Travers and Secretary, Department of Social Services (Social services second review)
[2020] AATA 5182
•22 December 2020
Travers and Secretary, Department of Social Services (Social services second review) [2020] AATA 5182 (22 December 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3064
2019/3067
2019/3070
Re: Stephanie Travers
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:22 December 2020
Place:Sydney
The decisions under review are affirmed.
.........................[sgd]..........................................
Chris Puplick AM, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – Newstart Allowance – accepted claims – whether earlier date of payment possible – no appeal within 13 weeks – decisions under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 23, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 42, 107, 109, 237
Secondary Materials
Guides to Social Policy Law – Social Security Guide – Version 1.275 – Released 7 December 2020
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 December 2020
This application touches upon three separate decisions made in relation to the entitlements of Ms Stephanie Travers (the Applicant) for disability support pension (DSP)(two matters) and Newstart Allowance (NSA).
With the exception of the first DSP claim, in each case it is agreed that the Applicant was entitled to receive the payments, but it is contested as to the date upon which the Applicant’s payments should commence. The Secretary, Department of Social Services (the Respondent) has determined a date for each which the Applicant disputes.
There is an added complication in this matter in that, from 8 January 2014 until 17 February 2015 the Applicant was not in control of her own affairs as they were being managed in the first instance by her sister (8 January 2014 to 25 July 2014) and thereafter by the NSW Trustee and Guardian. Orders making these appointments were issued by the Guardianship Division of the NSW Civil and Administrative Tribunal.[1]
[1] Tribunal documents at [203], [217].
The three decisions
First DSP: the Applicant made a claim for DSP on 19 November 2014 which was rejected by the Department on medical grounds. This matter was reviewed by an Authorised Review Officer (ARO) of the Department who affirmed the rejection on 17 March 2015.
Second DSP: the Applicant made a fresh claim for DSP on 17 February 2017 which was again rejected by the Department. However, on this occasion a review by an ARO on 22 June 2017 resulted in that rejection being set aside and the DSP application being accepted from its date of lodgement.[2]
[2] The ARO made an initial decision on 22 June 2017 that the Applicant was qualified for payment of DSP from 3 May 2017, but later corrected that date so as to establish eligibility from 17 February 2017. Tribunal Documents at [9], [115-116], [443].
NSA: the Applicant submitted a claim for NSA on 28 September 2015 which was rejected on the basis that relevant information was not provided by the Applicant. A new claim was lodged by her on 21 November 2016 which was granted effective from 1 November 2016. The Applicant sought a review of the start date by an ARO who affirmed it on 19 January 2017.
In relation to the first DSP decision the Applicant appealed that to the Social Services and Child Support Division of this Tribunal (AAT1) on 24 September 2018. On the following day, 25 September 2018, she appealed the second DSP and the NSA decisions to the same Tribunal.
All three matters were heard together by the AAT1 which, on 24 April 2019 issued separate decisions affirming all three Departmental determinations.
The Tribunal notes that the Applicant’s applications to the AAT1 were, in the case of the first DSP decision, 184 weeks, in the case of the second DSP decision 83 weeks, and in the case of the NSA decision, 87 weeks after the dates of the ARO decisions she was challenging. Each of these applications is well outside the statutory 13-week period in which decisions must be appealed. In each case where the Applicant was notified of her appeal rights, the accompanying letter stated:[3]
[3] Tribunal documents at [112].
On 31 May 2019 the Applicant appealed the three AAT1 decisions to this Tribunal, which heard the matter on 1 December 2020 with the parties appearing on the Microsoft Teams platform due to the COVID-19 restrictions on in-person hearings at the Tribunal.
Summary of Applicant’s claims
First DSP
Second DSP
Newstart Allowance
Date claim lodged
19 November 2014
17 February 2017
28 September 2015 (1)
21 November 2016 (2)
Date of final Department or ARO decision
17 March 2015
22 June 2017
(revised on 17 August 2017 (T docs at [443 & 581]))
19 January 2017
Date of payment
None made
17 February 2017
1 November 2016
Date Applicant claims payment should have been made
19 November 2014
9 November 2014
April 2014
The Respondent’s position
The Respondent states that the earliest dates on which payment could be made to the Applicant are:
·First DSP – on 24 September 2018, which was the date on which the Applicant sought a review in the AAT1 of the rejection decision by the ARO. However, for this to be successful it would have to be conceded that the Applicant was medically qualified for the DSP at the relevant time, which the Department does not concede. Even were that part of the claim to be successful the result would be otiose in terms of any payment as the Applicant was already in receipt of the DSP (from the second claim), prior to that date, i.e. from 17 February 2017.
·Second DSP – on 17 February 2017, being the date on which the application for DSP was lodged.
·NSA – 1 November 2016, being the date of the establishment of medical entitlement prior to the Applicant lodging her successful NSA claim on 21 November 2016[4] and after consideration of her earlier NSA claim on 28 September 2015.[5]
[4] Tribunal documents at [435].
[5] Tribunal documents at [109]-[112].
The Applicant’s contentions
The Applicant set out her concerns about the AAT1 decisions in the following terms:[6]
[6] Tribunal documents at [4].
For the AAT1 hearing the Applicant provided a detailed and comprehensive submission of some 79 pages (plus attachments).[7]
[7] Tribunal documents at [123]-[202] with attachments at [203]-[385].
In her submission the Applicant sets out very clearly her history of medical conditions starting with the fact that she was born with spina bifida and has suffered from numerous illnesses and disabilities throughout her life. The Applicant was born in December 1988 and in January 2014 her affairs were placed in the hands of her sister and subsequently with the NSW Trustee and Guardian. She did not regain full personal control of her own affairs until 17 February 2015.[8]
[8] Tribunal documents at [243].
Her personal account of the difficulties she encountered while her affairs were managed by the NSW Trustee and Guardian makes for sobering and challenging reading.[9] It appears that during this period, opportunities were lost to secure both financial and other support to which the Applicant might have been entitled.
[9] Tribunal documents at [140]-[146].
However, a critical point relates to the Applicant’s postal address. While the Departmental file recorded an address at The Ponds as being the Applicant’s residential address throughout the relevant period, from 19 November 2014 to 9 November 2015 her postal address was recorded as being a Locked Bag in Parramatta.[10] That address remained as the postal address on the Departmental file for some 9 months (until 9 November 2015) after the Department had been advised by the NSW Trustee and Guardian (on 2 March 2015) that they were no longer responsible for the management of the Applicant’s affairs, and that future correspondence should be directed to the address at The Ponds.[11]
[10] Respondent’s Statement of Facts, Issues and Contentions at [9].
[11] Tribunal documents at [146].
The Applicant believes that correspondence should have been sent to a different address and nominated a Post Box (Locked Bag) address for this purpose.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions at [23]. Tribunal documents at [476].
That the Department (via Centrelink) continued to send correspondence relevant to the Applicant to the NSW Trustee and Guardian for the better part of a year was quite improper and not in accordance with its responsibility to adjust its records after the guardianship arrangements had been terminated and they had been notified of this.
At much the same time as the Applicant was going through this critical period in relation to her social security claims, she also experienced a severe medical emergency which required major surgery followed by lengthy rehabilitation at Norwest Private and Mt Wilga Rehabilitation Hospitals. Her ability to respond to correspondence or deal with applications for benefits was completely compromised during this period.
Discussion
Unfortunately for the Applicant, sections 107 and 109 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) are unambiguous and unforgiving:
Division 9—Date of effect of determinations
Subdivision A—Determinations relating to claims
107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b) the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her 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) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.
(4) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) no notice is given to the person informing the person of the original decision; and
(c) the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision 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 rejecting a person’s claim for a social security payment or concession card; 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) a decision that the claim be granted is made as a result of the review;
the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
…
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.
What these sections make clear is the following:
·A person must be given “notice” of a decision made by the Department and informed of their review rights;
·They have a period of 13 weeks from the date of notification within which to lodge an application for review; and
·If they lodge their application for review outside of the 13-week period, then the earliest date upon which they can receive a favourable determination is the date upon which the review application was made.
In relation to the first matter, section 237 of the Administration Act provides:
237 Notice of decision
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
The Respondent asserts that all correspondence was sent to the address “last known to the Secretary” and thus is deemed to have been received. Section 237 intersects with section 23(12) of the Social Security Act 1991 (Cth) (the Act) which provides:
23 (12) If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
The Respondent then is in a position to maintain:
Therefore, pursuant to section 23(12) the Act and section 237 of the Administration Act, the notice of the decision sent to the Applicant will be deemed to be effective notice, even if the Applicant did not actually receive the letter (due to hospitalisation or redirection of mail).[13]
[13] Respondent’s Statement of Facts, Issues and Contentions at [109].
In one instance the Respondent actually concedes that correspondence was not received by the Applicant because it was sent to the wrong address.[14]
[14] Ibid at [116].
The Applicant herself has characterised her accommodation arrangements throughout much of this period of her life as “homeless and itinerant.”[15]
[15] Tribunal documents at [141].
The Applicant in her evidence referred on numerous occasions to her concern that the Department “would not allow her” to make corrections to their records. She stated her belief that there was some “note on file” to this effect which restricted her ability to have her own records amended.
In the print-outs of various contacts and conversations between the Applicant and the Department there are clear references on the one hand to the Departmental officers being asked to “check with the customer that their contact details are current”[16] but equally to statements such as “Customer was not contacted for the following reason: internal processing errors.”[17]
[16] Tribunal documents at [433] (13 January 2017)
[17] Tribunal documents at [443].
The DSP claims
The Tribunal cannot follow the logic of the Secretary in the determination made in the first DSP application that the Applicant’s condition of spina bifida was “not permanent” for the purposes of the Act. Nor can it understand, on the basis of the medical evidence available, either the conclusion that the Applicant did not have an impairment for the purposes of section 94(1)(b) of the Act or that she did not have a continuing inability to work under section 94(1)(c). Nevertheless, once that determination was made the Applicant took her opportunity to have the determination reviewed by an ARO. When that decision was unfavourable to her she again had an opportunity to apply for a review at the AAT1 within 13 weeks of her being notified of the decision. Unfortunately, she failed to do so.
By the time of the second DSP application changes in the medical evidence available still did not convince the original decision-maker that the Applicant qualified for the DSP. However, on review the ARO overturned that decision and granted the DSP payment, originally as of 3 May 2017[18] but eventually backdated to the date of application, 17 February 2017.[19]
[18] Tribunal documents at [115].
[19] Ibid at [581].
The Applicant’s appeal to the AAT1 was to the effect that the decision-maker, in relation to her 17 February 2017 application, should have taken into account the DSP claim made in November 2014.
The Tribunal well understands the Applicant’s claim that:
“It is not reasonable to expect an unwell person to fill in complicated forms, legal statements and recount financial information from a period in which they were classified multiple times as lacking legal decision-making capacity.”[20]
[20] Ibid at [159].
Unfortunately for the Applicant, that is the way the legislation works and there is no discretion vested either in the original decision-maker, the ARO or indeed this Tribunal to disregard the provisions of the Act or the Administration Act, or to invent a mechanism to produce a result which is otherwise precluded by the legislation.
By the time that any Tribunal was in a position to review the original ARO decision, the only appeal that was actually on foot was that which accorded with the provisions of sections 107 and 109 of the Administration Act, namely the appeal of 17 February 2017. It follows that this is the earliest date upon which a favourable decision could be made in favour of the Applicant and such a decision was made in her favour. Even if the first DSP refusal were revisited and set aside, there is no statutory mechanism which would allow payments back to any of those relevant dates to be made. Hence it would be unproductive and possibly cruel to the Applicant to go back over that ground and the Tribunal declines to do so.
The AAT1 decision in relation to the appropriate date of payment of DSP is correct.
The NSA claim
In regard to the NSA claim, the Applicant asserts her eligibility for NSA should be taken to have been enlivened in April 2014 when contact with the Department was first made on her behalf by her sister. There is no record either in the Departmental files nor in the written submissions by the Applicant which substantiate that such contact or claim was made.[21] In any case, any verbal application by a third party would not be in accord with the formal requirements for claim-making provided in sections 11 and 16 of the Administration Act.
[21] Respondent’s SFIC at [136].
The Respondent has set out the legislative provisions in relation to the commencement date for any grant of NSA. They appear in its SFIC as:
112. Subsection 11(1) of the Administration Act provides relevantly:
“Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.”
113. Section 41 of the Administration Act provides that unless another provision provides otherwise a social security payment becomes payable on the person’s start day.
114. Section 42 provides that a person’s start day is worked out in accordance with Schedule 2 of the Administration Act.
115. Schedule 2 of the Administration Act sets out rules for working out the start date of a social security payment. Clause 3 of the Schedule sets out the general rule concerning a person’s start day:
"Start day – general rule
3(1)) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made”.
The Applicant first lodged a complete NSA claim on 28 September 2015, but this claim did not include the information which was necessary for a decision to be made. The Department wrote to the Applicant at the Locked Bag (Parramatta) address on 27 October 2015 requesting further information[22] and when this was not forthcoming it notified her of a rejection of her claim on 29 October 2015.[23]
[22] Tribunal documents at [511].
[23] Ibid at [513].
The letter of 29 October 2015 was returned to sender and hence never received by the Applicant.[24] However a copy of this letter was provided to the Applicant when she attended an in-person interview at the Centrelink office at Ingleburn on 11 November 2015. The Applicant’s postal details were updated and confirmed, and she requested that her mother be listed as a nominee for Centrelink purposes. At this interview the record shows that the Applicant was given details of how to make an appeal against the rejection of her NSA claim and that “Cust is aware need to lodge within 13 weeks”.[25]
[24] Ibid at [415].
[25] Ibid at [414].
However, it was not until 21 November 2016, just over one year later, that a new and compliant application for NSA was lodged.
The provisions of section 107 of the Administration Act have already been set out and it can be seen that section 107(3) allows a start date to be determined from the date of an application for a review of a refusal decision – but in this case no such application was ever made.
Section 107(1) governs the date of the commencement of any NSA payments and that operates in concordance with section 42 of the Administration Act which provides that the start date is worked out “in accordance with Schedule 2.”
That Schedule is (naturally) complex but in section 11 provides:
11 Incapacitated claimant
(1) If:
(a) a person becomes incapacitated for work as a result of a medical condition; and
(b) the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and
(c) the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;
the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.
Dr Christopher Grant was one of the Applicant’s principal treating specialists and he issued a medical certificate which advised that she was unfit for either work or study from 1 November 2016 to 1 February 2017.[26] This satisfied the requirements of section 13(2) of the Administration Act to allow the Secretary to accept that 1 November 2016 was the date upon which the Applicant became qualified for payment of NSA and payment of arrears from 21 November 2016 back to 1 November was authorised.
[26] Respondent’s SFIC at [121].
An ARO reviewed this matter and agreed that the Applicant should be paid NSA as from 1 November 2016 rather than any earlier date.[27] The Applicant had 13 weeks from the date of this advice (19 January 2017) to seek a review of this decision which was notified to her at her designated address in The Ponds.
[27] Tribunal documents at [109].
She did not do so, and waited until 25 September 2018 to lodge an application for review.
Section 109 of the Administration Act provides that the earliest date upon which a favourable decision can be given to an applicant seeking review is the date of that application (25 September 2018) even if the applicant was qualified prior to that date.
In effect, the Applicant was already being paid NSA from 1 November 2016 and hence any declaration of her eligibility from 25 September 2018, were the Tribunal to find in her favour, would be meaningless.
Had the Applicant wished to have the Tribunal consider payment of NSA to her from a date prior to 1 November 2016, the only way she could have achieved this would have been to lodge an application for review within the 13-week period provided by the legislation. She failed to do so and must bear the consequences of her own actions in this regard.
The AAT1 decision in relation to the appropriate date of payment of NSA is correct.
Special circumstances
The Applicant has drawn attention to the very difficult circumstances of her life, especially her serious personal health issues, her multiple medical conditions and levels of incapacity; continuing lack of income support, the complexities of her life under guardianship arrangements[28] and negative interactions with members of her immediate family.[29]
[28] Tribunal documents at [123]-[133].
[29] Ibid at [419], [430].
The Respondent recognises and acknowledges these[30] as does this Tribunal.
[30] Respondent’s SFIC at [135].
There are provisions in the Act (section 1237AAD) which provide that the Secretary may take note of “special circumstances” and vary decisions which have otherwise been made under the Act. However, no such provisions exist in relation to any matters which can be of benefit to the Applicant. The dates upon which certain payments can be commenced are defined clearly in the legislation and neither the Secretary, nor this Tribunal has any power to disregard or vary them.
At the same time the Applicant has been caught in a vortex of circumstances involving changing guardianship arrangements, misunderstanding over addresses and delays occasioned by overwhelming medical exigences.
It is not the practice of the Tribunal to give advice to applicants, but in these circumstances, it is perhaps appropriate to draw attention to the system of act of grace payments which are administered by the Commonwealth Department of Finance.
The Social Security Guide at 1.3.6 states:
An act of grace payment is a special 'gift of money' by the Commonwealth. They are payments that fall outside statutory entitlements.
Generally, act of grace payments are a last resort means of providing compensation to persons who may have been unfairly disadvantaged by the Commonwealth but who have no legal claim against it. Other avenues to receive financial assistance from the Australian Government should be investigated before a request is made for an act of grace payment.
…
The act of grace mechanism may be appropriate in relation to special circumstances that have occurred as a direct result of:
·the involvement of an agency of the Australian Government, where that involvement had an unintended outcome in the applicant's circumstance, or
·the application of Commonwealth legislation or policy, which has resulted in an unintended, inequitable or anomalous effect on the applicant's particular circumstances (including in cases where the agency has acted correctly in administering the legislation involved), and
·where the paramount obligation to the applicant is moral, rather than legal.
…
Claims are made in writing and application forms are available from the Department of Finance website.
The Tribunal draws the attention of the Applicant to these provisions, especially that highlighted.
For the reasons stated above, the legislation makes it clear that the Applicant cannot be paid the DSP or NSA on any date prior to those as determined by the ARO decisions in question and as affirmed by the three separate determinations of the AAT1.
DECISION
The decisions under review are affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
............................[sgd].........................................
Associate
Dated: 22 December 2020
Date of hearing: 1 December 2020 Applicant: In person Solicitors for the Respondent: Ms B Erak, Services Australia
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