Tavitian and Secretary, Department of Family and Community Services

[2004] AATA 1139

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2004] AATA 1139

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/119

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KATINA TAVITIAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date13 October 2004

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal  affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – bereavement payment – entitlement to arrears of lump sum bereavement payment – request not made within 13 weeks of original decision – decision affirmed

Social Security (Administration) Act 1991 s 109

ORAL REASONS FOR DECISION

13 October 2004   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 11 March 2004, which affirmed the decision of an Authorised Review Officer of 28 January 2004, regarding the amount of the lump sum bereavement payment to be paid to the applicant.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents), together with the exhibits tendered by the applicant who did not attend the Hearing, but was represented by her son, Mr David Tavitian.  Ms Pugsley represented the respondent (the Department).

3.      The applicant and her late husband had been in receipt of Age Pension when he died on 20 October 2000.  Centrelink was advised of this on that day, and the husband’s Age Pension was cancelled from 19 October 2000.  On 23 October 2000 Centrelink wrote to the applicant advising her that she was entitled to a lump sum bereavement payment of $1,681.24, which was paid into her bank account on 25 October 2000. 

4.      On 19 December 2003, the applicant’s son contacted Centrelink on her behalf, to request that the bereavement payment his mother had received in October 2000 be recalculated.  On 31 December 2003 it was determined that the original decision of October 2000 would not be changed, and the matter was referred to an Authorised Review Officer.  On 28 January 2004, the Authorised Review Officer, whilst agreeing the amount paid was incorrect and should have been $1,845.90 (a difference of $164.66), decided in accordance with s 109 of the Social Security (Administration) Act 1991 (the Administration Act) that arrears were unable to be paid as the applicant’s request for review was not made within 13 weeks of the original decision.  Section 109 of the Administration Act, as far as is relevant for the purposes of this review, provides:

“(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.”

5.      On 11 March 2004 the SSAT affirmed the decision, and in the course of its reasons for decision stated:

“SUGGESTION FOR FURTHER ACTION

The Tribunal suggests that the Department consider making a payment to Mrs Tavitian pursuant to Chief Executive Instruction 3.21 with reference to Regulation 9 of the Finance Management and Accountability Requirements 1997 or the Compensation for Detriment Caused by Defective Administration Scheme.  The Tribunal itself has no power to order such payments to be made.

The Tribunal’s reasons for making this suggestion are that Mrs Tavitian has suffered detriment in that she has not received moneys to which she would have been entitled on 25 October 2000 had Centrelink not miscalculated and erred with respect to her correct entitlement of Lump Sum Bereavement Payment.  This payment is intended to assist with funeral costs, and at the time Mrs Tavitian had insufficient funds to cover the costs of her husband’s funeral.

It is the view of the Tribunal that Mrs Tavitian has been seriously disadvantaged as a result of an administrative error on the part of Centrelink, and is very sympathetic with Mrs Tavitian’s case.  The Tribunal considers that a payment equivalent to the amount by which her Lump Sum Bereavement payment was reduced on 25 October 2000 be paid to her.”  [T2/11]

6.      On 21 April 2004, the applicant applied to this Tribunal for a review of that decision, and stated under the heading of “Reasons for Application”:

“Enforcement of correction to the calculation of Centrelink to the underpayment of Bereavement payment plus loss of interest.”

7.      The applicant maintains that time limits in s 109 of the Administration Act do not apply in this matter.  The decision to grant her the bereavement payment she maintains, was correct.  She is not applying for review of that decision regarding a grant of “payment" under the legislation.  The application relates to the rectification of a mathematical error - the amount of the payment, not the payment itself.  The decision does not encompass a mathematical error.  The Government would not legislate to deprive a citizen of the right to challenge the calculation.  It is not the intention of s 109 of the Administration Act to deprive her of her rights.  There would be chaos in the country if this was so.

8.      The applicant maintains also, that s 109 of the Administration Act is not applicable to a single payment, such as a benefit or bereavement payment, but applies only to ongoing payments of pension or allowance, and finally that the decision provided no information as to how the payment had been calculated, and therefore no information upon which she could challenge the calculation.  It was only 3 years later that her son made inquiries, and ascertained the calculation was incorrect.  This is not fair, and could not have been intended by the Government.

9.      The Department accepts that the amount of lump sum bereavement payment paid to the applicant was incorrectly calculated, and that she was not paid her correct entitlement as a consequence.  It contends however, that the additional entitlement cannot be paid under Social Security legislation.  The ability to pay arrears, following a favourable decision, is governed by s 109 of the Administration Act, which allows for arrears to be paid, following a favourable decision, only where the person is given notice of the original decision, and then applies for a review of that decision within 13 weeks. 

10.     The applicant was advised of the decision to pay a lump sum bereavement payment of $1,681.24 by letter dated 23 October 2000.  Her request for a review of that decision was not made until 19 December 2003, some 3 years after the original decision was made and notified.  While the Department acknowledges that the applicant was distressed at the time she was notified of the decision, there is no provision within the legislation to allow the outstanding entitlement to be paid.

11.     In my view, the decision to grant the bereavement payment, and the calculation of the quantum of the payment is the "payment", and the "original decision" in accordance with the legislation.  The time limits set out in s 109 of the Administration Act relate to this decision, and s 109(1) of the Administration Act allows for arrears to be paid following a favourable decision, only if the person applies for review of that decision within 13 weeks.  The applicant applied for a review some 3 years after the decision, and I consider that there is no provision within the legislation to allow the outstanding entitlement to be paid.

12.     On 1 June 2004, Centrelink wrote to the applicant’s son advising him that the applicant's claim for compensation for detriment caused by defective administration had been successful.  He was required to sign a Deed of Release prior to payment being made.  He refused to sign the Deed of Release, and returned it with the following notation:

"Not accepted.  Inadequate explanation of the reasons for the decision to accept.

Dated 04-06-04"

13.     On 9 June 2004, Centrelink wrote to the applicant’s son in part as follows:

“…

Where a claimant seeks compensation, they or their representative can simply state what has happened, what loss they believe they have incurred and how Centrelink’s actions contributed to this.  For claims other than equivalent of a Centrelink payment that they have not received, claimants will need to provide supporting evidence such as notices or receipts, or medical evidence of personal harm.

We will assess and decide each claim in accordance with the policies and guidelines of the Commonwealth.  Experienced senior officers who have had no previous involvement in the customer’s business with Centrelink will make decisions.

If a claimant suffers financial loss due to a mistake that Centrelink has made, we will offer the most suitable remedy available, and in some circumstances this may include monetary compensation to the equivalent of payment foregone.

The Commonwealth Department of Finance and Administration established the Compensation for Detriment caused by Defective Administration (CDDA) scheme in October 1995, to enable Commonwealth agencies to compensate person[s] who have been adversely affected by the ‘defective’ actions or inaction of such agencies, but who have no other avenues to see[k] redress.  A complete appraisal of the scheme can [be] located on the Department of Finance and Administration’s web site at

circular no 2001 01.html

The settlement offer of $164.00 has been made to you under the above mentioned scheme and a Deed of Release has been prepared for your signature.  Should you wish to take advantage of the offer, you should contract the Salisbury Customer Service Centre and a time can be arranged for you to sign the Deed of Release.  This offer will remain open indefinitely, although if you do not accept the offer within six months, the matter will  be withdrawn and steps will need to be taken at a later date to reopen the case.”  [Exhibit A2]

14.     Centrelink received a letter from Mr Tavitian dated 29 July 2004, which reads as follows:

“The deed of release made on 01-06-04 is detrimental to the rights & entitlements that Mrs K Tavitian has as a result of an administrative error made on the 25-10-00.

The Deed of Release should be amendemended [sic] as follows:

1.The Commonwealth offers to pay David Tavitian the sum of $164.66 as part of compensation for the reduced amount of the bereavement payment made on 25-10-00.

A further claim of financial & non-financial loss will be made in the future.”  [Exhibit A1]

15.     The applicant’s son maintains that he will not sign the Deed of Release in its current form.  He considers it not to be in full settlement of the claim, as he wishes to lodge a claim in the future for financial and non-financial loss suffered by his mother.  In the course of the Hearing, he stated that he would be seeking interest on the amount of $164.66 from the date of the decision, being 23 October 2000.  He said that it could take him some time to quantify financial loss and quantify non-financial loss in accordance with the Compensation for Detriment caused by Defective Administration (CDDA): Guidelines for Agencies [Exhibit A3].

16.     The applicant is in the situation now, that if her son was to sign the Deed of Release in its current (or some amended form), she would receive the balance of her entitlement, namely the $164.66; but it would appear that in the light of her son’s attitude to the matter, she will continue to be embroiled in dispute with the Department in relation to a payment which the Department acknowledges was defective, and which was made some 4 years ago.

17.     For these reasons the Tribunal affirms the decision under review. 

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  13 October 2004
Date of Decision  13 October 2004
Counsel for the Applicant         Mr D Tavitian (applicant's son)
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Service Recovery Team