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

Talbot and Secretary, Department of Social Services (Social services second review) [2020] AATA 591 (19 March 2020)
Division:GENERAL DIVISION
File Number: 2019/4326
Re:Ivan Talbot
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:19 March 2020
Place:Perth

The decision under review is affirmed.
........[sgd]................................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – age pension – date of effect of favourable determination – date of request for review of rate of payment – Tribunal’s discretion to otherwise order – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act (Cth) – s 43(6)
Social Security Act 1991 (Cth) – ss 55(a), 1064, 1064-B1
Social Security (Administration) Act 1999 (Cth) – ss 78, 108, 109(1), 109(2), 109(3), 109(7), 110(1), 111, 123(3), 129(1)
REASONS FOR DECISION
L M Gallagher, Member
19 March 2020
INTRODUCTION

Mr Talbot has been in receipt of the age pension since 19 November 2016

(R1, T4 at page 64). Mr Talbot’s rate of payment was calculated in accordance with the Rate Calculator at the end of s 1064 of the Social Security Act 1991 (Cth) (the Act). The method of calculating the rate of payment is affected by, among other things, a person’s ordinary income and the value of their assets. A person’s maximum basic rate payable depends on the person’s family situation (s 1064-B1 of the Act).
It has become apparent that, shortly after Mr Talbot was initially granted the age pension, the Department of Human Services (Centrelink) made an error, one that is not in dispute by the Secretary.[1] The error concerns Centrelink’s failure to update Mr Talbot’s asset details when he provided an online update regarding a change to his assets on

10 December 2016 (R1, T8 at pages 73 to 80; R3, paragraph [28]; transcript at page 15, paragraphs [10]-[15] and [45]). That is, the value of Mr Talbot’s assets in accordance with the information provided by him on 10 December 2016 should have been taken into account in calculating the rate of Mr Talbot’s age pension and was not. Unfortunately for Mr Talbot, this resulted in Centrelink paying an amount of age pension to him which incorrectly reflected his entitlement at that time.
[1] See, for example, R3 at paragraph 28.
Mr Talbot has since been paid some arrears. However, Mr Talbot’s concerns lay with whether he can be paid arrears back to 10 December 2016, the date that Centrelink made the error.
BACKGROUND AND CLAIM HISTORY
On 10 December 2016, Mr Talbot uploaded a document to the Centrelink online system to advise Centrelink that he had withdrawn an amount from his superannuation account and transferred it to his bank account (R1, T8 at page 74). Mr Talbot attached the relevant account statements as part of his advice (R1, T8 at pages 75 to 80).
Following Mr Talbot providing an update on 10 December 2016, he provided a number of further asset updates to Centrelink. Centrelink also provided related correspondence to

Mr Talbot, as follows:
(a)On 21 April 2017, Mr Talbot attended a Centrelink Service Centre and provided an update about his assets (R1, T22 at page 262). Centrelink sent a letter of the same date to Mr Talbot, setting out his asset and income amounts and rate of payment (rate notice) (R1, T10 at pages 82 to 83). The letter stated, relevantly:
If you do not agree with 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. (Original emphasis.)
(b)On 27 July 2017, Centrelink sent an income statement to Mr Talbot, detailing his assets and their values (R1, T13 at pages 91 to 96). On the same date, Centrelink sent a statement to Mr Talbot for the period 5 May 2017 to 27 July 2017, setting out the changes to his payment rate (R1, T13 at pages 97 to 100). The statement says, relevantly:
‘Date of change’ is the date the change took effect, and may be different from the date you told us about the change. If you do not agree with these decisions to change your rate, ask us about your rights to have the decisions looked at again. You can find more information about what to do if you think this decision is wrong by going to our website humanservices.gov.au/reviewsandappeals.[2] (Original emphasis.)
(c)On 20 March 2018, Mr Talbot claims to have provided an online update regarding the details of his assets (R1, T22 at page 264).[3]
(d)On 14 August 2018, Mr Talbot attended a Centrelink Service Centre and provided an update about his assets (R1, T22 at pages 268 and 269). On the same date, Centrelink sent a rate notice to Mr Talbot for the period 4 July 2018 to
1 August 2018 (R1, T22 at pages 107 to 108). The rate notice set out the total asset and income amounts used for calculating Mr Talbot’s payment rate and a statement regarding Mr Talbot’s review rights (as extracted at paragraph [5](a) above).
(e)On 16 August 2018, Mr Talbot provided an online update regarding the details of his assets (R1, T22 at pages 270 to 271). On the same day, Centrelink paid an amount of arrears of age pension to Mr Talbot for the period 4 July 2018 to
1 August 2018 (R3, Attachment A).
(f)The parties maintain that on 17 August 2018,[4] Mr Talbot attended a Centrelink Service Centre and provided documents to support an update to his assets information that he created online on 20 March 2018 (R1, T22 at page 264). Following this update, on 21 August 2018 Centrelink paid an amount of arrears of Age Pension to Mr Talbot for the period 20 March 2018[5] to 15 August 2018 (R3, Attachment B).
[2] The Tribunal notes that Centrelink’s website under another webpage headed “Reviews and appeals of a Centrelink decision” includes the following information regarding reviews and appeals of decisions about a claim or entitlement:
You can ask us to review our decision about a claim or entitlement. You should do this within 13 weeks from the date we tell you about the decision. You can still request a review after 13 weeks. However, if we can change the decision, you may only get your entitlement from the date you request the review.
[3] The Tribunal notes there is no record of any corroborative evidence having been provided by Mr Talbot at that time.
[4] The matter of Mr Talbot’s attendance at a Centrelink Service Centre of 17 August 2018 referred to in subparagraph 5(f) above is agreed by the parties. The Tribunal notes that following the Tribunal’s request at the hearing, the Secretary was unable to locate any record of Mr Talbot’s attendance at a Centrelink Service Centre on 17 August 2018.
[5]
On 23 August 2018, Mr Talbot requested a review of Centrelink’s decision to pay his arrears of age pension from “May 2018”[6] (R1, T16 at page 110). In his letter requesting a review, Mr Talbot maintained that the decision to pay his arrears of age pension should have applied from 10 December 2016, upon discovering in August 2018 that the asset update he provided to Centrelink on 10 December 2016 was never applied (refer to paragraph [2] above).
[6] The reference to “May 2018” appears to be a typographical error and should read “March 2018.” Refer to transcript at page 11, paras [20]-[25].
On 9 March 2019, an Authorised Review Officer (ARO) from Centrelink determined that the decision “made on 17 August 2018” to increase Mr Talbot’s rate of age pension and pay Mr Talbot arrears of age pension from 20 March 2018 and not an earlier date was correct (R1, T18 at page 113).[7] The ARO observed that (R1, T18 at page 115):
You were also deemed to have received notices on the indexation dates of
20 March and 20 September each year. These are notices of decisions.[8]
…
There is no record of you requesting a review of your rate of Age Pension until 23 August 2018. This is within 13 weeks of the notice of decision, dated
14 August 2018 regarding your rate of Age Pension from 4 July 2018.
Applying the date of effect provisions within the Admin Act, your rate of Age Pension can increase from 4 July 2018 and no arrears are payable.
(Emphasis added.)
[7] The ARO decision refers to the decision to pay arrears to Mr Talbot from 20 March 2018 as having been made on 17 August 2018. The Tribunal notes footnotes 4 and 5 above in this regard, however nothing turns on this for the purposes of this decision.
[8] Refer to s 109(7) of the Social Security (Administration) Act 1999 (Cth). The effect of this provision is that if the Secretary makes a decision to increase the rate at which an age pension payment is being (or has been paid), a person is taken to have been given notice of an indexation increase to their age pension on the date on which the amount was adjusted, without a separate notice being provided.
On 12 April 2019, Mr Talbot applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a first review of the ARO decision dated

9 March 2019 (R1, T19 at pages 118 to 130), requesting that he be paid arrears of age pension from 10 December 2016 in order to rectify Centrelink’s error (refer to paragraph [2] above).
On 18 June 2019, the AAT1 affirmed the ARO decision dated 9 March 2019 (R1, T2 at pages 12 to 14). While the AAT1 was satisfied that arrears should have been paid to

Mr Talbot from 4 July 2018, being the start date of the period relating to the grant of arrears (refer to paragraph [5](e) above) and within 13 weeks of Mr Talbot’s request for a review on 23 August 2018 (refer to paragraph [6] above), it also noted:
The tribunal is uncertain why Mr Talbot has been paid from 20 March 2018 and presumes that this is an administrative error, which it will not disturb.
On 19 July 2019, Mr Talbot applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 18 June 2019 (R1, T1 at pages 1 to 11) on the basis that he maintained his position that he ought to be paid arrears of age pension from

10 December 2016.
RELEVANT LEGISLATION
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.
By s 108 of the Administration Act, a favourable determination includes a decision made under s 78 of the Administration Act.
As to the date of effect of a favourable determination resulting from review, s 109 of the Administration Act provides that:
(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.
(Emphasis added.)
As to deemed notice of rate increase determinations, s 109(7) of the Administration Act provides that for the purposes of s 109 of the Administration Act, 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.
(Emphasis added.)
For present purposes, s 110(1) of the Administration Act provides that:
if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:
(a)on the day on which the person so informed the Department; or
(b)on the day on which the event or change occurred;
whichever is the later.
(Emphasis added.)
By s 111 of the Administration Act, if:
(a)the Secretary makes a determination under section 78; 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;
the determination takes effect on the day on which the amount was so indexed or adjusted.
Subsection 123(3) of the Administration Act states that:
(3)A determination of the rate of a social security payment continues in effect until:
(a)a further determination in relation to the payment under section 78, 79, 81A or 85A takes effect; or
(b)the payment becomes payable at a lower rate under section 98, 99 or 100.
Subsection 129(1) of the Administration Act provides that a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
As to the Tribunal’s power to “otherwise order” the date of effect of a decision under review, s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that a decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
ISSUES FOR DETERMINATION
The issue for review is from what date Mr Talbot can be paid arrears of age pension, which in turn requires consideration of:
(a)
whether Mr Talbot requested a review of the relevant decision before

23 August 2018, in particular:
(i)the specific decision Mr Talbot requested to be reviewed; and
(ii)the date Mr Talbot made the related request;
(b)
whether Mr Talbot can be paid an increased rate of age pension earlier than

4 July 2018;
(c)
if Mr Talbot did not request a review of the relevant decision prior to

23 August 2018, whether the Tribunal’s discretionary power to otherwise order, contained in s 43(6) of the AAT Act, permits the Tribunal to backdate the effect of the decision to a date prior to that determined by the date of effect provisions contained in the Administration Act; and, if yes,
(d)whether the discretionary power should be exercised.
EVIDENCE AND PARTIES’ CONTENTIONS
The matter was heard in Perth on 19 February 2020. Mr Talbot was self–represented. The Secretary was represented by Ms Hinwood from the Department of Social Services. The parties appeared by telephone.
The documents admitted into evidence consisted of:
(a)Mr Talbot’s final submissions dated 9 February 2020 (A1a);
(b)Mr Talbot’s additional documents to final submissions dated 17 February 2020 plus attachments (A1b);
(c)Mr Talbot’s supplementary submissions dated 25 November 2019 plus list of authorities (A2);
(d)the T-documents (T1 to T22) (282 pages) (T1 to T22) (R1);
(e)the Supplementary T-documents (ST1) (2 pages) (R2); and
(f)the Secretary’s Statement of Issues, Facts and Contentions and attachments dated 15 November 2019 (R3).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that both parties were provided an opportunity to address it, either orally or in writing.
Mr Talbot gave evidence that on 17 August 2018, he reported to Centrelink that the change to his superannuation details (which he advised Centrelink about on
10 December 2016, refer to R1, T19 at page 127) had not been updated (refer to A1a). Mr Talbot said that on 17 August 2018, the Centrelink service officer saw that the change had not been updated and decided to pay him arrears from the last update he had made, being 20 March 2018 to 15 August 2018, until he could bring in the notification documents going back to 2016. Mr Talbot said that he understood that once he provided the outstanding information to Centrelink regarding matters relating to 10 December 2016, which he did on 23 August 2018 (R1, T16), he would receive “the full amount of arrears” (transcript at page 18, paragraph [10]).
Mr Talbot said that the whole reason for going to Centrelink on 17 August 2018 was to rectify matters that took place on 10 December 2016 and “this whole business with the Tribunal is to rectify that matter” (transcript at page 32, paragraph [45]).
At the hearing, Mr Talbot gave evidence to the effect that he could not see why anything to do with the rate notice dated 14 August 2018 or the payment of arrears of age pension for the period 4 July 2018 to 1 August 2018 had any relevance to his application because that period does not relate to the period of time for which he seeks payment of arrears, that is, from 10 December 2016. Rather, Mr Talbot said, the rate notice dated
14 August 2018 was “for a totally different situation” (transcript at page 17, paragraph [35]). In this regard, in Mr Talbot’s view, the present application concerns three “review dates” which, in his view, should all be upheld as they comply with ss 78 and 110(1) of the Administration Act:
(a)10 December 2016 – Mr Talbot said that arrears ought to be granted from this date to correct Centrelink’s error in failing to action the asset information he provided on this date.
(b)
17 August 2018 – Mr Talbot said that he provided further evidence to Centrelink on this date regarding the change to his assets as at 10 December 2016, the

20 March 2018 date being only temporary and would result in the payment of arrears from 10 December 2016, once he provided the remaining information relating to that date.
(c)23 August 2018 – Mr Talbot said that it was on this date that he informed the Department of the events of 17 August 2018 concerning his arrears going back to December 2016.
Mr Talbot said that he considered all three dates (at paragraph [26] above) to be individual reviews because “surely when you go to Centrelink and you ask them to do something, isn’t that considered a review?” (transcript at page 24, paragraph [30]).

Ms Hinwood stated that rather, what had occurred on 17 August 2018 was that Mr Talbot provided documents to substantiate the assets update that was commenced online on

20 March 2018. Ms Hinwood said that was taken by the Centrelink service officer, to the benefit of Mr Talbot, to be as though Mr Talbot had provided all the relevant information on 20 March 2018 and so his rate of payment was updated from that date. Ms Hinwood said that this update was entirely separate to the update that was made in December 2016 (transcript at page 19).
As to Mr Talbot’s characterisations of the “three reviews” at paragraph [26] above, Ms Hinwood said it is only the 23 August 2018 date that is in fact a review. Ms Hinwood said that the earlier two dates (10 December 2016 and 17 August 2018) were simply Mr Talbot submitting further information in relation to the calculation of his age pension and so in that sense the provisions relating to review of decisions do not apply to those earlier two dates “perhaps in the way Mr Talbot has submitted that they might” (transcript at page 24, paragraph [15]).
During cross-examination, Mr Talbot said that after submitting his information in December 2016 in relation to the change in his assets, he did not receive any kind of acknowledgement or response from Centrelink. Rather, Mr Talbot said, he “just assumed they’d automatically correct it” and based on that assumption he did not take any further action (transcript at page 26, paragraph [5]).
Mr Talbot said that as for the correspondence he received from Centrelink throughout 2016 and 2017 regarding his age pension, he did not read those documents carefully, assuming they were a summary of the information he had given to Centrelink. Mr Talbot said that he did not realise those documents were “an actual update of information” (transcript at page 26, paragraph [25]). Mr Talbot also said that by March 2018 he was still under the impression that the information he had provided to Centrelink back in December 2016 had been applied to his records.
Ms Hinwood then put it to Mr Talbot that when he went on to update his information in 2018 because of a new circumstance, it was only after that that he realised that the 2016 information had not been applied. Mr Talbot agreed with Ms Hinwood’s proposition and said that it was on 15 August 2018 that he checked his assets and found that the update from December 2016 had not been applied.
Ms Hinwood went on to make the following contentions for the Secretary in support of its primary position that arrears of age pension cannot be paid to Mr Talbot from a date earlier than 4 July 2018 as:
(a)There is no evidence to indicate that Mr Talbot requested a review of the decision to pay him arrears of age pension (from 20 March 2018 and not a date earlier) within 13 weeks of receiving notice of that decision.
(b)Mr Talbot first requested a review of his age pension on 23 August 2018, approximately one week after receiving the notice dated 14 August 2018 for the period commencing 4 July 2018, being within 13 weeks of receiving that notice.
(c)Mr Talbot’s request for review dated 23 August 2018 does not refer to any earlier rates notice and should not be construed as a request for a rates notice that was some years in the past.
(d)In any event, the Secretary’s position is that each rate notice that is issued supersedes the previous notice such that it is no longer open to the recipient to request review of the earlier notice as it has, for legal purposes, ceased to have effect and has been replaced.
(e)In that context, if Mr Talbot was seeking a review of the rate of his age pension, he could have only been seeking a review of the rate decision or notice that was issued on 14 August 2018 and for the period commencing 4 July 2018.
(f)
On the basis of s 110(1) of the Administration Act, the appropriate section concerning date of effect of a favourable determination in the present matter is

s 109 of the Administration Act. That is, Mr Talbot’s request for review dated

23 August 2018 was made within 13 weeks of the original determination, and hence any favourable determination will have effect from that date that the original determination had effect, being 4 July 2018 and not earlier.[9]
[9] See also R3.
Regarding the payment of arrears made to Mr Talbot for the period 20 March 2018 to
15 August 2018, Ms Hinwood stated at the hearing:
(a)it was her understanding that no written notice of this payment of arrears was ever made.
(b)
Mr Talbot was orally advised that this payment was being made for the period

20 March 2018 to 15 August 2018 on the basis of information in relation to an assets update that Mr Talbot had commenced online on 20 March 2018 (refer to R1, T22 at page 264).
(c)Subsequently, on 17 August 2018, Mr Talbot provided documentation to support that update of assets.
(d)It was on the basis of reviewing the documentation that a Centrelink service officer decided to pay arrears from the date Mr Talbot commenced his online update (R3, Attachment B).
(e)The Secretary remains of the view that there was “not necessarily” a basis in the legislation for the decision to pay arrears to Mr Talbot for the period 20 March 2018 to 15 August 2018 to have been made (transcript at page 14, paragraph [30] and page 30, paragraph [40]), nor is there any written decision to explain how it was calculated.
(f)
Having reviewed the substance of Mr Talbot’s request for review dated

23 August 2018 (R1, T16), it seemed that, in fact, Mr Talbot may have sought review of the decision to pay him arrears in the amount relating to the period

20 March 2018 to 15 August 2018 (R3, Attachment A), rather than in the amount relating to the payment of arrears from 4 July 2018 to 1 August 2018

(R3, Attachment B), the latter period being the subject of the rate notice dated

14 August 2018 (R1, T15) and delivery date of 16 August 2018 (R3,

Attachment A).
(g)
If, in fact, the decision to pay arrears for the period of 20 March 2018 to

15 August 2018 is the decision that is before the Tribunal, it is the Secretary’s alternative position that arrears cannot be paid earlier than 20 March 2018 in any event in light of:
(i)
subsection 110(1) of the Administration Act, on the basis that Mr Talbot informed Centrelink regarding his change of circumstances on

20 March 2018; or
(ii)subsection 109(3) of the Administration Act, on the basis that 1) Mr Talbot was not given notice of the decision to pay arrears from 20 March 2018 and 2) Mr Talbot’s attendance on 17 August 2018 is construed as a continuance of his application for review regarding the decision to pay arrears from 20 March 2018, under s 129 of the Administration Act (refer to paragraph [28] above).
And, if so, there would be no benefit to Mr Talbot as he has already been paid arrears from 20 March 2018.
(h)Therefore, it seems from Mr Talbot’s written submissions and oral evidence at the hearing that it was in fact the determination made following Mr Talbot’s conduct on 17 August 2018 (as it relates to his online update commenced on 20 March 2018) that he is seeking to be reviewed by the Tribunal (transcript at page 30, paragraph [45]).
CONSIDERATION
This review concerns the AAT1’s decision dated 18 June 2019 that arrears should have been paid to Mr Talbot from 4 July 2018. The AAT1 did not disturb the reference in the ARO’s decision dated 9 March 2018 to the correct start date for payment of arrears to

Mr Talbot being 20 March 2018 as opposed to 4 July 2018 as it presumed that the reference to the 20 March 2018 date was made in error.
Given the evidence before this Tribunal, however, the reference to the 20 March 2018 date in the ARO’s decision was likely to have been deliberate, although it may have been made without reference to the legislation. The Tribunal considers this further below.
The following facts are not in dispute:
(a)Mr Talbot was granted the age pension in November 2016 and remains entitled to age pension.
(b)On 10 December 2016, Mr Talbot submitted various documents to Centrelink in relation to a change in his assets, which was not actioned by Centrelink at that time. The Department has been unable to provide any explanation as to how the error occurred.
(c)Various instances of correspondence was sent to, and received by, Mr Talbot from Centrelink after he provided the update to his assets in December 2016.
(d)On 20 March 2018, Mr Talbot sought to further update his assets in relation to a separate and later change to his assets. At this time, Mr Talbot was of the understanding that the earlier updated asset information provided in December 2016 had been actioned by Centrelink.
(e)
On 17 August 2018, Mr Talbot attended a Centrelink office and provided documentation in support of the updates he commenced online on 20 March 2018. On the basis of evidence submitted by Mr Talbot on that date, a Centrelink Service Officer reassessed his rate of age pension and arranged for arrears to be paid from 20 March 2018 to 15 August 2018, to be delivered on 21 August 2018

(R3, Attachment B).
(f)
The payment of arrears of age pension to Mr Talbot from 20 March 2018 was not formally communicated to him, however there is a record of payment

(R3, Attachment B), which is, arguably, a decision made in terms of paying him an amount of age pension.[10]
[10] Refer to footnote 5 above in this regard.
Mr Talbot claims that he is entitled to be paid arrears of age pension from

10 December 2016, on the basis that he submitted information regarding a change to his assets, which Centrelink did not use to update his entitlement and therefore his rate of age pension was incorrect.
The Secretary’s position, however, is that arrears are not payable from

10 December 2016 despite the information not having been actioned in the appropriate manner and an administrative error being made, because there is no legislative provision that would enable Mr Talbot to be paid from that date.
In this context, at hearing, Ms Hinwood asked the Tribunal to take heed of the fact that there had not been a determination as a result of the information that was submitted on

10 December 2016, and so to the extent that any determination could be reviewed, “there simply isn’t one” (transcript at page 37, paragraphs [40]-[45]).
Which decision did Mr Talbot request be reviewed and when did he make the related request?
The Tribunal must first consider which particular decision Mr Talbot seeks to be reviewed, when that request was made and, once that has been determined, whether there is any scope in the social security legislation for that particular decision to be reviewed.
The Tribunal notes, critically in its view, that there are two separate instances where Mr Talbot sought to provide updated asset information to Centrelink, being:
(a)10 December 2016 – his provision of information (R1, T8), which was never actioned by Centrelink and which “this whole business with the Tribunal is to rectify” (refer to paragraph [25] above); and
(b)
20 March 2018 – where Mr Talbot commenced an online update of his asset information, providing substantiating documents at his visit to Centrelink on

17 August 2018. Mr Talbot has already received the benefit of providing this updated information on this date in that arrears have already been paid for the period 20 March 2018 to 15 August 2018.
As to the matters at paragraph [42] above, the Tribunal in turn notes that there is no evidence before it, nor is it claimed by the parties, that Mr Talbot ever sought to provide updated asset information regarding the rate notice issued to Mr Talbot on

14 August 2018, setting out Mr Talbot’s rate of payment of age pension for the period

4 July 2018 to 1 August 2018.
It is clear from Mr Talbot’s written submissions and his oral evidence at the hearing that he believes Centrelink’s error entitles him to be paid arrears of age pension going back to 10 December 2016.
However, whether Mr Talbot became aware of Centrelink’s error in not correctly applying the information he provided in December 2016 at a point in time within the 13 week period for seeking a review or beyond has no bearing on the present proceedings, because there is no evidence before the Tribunal that a determination (whether it be a rate notice or record of payment) relating to this information was ever made.
Mr Talbot’s evidence that he was unaware of Centrelink’s error until 15 August 2018, his subsequent attendance at Centrelink on 17 August 2018 and his written request for review on 23 August 2018) does not, in the Tribunal’s view, assist him in establishing his claim regarding his entitlement to arrears of age pension from 10 December 2016.
Further, the evidence before the Tribunal is that it was Centrelink who first became aware of its own error regarding the information provided by Mr Talbot on 10 December 2016 at the time Mr Talbot sought review of Centrelink’s decision to pay arrears of age pension from 20 March 2018, that is, on 23 August 2018.
The rate notice that was issued closest in time to Mr Talbot’s written request for review dated 23 August 2018 was the rate notice dated 14 August 2018 relating to the payment period 4 July 2018 to 1 August 2018. The Secretary’s position relating to 4 July 2018 being the earliest date on which Mr Talbot could have been paid arrears (see paragraph [33] above) appears to be solely based on the fact that the 14 August 2018 notice is the only notice that was issued within the 13 week review period that had not yet been superseded by previous rate notices.
However, looking at the substance of the request for review dated 23 August 2018, it cannot reasonably be said, nor was it ever Mr Talbot’s claim, that he sought review of the payment rate or date of effect relating to the rate notice dated 14 August 2018. Rather, that review request:
(a)details Mr Talbot’s claim of his discovery of Centrelink’s error regarding his provision of information on 10 December 2016 in the previous week, which for reasons set out at paragraphs [44] to [47] do not form part of the present application; and, in any event,
(b)requests payment of arrears of age pension from a date earlier than March 2018 (the May 2018 reference being a typographical error[11]) on the basis of updated information provided in August 2018.
[11] Refer to footnote 6 above.
On the basis of his written request dated 23 August 2018, it could never be said that

Mr Talbot disputed the amount of the arrears payment for the period 20 March 2018 to

15 August 2018 (the only record of which appears in R3, Attachment B, which of itself is a determination,[12] although there is no record of a formal rate notice ever having been issued). Rather, what Mr Talbot sought, and how the decision-maker at each particular point in time chose to characterise it, was to effectively close the gap in payment of arrears of age pension for the period between 10 December 2016 and 19 March 2018 by bringing significantly forward the date of effect.
[12] Refer to footnote 5 above.
Based on paragraphs [41] to [50] above, the only decision Mr Talbot ever requested be reviewed, on the basis of his online update request on that date, was the 20 March 2018 determination, being a review by construction as opposed to an express request for review (see subparagraph [52](b) below). As arrears have already been paid to Mr Talbot for this period, he has already received the benefit of seeking that review and to seek further review would never give the outcome intended by Mr Talbot in paragraph [50] above. The Tribunal notes the Secretary’s position outlined at subparagraph [33](d) above in this regard.
Whether Mr Talbot can be paid an increased rate of age pension earlier than

20 March 2018
Given the Tribunal’s finding above that the decision to pay arrears for the period of

20 March 2018 to 15 August 2018 is the decision that is before the Tribunal, it adopts the position that arrears cannot be paid from a date earlier than 20 March 2018 in any event in light of:
(a)section 110(1) of the Administration Act, on the basis that Mr Talbot informed Centrelink regarding his change of circumstances on 20 March 2018; or
(b)subsection 109(3) of the Administration Act, on the basis that 1) Mr Talbot was not given notice of the decision to pay arrears from 20 March 2018 and 2) Mr Talbot’s attendance on 17 August 2018 is construed as a continuance of his application for review regarding the decision to pay arrears from 20 March 2018, under s 129 of the Administration Act.
In summary, pursuant to ss 110(1) and 109(3) of the Administration Act, and subject to the Tribunal’s discretionary power considered below, Mr Talbot cannot be paid arrears of age pension on a date earlier than 20 March 2018.
Whether the Tribunal’s discretionary power can be exercised
The only possible way Mr Talbot can be paid arrears from a date earlier than

20 March 2018 (and indeed, as he claims, going back to 10 December 2016), is if the Tribunal has the power to make a different order under s 43(6) of the AAT Act.
The Tribunal’s discretion afforded by s 43(6) of the AAT Act applies only where the Tribunal is varying a decision or substituting a decision. As the Tribunal has formed the view that the decision under review was correct under the legislation, that is, Mr Talbot cannot be paid arrears of age pension on a date earlier than 20 March 2018, there is, in effect, no discretion to vary or substitute that decision.
The Tribunal also finds in this regard that nothing turns on Mr Talbot’s lack of understanding relating to the communications he received from Centrelink over the years[13] or his stated belief that Centrelink has a moral duty to correct its error.[14]
[13] Refer to paragraph 31 above.
[14] Refer to, for example, A1a, A1b and A2.
Therefore, s 43(6) of the AAT Act does not apply to Mr Talbot’s application.
CONCLUSION
Mr Talbot claims he is entitled to the payment of arrears of age pension from a date earlier than 20 March 2018, namely 10 December 2016. The Tribunal empathises with

Mr Talbot’s circumstances in his seeking to do so. The Tribunal has found that there is no legislative basis for Mr Talbot to be paid arrears of age pension from any date earlier than 20 March 2018 and that it has no discretionary power to make any other order.
DECISION
The decision of the AAT1 dated 18 June 2019 is affirmed.

I certify that the preceding 59 (fifty -nine paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

....[sgd]....................................................................
Associate
Dated: 19 March 2020

Date of hearing: 19 February 2020

Applicant: By phone

Representative for the Respondent: Ms L Hinwood

The Tribunal notes there is no record of a corresponding rate notice for the period 20 March 2018 to

15 August 2018 having been generated and sent by Centrelink. The exact date and the basis upon which the arrears of age pension were backdated to 20 March 2018 are unclear from the evidence. However, by s 108 of the Social Security (Administration) Act 1999 (Cth), the Department’s decision to pay Mr Talbot arrears of age pension from 20 March 2018 under s 78 of the Social Security Act 1991 (Cth) was a favourable determination.

[2020] AATA 591

19 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Date of hearing:	19 February 2020
Applicant:	By phone
Representative for the Respondent:	Ms L Hinwood