” by the simple act of going in and complaining, I wasn’t getting enough money, there’s a shortfall in my pension, and that Joseph, I believe, did all this, he actually did go in and complain on 29 August and told the officer there, there’s something wrong here. And - - -
…
MEMBER: The other point I’m not clear on, Mr Sultana, is whether he was confused as well. I don’t know.
MR C SULTANA: The confusion regarding the letters, especially that lengthy letter, I believe she - he may have got it and just put it aside. But he did go in within the 13 week period and complain.
(Transcript p39-41)
The Respondent’s closing remarks are contained accordingly:
So in relation to the visit to the Centrelink office on 29 August 2017, the key question is whether this visit constituted a request for a review. It is accepted that Mr Sultana did visit the Centrelink office on this date.
And the Secretary also accepts that there is no need for a specific format or wording for a request for review. However, it is necessary for an applicant to identify in some way the decision or the effect of that decision. It is clear that the applicant did receive the letter dated 8 June 2017, as this was included in the applicant’s documents filed with the tribunal on 19 October 2018.
So it’s clear from what happened after that that the Department took that to be a trigger to review his general living expenses at that time, and the amount of pension was adjusted from that.
He got an extra $50. So the Department - the Secretary’s submission on this is that the Department took this to be a trigger to adjust that amount, and that’s reflected in the T documents at page 143, that you can see that the yearly amount has been adjusted from that date to reflect the extra $50 a week. However, it’s clear that because that action was taken, it was not taken to be a request for review of the original decision at that point.
It seems that in this case - I note that the file notes are brief on this, so I can’t provide any further detail of records of what conversation took place on 29 August. But it’s clear from those file notes that that was taken as a consideration of the general expenses at that point in time. The Secretary also notes that there was no further follow up after that amount was adjusted by $50, until March of 2018. So there was a long gap between August of 2017 when Mr Sultana queried it and made this query or complaint, and then there’s a very large gap between the next visit to Centrelink to query the rate. So we would say that there was nothing to put the Department on notice that that wasn’t the intended outcome of that visit.
MEMBER: But if on - and I would suspect he might be right, that he went in there and said, “I’m not happy with that”, doesn’t that really translate into someone having to do something about the quantum he is receiving?
MS MOORE: And I think that is what happened, it was just that the Department took that to be a review of the amount, without looking at the initial assessment of that trust.
So the Secretary’s submission would be that the Department did act on that enquiry, but they weren’t alerted to the fact that the initial basis for that calculation was the decision.
…
Yes. I suppose there’s two points on that. First, we have provided all the records that we do have for these visits, and Centrelink notes, I think due to often the time pressures do tend to be fairly brief, they’re more focused on the outcome of a visit, rather than the detailed notes of everything that was discussed and took place, due to that visit or that activity. For this note, the outcome of that visit is recorded, and I can’t speculate, without any evidence, it’s the best evidence and the only evidence that we have.
And there’s limited other evidence that we can use to support Mr Sultana’s evidence that he raised this as a complaint. What is clear is that this visit was taken to be an update to the general living expenses, not the assets on which the original pension grant was made, and that that action was taken - the pension amount was adjusted following this visit, and there was no further enquiry from Mr Sultana on whether this should have been higher again, until we go to March of 2018. And from Mr Sultana’s evidence today, it seems like the mistake was only realised after he spoke to his brother at this point. So we would say that there could have been no request for review on the original decision regarding the assessment of the Bollard Trust, and that that was incorrect, until March of 2018.
(Transcript pp41-44)
CONSIDERATION
Section 44(1) of the Act provides that an age pension is not payable to a person if the person’s age pension rate would be nil.
Section 55(a) of the Act provides that a person’s rate of age pension is calculated by applying “Pension Rate Calculator A” at the end of s 1064 of the Act.
The Authorised Review Officer states (T6):
I looked at section 109 of the Admin Act and how it relates to your review. You were sent letters regarding your rate of Age Pension on 25 July 2017, 29 August 2017 and you are deemed to have been sent a notice on 20 September 2017. These were notices of decision. You did not request a review of these decisions within 13 weeks.
You were sent a letter on 12 March 2018 regarding your rate of Age Pension from 2 March 2018. This was a notce of a decision. You sought a review of your rate of Age Pension on 26 March 2018. This is within 13 weeks of the notice of a decision.
The Tribunal has viewed the two letters of 25 July 2017 and 29 August 2017. Both note under the heading:
If you do not agree with a decision we have made
……..
If you do not agree with the a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.
The Tribunal notes at the AAT1 hearing the Applicant was represented by his brother Christopher Sultana (T2, 7).
…….Christopher Sultana referred the tribunal to a file note in the papers dated 29 August 2017 (page 303) which states
Customer contacted MORLEY on 29 AUG 2017 regarding general Enquiry for Age Pension. Information was obtained via Personal - In Office Document created by P81382 on 29 AUG 2017 Customer has updated SVS due to general living costs over a 12 month period.
The Applicant told the AAT1 (T2, 8):
7.At hearing Mr Sultana said that he relied on Centrelink to get it right. The last several years have been especially traumatic for him as his son suffered significant injuries and following an extensive period of convalescence in the hospital system returned to live with him. The strain of caring for his son resulted in aggravation of his own medical conditions requiring periods of hospitalisation and extensive treatment. Christopher Sultana said that his brother’s education was limited (primary school) and that Centrelink correspondence was confusing. Unfortunately Christopher could not intervene earlier as he had his own medical issues to attend to.
8.Both indicated that they understood the law but requested that flexibility be applied to factor in: the administrative misadventure of Centrelink; significant life crisis; poor education; and finally that “we are not asking for anything more than what we would have ordinarily been entitled to”.
The primary point of disagreement between the parties is what really constitutes a request for a review. There is no evidence before the Tribunal to indicate a request was made within 13 weeks after the departmental letters of 25 July 2017 and 29 August 2017.
Whilst the Tribunal accepts there might be some ambiguity in terms of what constitutes a request there is no evidence that comes close to pursuading the Tribunal that the Applicant was in some way seeking a review at an earlier time than 23 March 2018.
A proper request for review of the age pension did occur on 23 March 2018 for the departmental asessment of 21 March 2018 (T8, 58). Accordingly this request was forwarded to an ARO for a formal review to be undertaken (T9, 60-61).
The Tribunal notes the Applicant made contact with the Department on a number of occasions from 2016 to discuss his application. Departmental records in document T14 demonstrate communication between the Applicant and the Department on a regular basis for the purpose of upgrading information.
Whilst there is the suggestion that the Applicant had been unwell and was not conversant with the requirements of the Department, the Tribunal is not pursuaded that this communication formed the basis of a request of review.
The Tribunal finds that the notices sent to the Applicant in July and August 2017 clearly gave the Applicant the opportunity to seek a review of those decisions. The Tribunal finds that opportunity was not taken up by the Applicant until he received a further notice in March 2018.
Whilst the Tribunal found the Applicant to be a truthful person, it also finds having observed him in the witness box that he is easily confused. This may have led to him believing that he was seeking a review when in fact he was talking at cross purposes.
On many occsions throughout the hearing the Applicant appeared to be unclear in recollection of facts relevant to the matter.
The Tribunal having considered all the evidence before it accepts the finding of the AAT1.
The Tribunal does accept the submission of the Applicant that his lack of understanding of the Social Security system impeded his requesting review at an earlier time. However the Tribunal finds he had a number of opportunities to seek such a review.
Regarding the discretion provided for in s 43(6) of the AAT Act, the Tribunal agrees with the Secretary’s submission that this provision cannot be read singularly and is subject to the specific powers provided through the Administration Act. The Tribunal notes the Administration Act empowers the Tribunal to make a determination in this matter.
DECISION
The decision of the AAT1 is affirmed.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
..............[Sgd].........................................................
Associate
Dated: 3 April 2019
Date of hearing: 18 March 2019 Applicant: In person Advocate for the Applicant: Christopher Sultana Advocate for the Respondent: Ms S Moore Solicitors for the Respondent: Australian Government Solicitor
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