Tangney and Secretary, Department of Family and Community Service S
[2003] AATA 1172
•21 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1172
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/443
GENERAL ADMINISTRATIVE DIVISION ) Re
Secretary, Department of Family and Community Services
Applicant
And
Brenda Tangney
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date21 November 2003
PlaceSydney
Decision
The decision of the Social Security Appeals Tribunal is set aside and in substitution therefor the Tribunal decides that Ms Tangney did receive notice of a decision by Centrelink to reduce her Parenting Payment Single (“PPS”). There having been notice, the back-dating of the correct rate of PPS can only be to the date of the application for review of the decision, that is 16 July 2002.
[Sgd] Ms N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY- Parenting Payment Single - paid at changed rate – whether Respondent given “notice” of changed payment amount - date from which arrears of payment payable – decision set aside
LEGISLATION
Social Security (Administration) Act 1999 – sections 109(2), (3), 72(1)
CASE LAW
Secretary Department of Family and Community Services v Rogers (2000) 104 FCR 272
Re Secretary, Department of Social Security and Sting (1995) 39 ALD 721
Austin v Secretary Department of Family and Community Services (1999) 92 FCR 138; 57 ALD 330
Re Secretary Department of Social Security and Plug (2000) 62 ALD 187
Re Laurent and Secretary, Department of Family and Community Services (2002) 68 ALD 771
REASONS FOR DECISION
21 November 2003
Ms N Isenberg, Member
BACKGROUND TO THE DECISION UNDER REVIEW
1. On 25 June 2000 Mr Shane Rafter sought rent assistance from Centrelink claiming he paid rent of $100 per week to the Respondent, Ms Tangney (T4). Centrelink apparently cross-linked this information with Ms Tangney’s file and on 9 August 2000 wrote to her to the effect that she would be paid Parenting Payment Single (”PPS”) based on an annual income of $5,204.20 (T5). Similar letters were sent to Ms Tangney on 30 November 2000, 3 May 2001 and 15 August 2001.
2. It was not until 16 July 2002 that Ms Tangney asked Centrelink if she was being paid the correct amount of PPS. When informed that Centrelink relied on the information provided by Mr Rafter, Ms Tangney denied that he had ever paid her rent (T9). She then requested review of the decision which had reduced her PPS (T9). On 12 August 2002 Centrelink notified her that her request for review had been unsuccessful (T10) and she requested a further review (T1). On 10 September 2002 an Authorised Review Officer (”ARO”) affirmed the decision under review, on the basis that as Ms Tangney did not seek a review within the 13-week period, and no arrears were payable (T13).
3. On 20 December 2002 Ms Tangney requested an appeal to the Social Security Appeals Tribunal (T14), where her appeal was successful.
ISSUE BEFORE THE TRIBUNAL
4. The issue before the Tribunal was whether Ms Tangney was entitled to an increased rate of PPS between 6 July 2000 (when her rate was first reduced) and 16 July 2002 (when she first queried her rate of payment).
APPEARANCES
5. A hearing was held before the Tribunal on 23 October 2003 at which an advocate from the Advocacy and Administrative Law Team, Cheryl Collis, represented Centrelink. Ms Tangney was unrepresented but was assisted by her friend, Mr Stephen Smith. Both Ms Tangney and Mr Smith gave evidence.
LEGISLATION
6. The relevant legislation in this matter is the Social Security (Administration) Act 1999 (“the Act”), in particular sections 109(2) and (3), 72(1). Those sections, so far as is relevant, provide as follows:
“109(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.”
“72(1) A notice under this Subdivision:
(a) must be given in writing; and
(b)may be given personally or by post or in any other manner approved by the Secretary; and
(c)must specify how the person is to give the information or statement to the Department; and
(d) must specify:
(i)in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period—the date by which the person is to give each statement to the Department; or
(ii)in any other case—the period within which the person is to give the information or statement to the Department; and
(e)must specify that the notice is an information notice given under the social security law.”
EVIDENCE: Documents
7. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence. In addition, the following documents were tendered:
Exhibit
Item
Date
A1
Applicant’s Statement of Facts and Contentions
9 October 2003
A2
Social Security Appeals Tribunal slip rule amendment for the decision statement
3 October 2003
A3
Centrelink payment summary for the Respondent
2 October 2003
DISCUSSION OF EVIDENCE AND FINDINGS
8. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
9. The Social Security (Administration) Act 1999 provides parameters as to when favourably-reviewed Centrelink decisions will take effect. When notice is given to a person informing him or her of a decision, but the person does not apply for review of that decision until more than 13 weeks later, the new decision takes effect on the day on which the application for review was made (section 109(2) of the Act). However, if no notice of a decision is given, the new decision takes effect on the day on which the original decision took effect (section 109(3) of the Act).
10. For Ms Tangney, if the letters she received from Centrelink amounted to notice then her increased PPS would date from 16 July 2002 but if no notice was given then her increased PPS would date from 9 August 2000. At stake therefore was a difference in PPS of about $30 per fortnight for about two years (Exhibit A3).
11. I therefore had to decide if any of the letters sent to Ms Tangney amounted to a “notice” for the purpose of the Act.
12. The Act sets out in section 72(1) that a notice must specify that it is an information notice given under the social security law. In addition it must be in writing; may be posted; must specify how and within what period the person is to give information.
13. It was Ms Tangney’s evidence that at the time of the first letter she was involuntarily hospitalised (“locked up”) with bi-polar disorder. As Mr Rafter was living in her flat at that time, she did not know if she had received the letter from Centrelink. In relation to the subsequent letters Ms Tangney said she could recall seeing the letters but that she did not read them. While she is not illiterate, Ms Tangney found letters from Centrelink to be full of “lingo”, and not straightforward. She only read the “box” that said how much she was to get as a payment. Ms Tangney said that on her release from hospital there was “so much going on” she did not know what she did and was trying to avoid being hospitalised again. (At the same time she was trying to defend a custody claim in relation to her child.)
14. I accept that Ms Tangney received at least the latter three letters, but may not have read them in detail, only the “box” as to the amount she was to be paid. A requirement that a person be given notice of something does not demand that the matter be brought home to the person’s understanding or knowledge; nor is notice synonymous with knowledge (per Cooper J in Secretary Department of Family and Community Services v Rogers (2000) 104 FCR 272).
15. Ms Collis submitted that the letters satisfy the test the Federal Court applied in Re Secretary, Department of Social Security and Sting (1995) 39 ALD 721; and Austin v Secretary Department of Family and Community Services (1999) 92 FCR 138; 57 ALD 330.
16. In Sting (supra), it was held that the relevant provisions simply require that when a decision regarding rate there be a notification of that decision as to rate; that is, the notice to be valid merely has to set out the total rate payable.
17. In Austin (supra), the Tribunal adopted the approach taken in Sting (supra), acknowledging that Centrelink had supplied the Austins with only “meagre” information. On appeal the Federal Court held that only a statement of the decision was required and not reasons for that decision, however the decision must be in “an appropriate and comprehensive form which notifies the rate of payment and a mere statement of an amount of payment is insufficient”. Drummond J discussed the requirements of section 660K of the Social Security Act 1991, the equivalent section for newstart allowance:
“36. A clear statement by the respondent that a decision has been made fixing the rate of payment [of Newstart Allowance] at a particular figure or that a decision has been made cancelling or suspending [Newstart Allowance], as opposed to information from which an inference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a “notice” [within s 660K]. It is not enough for there to be a “notice” of a prior decision within [s 660K(2) or (3)] that there is notification to the recipient of the amount of the payment [of Newstart Allowance] required to be made by that prior decision.”
18. Austin (supra) and Sting (supra) were followed by the Tribunal in Re Secretary Department of Social Security and Plug (2000) 62 ALD 187. Ms Plug had been advised of her entitlement to family allowance but the letter did not disclose that Centrelink was continuing to take into account $100 of private maintenance, although she had told Centrelink that she had reconciled with her husband.
19. In this case the letters recorded the amount of PPS Ms Tangney was to be paid. Applying Sting (supra), this, in itself, would suffice as notice.
20. Furthermore, from the record of previous payments (Exhibit A3) it was clear that the amount of payment referred to in the letter of 9 August 2000 was less than that previously paid, and payments remained at that same reduced level for some time. The letters therefore notified her of a change in her payments. (See ReLaurent and Secretary, Department of Family and Community Services (2002) 68 ALD 771.)
21. The letters contained a reference to the annual income used in calculating the appropriate payment: some $5204.20, that is, just over $100 per week. The letters, like those in Plug (supra), did not specify the basis for this figure, that is, that Centrelink relied on information provided by Mr Rafter. Ms Tangney’s evidence was that at that time she was receiving about $25 per week in “maintenance”, although this was no longer paid when she lost custody of her child. As this was her only source of income, other than Centrelink benefits, the letters set out information, which should have given her cause to query the basis on which PPS was paid.
22. I therefore find that the letters amounted to notice for the purpose of section 109(2) of the Act. There having been notice, the back-dating of the correct PPS can only be to the date of the application for review of the decision.
23. I note that Ms Tangney strongly argued that it was unfair that she was being penalised for having relied on Centrelink to pay her at the correct level. She also was upset that Centrelink had accepted the information provided by Mr Rafter, and reduced her PPS accordingly, without reference to her.
24. It was also upsetting that Mr Rafter had apparently received rent assistance on the basis of the false information. While Centrelink had been prepared to cross-reference his information so as to reduce her entitlement, it had not done so when he had moved out after a few weeks and must have supplied a different address so as to continue his benefits. I agree with her concerns.
25. While the Tribunal in Plug (supra) accepted that there had been sufficient notification it too noted the “intrinsic unfairness" (at [35]) of the situation where there is no legal obligation to provide the information to the customer which would have put her on notice of the anomaly. The provision of such information should be neither onerous nor costly in the electronically-produced letters which communicate to social security beneficiaries. In this case, Ms Tangney should have been given the opportunity to comment upon the allegation by Mr Rafter that she was the recipient of $100 per week in rent, before Centrelink acted upon that information.
26. In Sting (supra) Deputy President Forgie observed:
“[35] … In addition, experience in this Tribunal shows that there is often a general assumption that the Department will have calculated the rate correctly. That assumption is only dispelled by some other occurrence. By the time it is dispelled the time for review has passed and so too have a person’s rights to be paid that to which he or she would otherwise have been entitled.”
27. In this case Ms Tangney only realised that her PPS was underpaid when she fortuitously conferred with someone in circumstances identical to her own.
DECISION
28. The decision of the Social Security Appeals Tribunal is set aside and in substitution therefor the Tribunal decides that Ms Tangney did receive notice of a decision by Centrelink to reduce her Parenting Payment Single (“PPS”). There having been notice, the back-dating of the correct rate of PPS can only be to the date of the application for review of the decision, that is 16 July 2002.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: L Bonouvrie
AssociateDate of Decision 21 November 2003
Advocate for the Applicant Ms Cheryl Collis
Advocate for the Respondent Self-represented
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