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

[2017] AATA 1638

Thompson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1638 (7 September 2017)

Division:GENERAL DIVISION

File Number(s):      2017/1075

Re:Larry Thompson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:7 September 2017

Date of written reasons:        6 October 2017

Place:Sydney

The Tribunal affirms the decision under review, that is, the decision of the Social Services and Child Support Division made on 25 January 2017.

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Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY - Age Pension – applicant’s Age Pension from 10 July to 30 June based on incorrect superannuation calculation – should applicant be paid in arrears for the Age Pension based on correct superannuation calculation – section 109 of the Social Security (Administration) Act 1999 does not allow for this – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1991(Cth) ss 78, 84, 85A, 109

Administrative Tribunal Act 1975 (Cth) s 43(6)

CASES

Totten and Secretary, Department of Social Services [2016] AATA 240

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

6 October 2017

1. The applicant, Mr Thompson, seeks review of a decision of the Social Services and Child Support Division of this Tribunal made on 25 January 2017, which affirmed the decision made by the Authorised Review Officer, ARO, on 19 October 2016.  The ARO stated in that decision:

   I have reviewed the decision made on 7 August 2013 to pay you a reduced rate of the Age Pension from 10 July 2013. 

   I would like to apologise for the time it has taken to review this decision and thank you for your patience…I have determined that any Age  Pension arrears owed to you from 1 July 2016 are payable.

   …You requested a review because you never had that amount of superannuation from the date your Age Pension was granted, and you never received payment letters or income statements therefore you did not know until recently that the superannuation was coded.  You are requesting Aged Pension arrears from the date of Age Pension grant.

2. The ARO also stated in its decision that:

   Your contact with the department on 18 August 2016 constitutes a request for a review of your rate of Age Pension.  This contact was made within 13 weeks of the adjustment of your rate of Age Pension, which took effect from 1 July 2016. 

   You can therefore receive Age Pension arrears from 1 July 2000 to 17 August 2016

3. Both parties agree that the value of AUSCOAL superannuation used to determine the applicant’s rate of pension in August 2013, $323,458, was incorrect.  So, the superannuation balance was $129,169.08 on 31 December 2012, $109,188.39 on 1 July 2013; and $92,857.30 on 31 December 2013.  Other superannuation statements have been provided to the Tribunal up until 2016.

4. The issue in this case is whether a decision can be made by this Tribunal so that the applicant receives aged pension in arrears from the date he was granted aged pension in 2013.  The difficulties in this case are the provisions of section 109 of the Social Security (Administration) Act 1991(Cth).

5. A “favourable determination”, means a determination under section 78, 84 or 85A. Section 109 sets out the date  a favourable determination takes effect in a number of different circumstances:

   (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

6. That is, the date of the original determination.  The difficulty in this case is that Mr Thompson applied for the arrears nearly three years after he was granted the pension in 2013; that is, in August 2016.  The next provision of section 109 is subsection (2), which provides:

   (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 give, 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.   

7. Subsections 3 and 4 relevantly provide:

   (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 not given 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.

8. Further, subsection 7 relevantly provides:

   (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.

9. So, the effect of s 109(7) is that it has been applied by the ARO, in this case, to allow the arrears to be paid back to the date of the indexation, 1 July 2016.

10. Considering the facts of this case, there is extensive material before the Tribunal, including the T documents, an affidavit and the oral evidence of Mr Thompson.  It is clear on that material that he filled out an application form for aged pension that was issued to him on 18 June 2013 which had been “pre-populated” with his name, address and weekly income from GIO.  He signed and dated the form on 19 January 2013.

11. The Tribunal finds that Mr Thompson attended Centrelink on 20 June 2013 and provided additional information to that included in his application form.  That is reflected in the document at page 106 of the T documents and in his oral evidence.  The $323,458 AUSCOAL superannuation figure appears in that document.  It was an error.  The applicant has dealt with this matter in considerable and thoughtful written submissions. However, the central issue is whether there was an original decision within the meaning of the legislation or whether it was some other form of determination as argued on behalf of the applicant.

12. The Tribunal finds that it was an error of fact, not law.  How it has happened is not perhaps established on the balance of probabilities before the Tribunal.  There was a range of possibilities.  One possibility was that the figure had come from records previously provided by Mr Thompson to Centrelink in relation to a low income health care card, which he received in about 2002 or 2004.  Another possibility is that it was an error made by the case officer who was making notes on a computer during the interview with Mr Thompson on 20 June 2013.  Another possibility is that it was just a random error.

13. However, the Tribunal is not persuaded that basing the payment to Mr Thompson on  that error leads to the conclusion that the decision was not one that is a decision, relevantly, under the various provisions of the Social Security (Administration) Act 1991 (Cth)  discussed during the proceedings and in the submissions.

14. I will now deal with submissions made on behalf of the applicant.  At paragraph 14 of the applicant’s submission, it was said “[o]n its face, the claim (being the approved application form tendered in evidence) does not provide a basis for the rate actually paid” and the decision was therefore erroneous.

15. As the Tribunal stated it finds that additional information was provided to Centrelink on a day after the application had been filled out and the origin of the AUSCOAL superannuation amount is not identifiable on the balance of probabilities.   However, it does not accept that the claim was incomplete and that somehow the application should have been refused until complete details were provided.  There were details provided on which the decision was made. It also does not accept that there was a lack of details that led to the requirement that the payment be made at the maximum rate until the details were provided. Further, the Tribunal does not accept that it was an arbitrary rate that was paid; it was the result of an error.

16. The Tribunal does not accept that the original decision to grant Aged Pension cannot be held to be a determination on any ordinary meaning of the word or, more relevantly, within the meaning of the statute.  The Tribunal considers that the decision was an action authorised by statute.  The primary decision is the decision granting the pension, albeit at an incorrect rate.  The Tribunal does not accept that there was no determination made.

17. The applicant’s submissions dealt in detail with various provisions in the legislation, namely, section 83, section 84, section 103, in relation to computer details that have changed or some impact by computer records in relation to an application in order to seek to distinguish Mr Thompson’s case from the cases that are dealt with by all those provisions.  The Tribunal does not accept that argument assists Mr Thompson in this case.

18. Paragraph 34 of the applicant’s written submissions state that a determination at law could not have been possible before the superannuation details were provided because no valid computer program was engaged to calculate a reduced rate, and, seemingly, no decision maker either. The submissions state that this means the payment was arbitrary, erroneous and unlawful and that it was an additional step without power.  The Tribunal does not accept that submission because it is the essential finding that there was an error of fact in relation to the information relied upon to determine the rate of pension.

19. The Tribunal considers that pursuant to section 109 the decision was an original decision. It does not accept the submissions made seeking to distinguish this case.

20. Section 43(6) of the Administrative Tribunal Act 1975 provides:

    (6)  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 (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), 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.

21. 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.

22. 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.

    DECISION

23. The Tribunal affirms the decision under review, that is, the decision of the Social Services and Child Support Division made on 25 January 2017.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate

Dated: 6 October 2017

Date(s) of hearing:

6 September 2017

Solicitors for the Applicant:

Solicitors for the Respondent:

Mr L Hagan, Baker & Borthwick Solicitors

Dr S Thompson, Department of Human Services