Tucker and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 200

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2500

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIGITTE TUCKER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date13 March 2008

PlacePerth

Decision The Tribunal sets aside the decision under review and remits the matter to the decision maker with a direction to find that the applicant is entitled to receive payment of arrears of sole parent pension for the period 4 June 1992 to 19 November 1992.

...............[sgd Mr A Sweidan].............

Senior Member

CATCHWORDS

Social Security - sole parent pension - whether applicant sought a review of a decision to suspend and cancel her sole parent payment - whether contact with Centrelink constituted a request for a review.

LEGISLATION

Social Security Act 1991 (C'th)

Social Security (Administration) Act 1999 (C'th)

CASES

Re Eatt and Secretary, Department of Social Security (1992) 28 ALD 268

Frost and SDSS (1995) (AAT 10360; 17 August 1995; Breen DP)

Re Marsh and Secretary, Department of Social Security (1996) 42 ALD 639

Re Secretary, Department of Social Security and Mangano (1997) 2(11) SSR 156

Re Secretary, Department of Social Security and Trevisan (1990) 22 ALD 37

REASONS FOR DECISION

13 March 2008 Mr A Sweidan, Senior Member    

BACKGROUND

1.      The applicant seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) made on 31 May 2007.

2.      The SSAT affirmed a decision of a Centrelink Authorised Review Officer (ARO) made on 27 March 2007 to not pay arrears of sole parent pension to the applicant for the period payday 4 June 1992 to payday 19 November 1992.

FACTS

3.      It is appropriate to set out in full the ARO’s decision statement dated 27 March 2007 as this sets out the ARO’s findings of fact and reasons for the ARO’s decision as follows:

“I am reviewing the decision not to pay Sole Parent Pension to you for the period payday 4 June 1992 to payday 19 November 1992.

Why you disagree with the decision

You said you disagree with the decision because:

·     You consider you were entitled to Sole Parent pension from payday 5 June 1992 to payday 27 November 1992 and should be paid arrears of the Pension for that period.

Issues to be decided

·     Whether your Sole Parent Pension was correctly cancelled?; and

·     If not, does the Social Security Law allow Centrelink to pay arrears of Sole Parent Pension to you from payday 4 June 1992 to payday 19 November 1992 if you were qualified?

Evidence

The evidence in this case includes:

·     The Sole Parent Review form and attached letter dated 19 April 1992 you lodged with Centrelink on 23 April 1992;

·     Centrelink file record of a Review of Living Arrangement form sent to you on 1 May 1992;

·     Copies of pages of your passport;

·     Copies of letters sent to you by Centrelink dated 15 November 1991, 12 May 1992, 29 May 1992 and 12 June 1992;

·     A Note for File made by a Centrelink officer on 22 June 1992;

·     The Pension Claim form you lodged with Centrelink on 25 November 1992; and

·     File and computer records maintained by Centrelink from 1986.

Findings of fact

I have found that:

·     On 15 November 1991 Centrelink wrote to you requiring you to tell Centrelink within 14 days if you started living with someone as if you were married;

·     You were receiving Sole Parent Pension and living at 57 McLeod Road Applecross when on 28 November 1991 you left Australia and went to Germany to visit your parents;

·     On 22 March 1992 you returned to Australia and went to live at Fourth Avenue Burns Beach.  Mr Robert Wood, who is the father of your child Julia Wood born 3 August 1990, was also living at that address;

·     On 23 April 1992 you lodged a Sole Parent Review form with Centrelink.  You advised you were living at Fourth Avenue, Burns Beach, that Mr Wood also lived at this address, that his relationship to you was “friend and father of Julia”, and that you intended to return to Germany (having arrived back in Australia on a return ticket) in July 1992;

·     On 1 May 1992 Centrelink issued you with a Review of Living Arrangements form.  As at 1 May 1992 you had not been living with Mr Wood for 8 weeks;

·     You did not return the Review of Living Arrangements form to Centrelink;

·     On 12 May 1992 Centrelink wrote to you requiring you to tell Centrelink within 14 days if you started living with someone as if you were married;

·     On 29 May 1992 Centrelink wrote to you stating: We cannot pay you Sole Parent Pension for the time being. This is because we did not receive the review form about your living arrangements as requested. If you have sent the form, please telephone straight away so we can sort out what happened. If you have not returned the form but want to continue receiving Sole Parent Pension, please return the form straight away. If we decide you are still eligible we can pay you for this fortnight. If you do not return the form or contact this office within 14 days your pension will be cancelled. The authority for this notice is contained in section 296 of the Social Security Act 1991;

·     On 12 June 1992 Centrelink wrote to you stating: We cannot pay you Sole Parent Pension anymore. This is because we have not received the information requested about your living arrangements. If you still want to receive Sole Parent Pension you can re-apply for a pension. However, if pension is granted it can only start from when you re-apply. The authority for this decision is contained in section 297 of the Social Security Act 1991;

·     On 22 June 1992 you attended Centrelink and discussed the cancellation decision.  The Centrelink officer you talked to on that occasion advised that she/he agreed with the cancellation decision and that to start getting Sole Parent Pension again you would have to lodge a new claim for the Pension;

·     On 29 June 1992 you lodged an appeal against the cancellation of your Sole Parent Pension with the Social Security Appeals Tribunal (SSAT);

·     On 31 July 1992 you left Australia;

·     On 28 September 1992 you returned to Australia;

·     On 15 November 1992 the SSAT dismissed your appeal because they could not contact you;

·     On 25 November 1992 you lodged a claim for Sole Parent Pension with Centrelink, advising that you were living at No 3 Fourth Avenue Burns Beach and that you did not know Mr Wood’s current whereabouts;

·     During the period from payday 4 June 1992 to payday 19 November 1992 you and Mr Wood were not living together as members of a couple;

·     You were granted Sole Parent Pension from payday 3 December 1992;

·     On 21 February 1994 you contact Centrelink about the cancellation of your Pension in 1992.  On 12 April 1994 Centrelink wrote to you inviting further contact about this and enclosing an appeal form.  You did not contact Centrelink in response to this letter; and

·     On several occasions after 1994, you asked Centrelink to review the decision to cancel your Sole Parent Pension from payday 21 May 1992.

Reasons for decision

All of the decisions Centrelink makes must be in accordance with the law and policy guidelines. The law relevant to this case is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Admin Act.)

In May 1992 section 249 of the Act provided that a person was qualified for Sole Parent Pension if, among other things, the person was not a member of a couple, and section 4 of the Act set out the things Centrelink must consider when working out whether a person was a member of a couple.

Section 282 of the Act authorised Centrelink, in situations where a person was receiving Sole Parent Pension and ‘a particular residence has been, for a period of at least 8 weeks, the principal home of both the recipient and a person of the opposite sex’, providing at least one other condition such as ‘a child of both the people also lives in the residence’, to give a person a notice requiring the person to provide specified information about her relationship with the other person.

Sections 196 and 297 of the Act relevantly stated:

“If:

(a)       a person is receiving a sole parent pension; and

(b)the Secretary gives the recipient a notice under section 282; and

(c)the recipient fails to give the Secretary the information required by the notice within 14 days after the notice is given; the Secretary is to determine that the pension is to be suspended.

If the Secretary suspends a person’s sole parent pension under subsection (1), the Secretary must give the person a notice that states that the person’s pension will be cancelled if the information required by the notice under section 282 is not given to the Secretary within 14 days after the notice under this subsection is given.

If:

(a)a person’s sole parent pension is suspended under subsection 296(1); and

(b)the person fails to give the Secretary the information required by the notice under section 282 within the 14 days referred to in the notice under subsection 296(2);

The Secretary is to determine that the pension is to be cancelled.

Note:if a person seeks review of a cancellation decision under this section, a payment of the sole parent pension may be continued pending the outcome of the review.  If the application for review is made within 14 of notification of the decision, continued payment will be automatic (see section 1242 (Internal Review) and section 1252 (Review by Social Security Appeals Tribunal).  If the application is made after that time, continued payment is at the Secretary’s discretion (see section 1241 (Internal Review) and Section 1251 (review by Social Security Appeals Tribunal)).

In your case, taking into account the information Centrelink had at the time of the nature of your and Mr Wood’s relationship, the difficulties you were each dealing with in your personal lives, and your absence from Australia from 31 July 1992 to 28 September 1992, I concluded that during the period payday 4 June 1992 to payday 19 November 1992 you and Mr Wood did not live together as members of a couple under section 4 of the Act.  This means that during this period you were qualified for Sole Parent Pension for this period.

I note that Centrelink was authorised to issue a notice to a person under section 282 of the Act only if among other things, ‘a particular residence has been, for a period of at least 8 weeks, the principal home of both the recipient and a person of the opposite sex’.

At the time the section 282 notice was issued to you on 1 May 1992, the house at Burns Beach had not been your principal home for a period of 8 weeks.

In November 1991 you had been living in Applecross.  You spent from November 1991 to 21 March 1992 outside Australia.  You started living at Burns Beach after returning to Australia on 22 March 1992.

I decided that the Notice issued to you on 1 May 1992 was not issued correctly under section 292 of the Act and so it follows that the suspension and cancellation decisions that followed were incorrect.

I have set aside the decisions to suspend and cancel your Sole Parent Pension and substituted the decision that your Sole Parent pension should have continued to be paid.

I then looked at whether the Social Security law allows Centrelink to pay arrears of Sole Parent Pension to your for the period payday 4 June 1992 to payday 19 November 1992.

Your Centrelink file and computer records show that on 12 June 1992 you were notified in writing of the cancellation decision.

On 22 June 1992 you talked to a Centrelink officer about this decision and that officer advised that she/he considered the decision was correct.

Until 1 January 1993, there was no requirement in the Social Security Law for a decision to have been reviewed by an Authorised Review Officer before the SSAT gained jurisdiction to hear an appeal about that decision.

I sought advice from Centrelink’s Legal Services Branch about whether your contact with Centrelink on 22 June 1992 should be taken to be a request for review by an Authorised Review Officer, with that request for review remaining unactioned until now.  The response I received was that: ‘On the facts presented no application was made to the Secretary.  The customer did contact DSS about the decision and received written notification of the decision.  The customer had a number of options which included applying for a review to either or both the Secretary and the SSAT.  She chose, on the evidence to apply only to the SSAT.  Inferring by her conduct that she wished a review from both the Secretary and the SSAT does not take into consideration the context of the Act.  Applications have been inferred in the SSA Act due to the nature of the scheme of the legislation and the regime of review detailed therein.  The 1991 provisions in relation to review were amended in 1993 with effect from 1 January 1993 (36 of 1993) redirecting applications to the SSAT to the Secretary for review where no application had been made to the Secretary.

I do not consider that an application to review by the Secretary can be inferred in the circumstances of the case or by virtue of the legislation.’

I decided that your contact on 22 June 1992 was not a request for review by an Authorised Review Officer of the decision to cancel your Sole Parent Pension.

On 29 June 1992 you lodged an appeal with the SSAT about the cancellation of your Sole Parent Pension.

On 15 November 1992 the SSAT dismissed the appeal.  If you wish to appeal the SSAT decision, you may wish to the contact the SSAT and/or the Administrative Appeals Tribunal to discuss the procedure for this.

On 21 February 1994 and subsequent occasions you contacted Centrelink again and advised you did not agree with the decision to cancel your Sole Parent Pension in 1992.

I note if these requests are taken to be requests for review of the decision made on 12 June 1992 to cancel your Sole Parent Pension, and if that decision is set aside and the decision substituted that your Sole Parent Pension should continue, then under section 109 of the Admin Act the date of effect of the changed decision is limited to the date you requested the review.  This is because those contacts are all more than 13 weeks after you were notified of the decision to cancel your sole parent pension.

This means no arrears of Sole Parent Pension from payday 4 June 1992 to payday 19 November 1992 are payable as the result of review by an Authorised Review Officer occurring because of your contacts from 21 February 1994 onwards.

Decision

I have decided that:

·     During the period payday 4 June 1992 to payday 19 November 1992 you and Mr Robert Wood did not live together as members of a couple;

·     During the period 4 June 1992 to payday 19 November 1992 you were qualified for Sole Parent Pension;

·     The Notice issued to you on 1 May 1992 was not validly issued under section 292 of the Act and the decisions to suspend and cancel your Pension due to the non return of that Notice were also invalid;

·     On 12 June 1992 you were notified by Centrelink in writing of the (incorrect) decision to cancel your Pension;

·     On 21 February 1994 and later occasions you asked Centrelink to review the cancellation decisions;

·     I have set aside the decision to cancel your Sole Parent Pension and substituted the decision that your Pension should continue, but as your request for review was not made within 13 weeks of you being given notice of the cancellation decision, the date of effect of the changed decision is limited to being the date the review request was made.  By 21 February 1994 you were already being paid Sole Parent Pension and so there are no arrears of Sole Parent Pension payable to you for the period payday 4 June 1992 to payday 19 November 1992.”

ISSUES

4.      The issue for the Tribunal is whether the applicant can be considered to have requested a review of the original decision within 13 weeks of the original cancellation decision.

SSAT REASONS FOR DECISION

5.      It is further convenient to set out in full the SSAT’s reasons for decision including the history and the evidence given by the applicant and her representative at the Tribunal as well as the discussion of that evidence and the SSAT’s findings of fact and comments on the application of the law as follows:

“Ms Tucker was receiving sole parent pension when on 12 June 1992 an officer of the Department of Social Security (DSS) sent her a notice informing her the pension had been cancelled.

On 29 June 1992 Ms Tucker lodged an appeal against the cancellation decision with the SSAT.

The SSAT dismissed the appeal on 15 November 1992.

On 27 March 2007 a Centrelink authorised review officer reviewed and affirmed the decision. The main points of the authorised review officer’s decision were:

·          The decision to cancel the sole parent pension was incorrect.

·          Ms Tucker’s contact with DSS on 22 June 1992 was not a request for review by an authorised review officer.

·           If any of Ms Tucker’ contacts with DSS/Centrelink from 21 February 1994 and subsequently could be considered to be requests for authorised review officer, arrears are not payable as the review request was not received with 13 weeks of the original decision being notified.

Ms Tucker appealed the decision to this Tribunal on 4 April 2007.

ISSUES

The issue to be considered in this case is whether Ms Tucker can be paid arrears of sole parent pension for the period payday 4 June 1992 to payday 19 November 2002.

INFORMATION PROVIDED AT THE HEARING

Ms Belcher told the Tribunal:

·          She had provided significant background details regarding Ms Tucker’s case in her written submission to the Tribunal.

·          The main point of contention was whether Ms Tucker can be considered to have requested a review of the decision by an authorised review officer within 13 weeks of the original cancellation decision.

·           In 1992 Ms Tucker did not understand the difference between review by an authorised review officer and the SSAT.

·          She had previously had an overpayment decision set aside by an authorised review officer and thought that she was following the same process when she queried the cancellation decision on 22 June 1992.

·          There is no paperwork relating to the lodgement of the appeal by Ms Tucker to the SSAT.

·          When the SSAT contacted Ms Tucker whilst she was in Germany to see if she wished to proceed with the appeal Ms Tucker was upset and confused; she did not understand what the word appeal meant. To her to be appealing means to be attractive.

·          Ms Tucker did not contact DSS about her sole parent pension whilst she was in Germany as she was under the impression that the decision would be looked at by DSS and her sole parent pension would be re-instated. She did not think she needed to do anything else.

·          She has contacted DSS/Centrelink many times since seeking arrears but has not been successful.

Ms Tucker told the Tribunal that she did not understand what the word
appeal meant and she cannot recall lodging the appeal with the SSAT. She
said she thought that DSS would review and reinstate her pension without
requiring any further input from her. For this reason she was upset when the
SSAT contacted her in Germany and she told them she did not want anything

to do with an appeal.

DOCUMENTS

The Tribunal had access to Ms Tucker’s Centrelink file and electronic record.

Ms Belcher provided a written submission to the Tribunal, a copy of which

has been placed on the Centrelink file.

DISCUSSION OF THE EVIDENCE

The authorised review officer has decided that the original decision to cancel sole parent pension was incorrect – this issue will be discussed further under Application of Law.

The main point of contention in this case is whether Ms Tucker asked for a

review by an authorised review officer within 13 weeks of being notified of the
original decision. If she did not do so there is a limitation on payment of any
arrears.

The notice of cancellation sent to Ms Tucker on 12 June 1992 advises Ms Tucker that she can ask for an authorised review officer review if she disagrees with the decision, and if she still disagrees she can then appeal. The letter also advises that “You can also appeal directly to the Social Security Appeals Tribunal who will independently review your case.”

It is clear that Ms Tucker attended DSS on 22 June 1992 seeking an
explanation of why her payments were cancelled. She was advised by the
DSS officer that “she must now reapply for the sole parent’s pension”. There
is no mention of either a review or an appeal request in the statement taken
by the officer. It is clear that at this time Ms Tucker had received the letter
advising of the cancellation of her pension and of her review and appeal

rights.

Ms Tucker lodged an appeal to the SSAT on 29 June 1992. She could
not recall for the Tribunal how she lodged the appeal, that is, whether it was
verbally or in writing, or whether it was lodged direct with the SSAT or via
DSS. Ms Tucker claims that she assumed that she was requesting an internal
review as she had previously done (successfully) in 1991. The Tribunal notes
that this evidence is not supported by a statement she made to DSS on 21

February 1994 in which she states: “I then applied to the Tribunal to have the
decision reversed, independently reviewed, and the response was that I had
no reasons to go to the Tribunal. Please have a look into my file and review

my pension”.

The Tribunal decided that the evidence during the period 1992 to 1994
indicates that Ms Tucker was aware of her options to ask for an internal
review or to appeal directly to the SSAT and that she chose to appeal directly
to the SSAT. The Tribunal could not conclude that her contact with DSS on 22
June 1992 constituted a request for a review by an authorised review officer.
The first request for review by an authorised review officer appears to have

been on 21 February 1994.

On 13 November 1992 the SSAT dismissed Ms Tucker’s appeal on the
basis that it was satisfied that Ms Tucker did not intend to proceed with the
application for review. Ms Tucker told the Tribunal that the SSAT had
contacted her whilst she was in Germany about her appeal and this upset her
and she told them she did not want anything to do with an appeal. The
SSAT’s decision to dismiss the application would appear to have been
appropriate in the circumstances. However that decision is not before this
Tribunal.

FINDINGS OF FACT

The Tribunal made the following findings of fact:

(a)     Ms Tucker was receiving sole parent pension when on 12 June 1992.

(b)     she was given written notice of a decision to cancel the pension. The notice contained her rights.

(c)Ms Tucker appealed the decision to the SSAT on 29 June 1992.

(d)     The SSAT dismissed the appeal on 13 November 1992.

(e)     Ms Tucker asked for a review of the decision by an authorised review officer on 21 February 1994.

APPLICATION OF THE LAW

The legislation relevant to this decision is contained in the Social Security
Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the

Administration Act).

The qualifications for sole parent pension were, at the time the original
decision was made, set out in section 249 of the Act. Section 282 of the Act
provided that DSS could require a person who was receiving sole parent
pension to provide information about a person of the opposite sex if the
recipient and the other person were residing at the same place of residence
for at least eight weeks, and other conditions applied. DSS sent Ms Tucker a
notice under sections 296 and 297 of the Act which required her to give
specified information regarding Mr Robert Wood, who was the father of Ms
Tucker’s child, Julia. The notice advised that failure to comply with the request
within 14 days would result in suspension, and, after a further 14 days,

cancellation.

The authorised review officer has stated that Ms Tucker had been living at
the relevant place of residence for less than eight weeks and therefore section
282 did not apply to her. The notices sent under sections 296 and 297 were therefore not valid notices and the cancellation determination was also incorrect. The Tribunal agrees with this finding.

At the time the cancellation determination was made the Act provided:

1240. (1) A person affected by:

(a)       a decision of an officer under this Act other than a rate of return decision in relation to an investment product; or…may apply to the Secretary for review of the decision.

(3)        A person may apply under subsection (1) for review of a decision, and, subject to subsection (3A), the Secretary or an authorised review officer may review the decision, even if an application has been made to the Social
Security Appeals Tribunal or the Administrative Appeals Tribunal for review of

the decision.

The Tribunal decided that Ms Tucker did not initially apply to the Secretary (DSS) for a review of the decision. Instead she chose on 29 June 1992 to apply directly to the SSAT for a review of the decision in accordance with the Act provisions set out below:

1245 (1). Unless otherwise stated, the provisions of this Part apply to all

decisions of an officer under this Act including:

(a) a rate of return decision; and

(b) a decision under section 606 to the extent that it relates to the terms of a Newstart Activity Agreement that is in force.

1247. (1) Subject to section 1250, a person whose interests are affected by:

(a) a decision of an officer under this Act; or

(b)a decision under section 5A, 5B, 5C, 5D or 5E of the Health Insurance Act 1973; or

(c)a rate of return decision in relation to an investment product; may apply to the Social Security Appeals Tribunal for review of the decision

.

Ms Tucker’s appeal to the SSAT was subsequently dismissed.

The Tribunal has found that Ms Tucker applied to DSS for a review of the
decision on 21 February 1994; this was more than 3 months after she was
notified of the original decision on 12 June 1992. The review was completed
by an authorised review officer 27 March 2007.

In 1994 the following provisions in the Act applied to the date of effect of
favourable decisions made following a review, in the circumstance where the
request for review was made more than 3 months after the applicant was
notified of the decision (this provision was subsequently replaced by
subsection 109(2) of the Administration Act which stipulated 13 weeks rather
than 3 months):

299. (3) If:

(a) a decision (in this subsection called the "previous decision") is made in relation to a sole parent pension; and

(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and

(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and

(d) the favourable determination is made as a result of the application for review; and

(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.

In effect this means that no arrears are payable to Ms Tucker for the period payday 4 June 1992 to payday 19 November 2002.

The Tribunal affirmed the decision under review.”

RESPONDENT’S CONTENTIONS

6.The respondent’s contentions may be summarised as follows:

7.      The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act), as it was at the material time.

8.      Section 249 of the Act sets out the qualification provisions for SPP and subsection 249(1)(a)(1) relevantly provides that a person may only qualify if they are not a member of a couple.

9.      Subsection 4(2) of the Act sets out the general definition of a member of a couple, and subsection 4(2)(b) relevantly provides that subsection 4(3) is to be applied in forming an opinion as to whether two people who are not legally married are nevertheless members of a couple.

10.     Subsection 4(3) of the Act provides that, in forming such an opinion, all of the circumstances of the relationship are to be considered, and sets out specific circumstances that are to be considered.

11.     Subsection 4(4) of the Act relevantly provides that, where a person who is in receipt of SPP has lived for a period of at least 8 weeks in their principal residence with their former partner and a child of whom they and their former partner are parents, that person must be considered to be in a marriage-like relationship with their partner, unless, having addressed all of the circumstances set out in subsection 4(3), the weight of evidence allows a determination that they are not in a marriage-like relationship. 

12.     The Secretary contends that Social Security issued a ROLA form to Ms Tucker on 1 May 1992 by mail.

13.     Subsection 282(1) of the Act relevantly provides that a sole parent pension recipient who is not legally married to a person of the opposite sex may, where they have shared their principal residence with that person for at least eight weeks, be given a notice requiring that they provide specified information about their relationship and any other information that may be relevant in determining whether they are members of a couple.

14.     The Secretary accepts that Ms Tucker had advised Social Security on 19 April 1992 that she commenced living at the Fourth Avenue address, where Mr Wood also lived, on 22 March 1992.

15.     The Secretary accepts that the period from 22 March 1992 to 1 May 1992 is a period of less than 8 weeks.

16.     The Secretary contends that this is a period of 5 weeks and 6 days.

17.     The Secretary notes that, under subsection 282(4), there is no requirement that a notice issued under subsection 282(1) specify the date by which the information required must be provided, only that it state that SPP will be suspended if the information is not provided within 14 days after the notice is given. 

18.     Subsection 296(1) of the Act relevantly provides that, if a recipient of SPP fails to provide information required of them by a notice issued under section 282 of the Act, the payment of SPP is to be suspended.

19. The Secretary contends that Social Security gave Ms Tucker a notice on 29 May 1992 informing her that her SPP had been suspended under section 296 of the Act]. This notice also informed Ms Tucker that her SPP would be cancelled if she did not return the ROLA form within 14 days.

20. Section 297 of the Act relevantly provides that, if a recipient of SPP who has been suspended under subsection 296(1) of the Act fails to provide the information that has been required of them within 14 days of being given a notice under subsection 296(1) of the Act, the payment of SPP is to be cancelled.

21. The Secretary contends that Social Security gave Ms Tucker a notice on 12 June 1992 informing her that her SPP had been cancelled under section 297 of the Act.

22.     The Secretary accepts that, as on 1 May 1992 Ms Tucker had not resided at the Fourth Avenue address for a period of at least 8 weeks, the notice issued on 1 May 1992 was not a valid notice under section 282 of the Act.  

23.     The Secretary contends that, notwithstanding this, Social Security exercised a legislative power in cancelling Ms Tucker’s SPP. 

24.     The Secretary contends that a departmental officer verbally confirmed to Ms Tucker on 22 June 1992 that her SPP had been cancelled for failing to return the ROLA form, and that, if she wished to be paid SPP, she would need to reclaim SPP.

25.     The Secretary contends that the file note of 22 June 1992 does not indicate that Ms Tucker requested a review on that date of the decision to cancel her SPP.

26.     The Secretary accepts the finding of the SSAT, based on the evidence provided to it by Ms Tucker on 31 May 2007, that she applied to the SSAT on 29 June 1992 for a review of the decision to cancel her SPP.

27.     The Secretary contends that a review of the decision to cancel her SPP would only have been referred to the SSAT if Ms Tucker had applied to have the decision so referred.

28.     The Secretary contends that Ms Tucker, by virtue of previously having a decision reviewed by an ARO, was aware that she could choose to have the decision of 12 June 1992 reviewed by an ARO.

29.     The Secretary contends that, by the notices given to her on 29 May 1992 and 12 June 1992, Ms Tucker was aware that she was able to request a review of the decision by an ARO, or appeal the decision directly to the SSAT.

30.     The Secretary contends that Ms Tucker, given this knowledge, made a conscious determination that she should appeal the decision directly to the SSAT, and that she did, in fact, do so on 29 June 1992.

31.     The Secretary notes that, where a person applies for a review of decision by an ARO and also applies for a review of decision to the SSAT, subsection 1240(3) of the Act confers on an ARO the power to nevertheless review the decision, pending the SSAT application being determined, but no obligation to do so.

32.     Subsection 1275(1) of the Act relevantly provides that, where satisfied that a person does not intend to proceed with an application to the SSAT, the SSAT may dismiss the application, and subsection 1275(2) provides that an application so dismissed is taken to have been withdrawn on the date that it is dismissed.

33.     The Secretary contends that the SSAT lawfully made a determination to dismiss Ms Tucker’s application on 13 November 1992 under subsection 1275(1) of the Act, and that her application was effectively withdrawn this same date.

34.     Subsection 1281(2) of the Act relevantly provides that a person who is dissatisfied with a decision of the SSAT may apply to the Administrative Appeals Tribunal for a review of the decision.

35.     The Secretary contends that Ms Tucker rested on her rights in respect of this decision and, by extension, the decision of 12 June 1992 to cancel her SPP.

36.     On 25 November 1992 Ms Tucker lodged a claim form for SPP.

37.     On 25 November 1992 Ms Tucker signed a statement in support of her claim for SPP in which she advised, in part, that: “My Pension was cancelled in May and I have been living off my savings since then”.

38.     On 15 December 1992 Ms Tucker lodged an ANZ bank book and an ANZ Property Securities Trust certificate in support of her claim for SPP. These two documents showed combined financial investments of $47,927.92.

39.     The Secretary contends that Ms Tucker was financially self-sufficient at this time, and that this may explain why she chose to rest on her rights in respect of the decision of 12 June 1992 to cancel her SPP and the decision of 13 November 1992 to dismiss her application to the SSAT.

40.     The Secretary notes that Ms Tucker stated on 21 June 1991, when requesting a review of the decision to raise a debt in respect of the period 1 March 1990 to 16 August 1990, that: “I would like the overpayment to be reviewed, as I don’t feel that I was living in a marriage-like relationship”.

41.     The Secretary contends that this statement establishes that Ms Tucker had been aware in 1992 of her review rights, including the right to have a decision internally reviewed by an ARO.

42.     The Secretary contends that Ms Tucker’s statement to Centrelink of 21 February 1994 in which, in part, she affirms that in 1992 she had “applied to the Tribunal to have the decision reversed, independently reviewed, and the response was that I had not reasons to go to the Tribunal”, establishes that she had applied in 1992 for the decision to cancel her SPP to be reviewed by the SSAT.

43.     The Secretary contends that this statement further establishes that Ms Tucker had been aware in 1992 of her review rights, and had applied to the SSAT so that the decision could be reviewed “independently” of Social Security.

44.     Subsection 1240(1) of the Act relevantly provides that “[a] person affected by: a decision of an officer under this Act . . . may apply to the Secretary for a review of the decision.”

45.     The Secretary had regard to the AAT decision in Nisha and Secretary, Department of Family and Community Services (2003) AATA 378 where, in finding that a decision of the AAT could not then be reviewed by an ARO, the Tribunal commnted, at paragraph 27:

“The usual consequence of an application would then have been that the Secretary must review the application and either affirm the decision, vary it or set it aside and substitute a new decision (section 135 of the Act). However, a section 135 review requires that a person applying for review under section 129 of the Act, be a person affected by a decision of an “officer” under the social security law. Certainly Ms Nisha can be said to have been affected by a decision under the social security law (if indeed it was a decision). However in her case, the purported decisions of the Respondent and the reviewable decisions were nullities, and the only decision to review, was that of Ms Bullock of the AAT. I have noted the references in the Act to an “officer” as distinct from reference to the SSAT and the AAT, and I do not believe that the AAT can be characterised as an “officer” pursuant to section 129 of the Act.”

46.     The Secretary contends that, even if it were accepted that Ms Tucker retained the right to have the decision of the SSAT to dismiss her application reviewed by an ARO, this right could only become effective from the date that she requested such a review.

47.     In the alternative, the Secretary contends that, even if it were accepted that Ms Tucker retained the right to have the original decision of 12 June 1992 to cancel her SPP reviewed, this right could only become effective from the date on which she requested such a review.

48.     The Secretary accepts that Ms Tucker’s statement of 21 February 1994 was by way of a request for a review, but, contends that this request was effective only from 21 February 1994.

49.     Subsection 299(3) of the Act relevantly provides that, where a notice of a decision relating to SPP is given, and the person to whom the notice is given applies for a review of the decision more than 3 months after the notice is given, and as a result of that application receives a favourable determination, any arrears resulting from that determination are only payable from the date of the application for review.

50.     The Secretary contends that, even if a favourable determination had been or is made in relation to Ms Tucker’s application for review of 21 February 1994, any arrears would only be payable from 21 February 1994. In effect, therefore, no arrears would be payable.

51.     By its letter of 12 April 1994, Social Security advised Ms Tucker of her further rights of review.

52.     The Secretary contends that there is no evidence that Ms Tucker acted to enforce these rights.

53.     The Secretary contends that, again, Ms Tucker chose to rest on her rights.

54.     The Secretary contends that it was unclear from Ms Tucker’s contacts with Centrelink from 2003 to 2006 which decision Ms Tucker was at that time requesting be reviewed.

55.     The Secretary contends that, if the decision of 12 June 1992 to cancel her SPP was incorrect, Ms Tucker had the opportunity at that time to have the decision corrected by pursuing her review rights.

56.     The Secretary contends that, having initially exercised these rights by applying to the SSAT, Ms Tucker chose to rest on these rights.

57.     The Secretary contends that it is not open to Ms Tucker to attempt to now re-enliven these rights, as they existed on 29 June 1992, when she applied to the SSAT.

58.     The Secretary contends that the time elapsed since the original decision was made on 12 June 1992 is prejudicial to the finding of fact in relation to events contemporaneous to that decision.

59.     The Secretary considered the AAT decisions relied upon by Ms Tucker, as set out in her Supplementary Documents: Eatt and SDSS, Frost and SDSS, SDSS and Mangano, SDSS and Marsh and SDSS and Trevisan.

60.     The Secretary contends that the primary issue in each of these decisions was whether particular contacts constituted valid requests for review.

61.     The Secretary contends that each of these decisions is distinguished from the present matter because, even if it were accepted that Ms Tucker’s contact of 22 June 1992 was by way of request for a review by an ARO, it is clear that this purported request was superseded by Ms Tucker’s application for review to the SSAT. 

62.     The Secretary contends that, for the reasons here outlined, arrears of SPP are not payable to Ms Tucker in respect of the period 4 June 1992 to 19 November 1992.

63.     The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act), as it was at the material time.

64.     Section 249 of the Act sets out the qualification provisions for SPP and subsection 249(1)(a)(1) relevantly provides that a person may only qualify if they are not a member of a couple.

65.     Subsection 4(2) of the Act sets out the general definition of a member of a couple, and subsection 4(2)(b) relevantly provides that subsection 4(3) is to be applied in forming an opinion as to whether two people who are not legally married are nevertheless members of a couple.

66.     Subsection 4(3) of the Act provides that, in forming such an opinion, all of the circumstances of the relationship are to be considered, and sets out specific circumstances that are to be considered.

67.     Subsection 4(4) of the Act relevantly provides that, where a person who is in receipt of SPP has lived for a period of at least 8 weeks in their principal residence with their former partner and a child of whom they and their former partner are parents, that person must be considered to be in a marriage-like relationship with their partner, unless, having addressed all of the circumstances set out in subsection 4(3), the weight of evidence allows a determination that they are not in a marriage-like relationship. 

68.     The Secretary contends that Social Security issued a ROLA form to Ms Tucker on 1 May 1992 by mail.

69.     Subsection 282(1) of the Act relevantly provides that a sole parent pension recipient who is not legally married to a person of the opposite sex may, where they have shared their principal residence with that person for at least eight weeks, be given a notice requiring that they provide specified information about their relationship and any other information that may be relevant in determining whether they are members of a couple.

70.     The Secretary accepts that Ms Tucker had advised Social Security on 19 April 1992 that she commenced living at the Fourth Avenue address, where Mr Wood also lived, on 22 March 1992.

71.     The Secretary accepts that the period from 22 March 1992 to 1 May 1992 is a period of less than 8 weeks.

72.     The Secretary contends that this is a period of 5 weeks and 6 days.

73.     The Secretary notes that, under subsection 282(4), there is no requirement that a notice issued under subsection 282(1) specify the date by which the information required must be provided, only that it state that SPP will be suspended if the information is not provided within 14 days after the notice is given. 

74.     Subsection 296(1) of the Act relevantly provides that, if a recipient of SPP fails to provide information required of them by a notice issued under section 282 of the Act, the payment of SPP is to be suspended.

75. The Secretary contends that Social Security gave Ms Tucker a notice on 29 May 1992 informing her that her SPP had been suspended under section 296 of the Act. This notice also informed Ms Tucker that her SPP would be cancelled if she did not return the ROLA form within 14 days.

76. Section 297 of the Act relevantly provides that, if a recipient of SPP who has been suspended under subsection 296(1) of the Act fails to provide the information that has been required of them within 14 days of being given a notice under subsection 296(1) of the Act, the payment of SPP is to be cancelled.

77. The Secretary contends that Social Security gave Ms Tucker a notice on 12 June 1992 informing her that her SPP had been cancelled under section 297 of the Act.

78.     The Secretary accepts that, as on 1 May 1992 Ms Tucker had not resided at the Fourth Avenue address for a period of at least 8 weeks, the notice issued on 1 May 1992 was not a valid notice under section 282 of the Act.  

79.     The Secretary contends that, notwithstanding this, Social Security exercised a legislative power in cancelling Ms Tucker’s SPP. 

80.     The Secretary contends that a departmental officer verbally confirmed to Ms Tucker on 22 June 1992 that her SPP had been cancelled for failing to return the ROLA form, and that, if she wished to be paid SPP, she would need to reclaim SPP.

81.     The Secretary contends that the file note of 22 June 1992 does not indicate that Ms Tucker requested a review on that date of the decision to cancel her SPP.

82.     The Secretary accepts the finding of the SSAT, based on the evidence provided to it by Ms Tucker on 31 May 2007, that she applied to the SSAT on 29 June 1992 for a review of the decision to cancel her SPP .

83.     The Secretary contends that a review of the decision to cancel her SPP would only have been referred to the SSAT if Ms Tucker had applied to have the decision so referred.

84.     The Secretary contends that Ms Tucker, by virtue of previously having a decision reviewed by an ARO, was aware that she could choose to have the decision of 12 June 1992 reviewed by an ARO.

85.     The Secretary contends that, by the notices given to her on 29 May 1992 and 12 June 1992, Ms Tucker was aware that she was able to request a review of the decision by an ARO, or appeal the decision directly to the SSAT.

86.     The Secretary contends that Ms Tucker, given this knowledge, made a conscious determination that she should appeal the decision directly to the SSAT, and that she did, in fact, do so on 29 June 1992.

87.     The Secretary notes that, where a person applies for a review of decision by an ARO and also applies for a review of decision to the SSAT, subsection 1240(3) of the Act confers on an ARO the power to nevertheless review the decision, pending the SSAT application being determined, but no obligation to do so.

88.     Subsection 1275(1) of the Act relevantly provides that, where satisfied that a person does not intend to proceed with an application to the SSAT, the SSAT may dismiss the application, and subsection 1275(2) provides that an application so dismissed is taken to have been withdrawn on the date that it is dismissed.

89.     The Secretary contends that the SSAT lawfully made a determination to dismiss Ms Tucker’s application on 13 November 1992 under subsection 1275(1) of the Act, and that her application was effectively withdrawn this same date.

90.     Subsection 1281(2) of the Act relevantly provides that a person who is dissatisfied with a decision of the SSAT may apply to the Administrative Appeals Tribunal for a review of the decision.

91.     The Secretary contends that Ms Tucker rested on her rights in respect of this decision and, by extension, the decision of 12 June 1992 to cancel her SPP.

92.     On 25 November 1992 Ms Tucker lodged a claim form for SPP.

93.     On 25 November 1992 Ms Tucker signed a statement in support of her claim for SPP in which she advised, in part, that: “My Pension was cancelled in May and I have been living off my savings since then”.

94.     The Secretary notes that Ms Tucker stated on 21 June 1991, when requesting a review of the decision to raise a debt in respect of the period 1 March 1990 to 16 August 1990, that: “I would like the overpayment to be reviewed, as I don’t feel that I was living in a marriage-like relationship”

95.     The Secretary contends that this statement establishes that Ms Tucker had been aware in 1992 of her review rights, including the right to have a decision internally reviewed by an ARO.

96.     The Secretary contends that Ms Tucker’s statement to Centrelink of 21 February 1994 in which, in part, she affirms that in 1992 she had “applied to the Tribunal to have the decision reversed, independently reviewed, and the response was that I had not reasons to go to the Tribunal”, establishes that she had applied in 1992 for the decision to cancel her SPP to be reviewed by the SSAT.

97.     The Secretary contends that this statement further establishes that Ms Tucker had been aware in 1992 of her review rights, and had applied to the SSAT so that the decision could be reviewed “independently” of Social Security. 

98.     Subsection 1240(1) of the Act relevantly provides that “[a] person affected by: a decision of an officer under this Act . . . may apply to the Secretary for a review of the decision.”

99.     The Secretary had regard to the AAT decision in Nisha and Secretary, Department of Family and Community Services (2003) AATA 378 where, in finding that a decision of the AAT could not then be reviewed by an ARO, the Tribunal commented, at paragraph 27:

“The usual consequence of an application would then have been that the Secretary must review the application and either affirm the decision, vary it or set it aside and substitute a new decision (section 135 of the Act). However, a section 135 review        requires that a person applying for review under section 129 of the Act, be a person affected by a decision of an “officer” under the social security law. Certainly Ms Nisha can be said to have been affected by a decision under the social security law (if indeed it was a decision). However in her case, the purported decisions of the Respondent and the reviewable decisions were nullities, and the only decision to review, was that of Ms Bullock of the AAT. I have noted the references in the Act to an “officer” as distinct from reference to the SSAT and the AAT, and I do not believe that the AAT can be characterised as an “officer” pursuant to section 129 of the Act.”

100.   The Secretary contends that, even if it were accepted that Ms Tucker retained the right to have the decision of the SSAT to dismiss her application reviewed by an ARO, this right could only become effective from the date that she requested such a review.

101.   In the alternative, the Secretary contends that, even if it were accepted that Ms Tucker retained the right to have the original decision of 12 June 1992 to cancel her SPP reviewed, this right could only become effective from the date on which she requested such a review.

102.   Subsection 299(3) of the Act relevantly provides that, where a notice of a decision relating to SPP is given, and the person to whom the notice is given applies for a review of the decision more than 3 months after the notice is given, and as a result of that application receives a favourable determination, any arrears resulting from that determination are only payable from the date of the application for review.

103.   The Secretary contends that, even if a favourable determination had been or is made in relation to Ms Tucker’s application for review of 21 February 1994, any arrears would only be payable from 21 February 1994. In effect, therefore, no arrears would be payable.

104.   By its letter of 12 April 1994, Social Security advised Ms Tucker of her further rights of review.

105.   The Secretary contends that there is no evidence that Ms Tucker acted to enforce these rights.

106.   The Secretary contends that, again, Ms Tucker chose to rest on her rights.

107.   The Secretary contends that it was unclear from Ms Tucker’s contacts with Centrelink from 2003 to 2006 which decision Ms Tucker was at that time requesting be reviewed.

108.   The Secretary contends that, if the decision of 12 June 1992 to cancel her SPP was incorrect, Ms Tucker had the opportunity at that time to have the decision corrected by pursuing her review rights.

109.   The Secretary contends that, having initially exercised these rights by applying to the SSAT, Ms Tucker chose to rest on these rights.

110.   The Secretary contends that it is not open to Ms Tucker to attempt to now re-enliven these rights, as they existed on 29 June 1992, when she applied to the SSAT.

111.   The Secretary contends that the time elapsed since the original decision was made on 12 June 1992 is prejudicial to the finding of fact in relation to events contemporaneous to that decision.

112.   The Secretary contends that, for the reasons here outlined, arrears of SPP are not payable to Ms Tucker in respect of the period 4 June 1992 to 19 November 1992.

TRIBUNAL’S FINDINGS

113.The Tribunal makes the following findings:

114.   The decision to cancel the applicant’s SPP was made on 12 June 1992 and the applicant went to DSS to query why she had not received her SPP on 22 June 1992.  The applicant states she told DSS she did not agree with the decision to cancel her SPP.

115.   The applicant assumed that this process would be similar to when  she queried whether the overpayment that DSS had raised against her in 1991 for allegedly living in a marriage-like relationship with Mr Wood was correct.  This overpayment was reviewed by the ARO who sent it back to the original decision maker for further investigation and on 8 July 1991 DSS found that there was no overpayment.

116.        The applicant has stated that she was totally reliant on the DSS worker to implement her request to obtain her rights to the review and appeal process and done what they told her to do.

117.        The applicant also states that she would have interpreted the information on the letters she received on 12 May 1992 and on 12 June 1992 in the “Your Rights” section:

“If you think the Social Security decision is wrong you can come to the Office and talk about it.  We can check that all the facts have been considered and tell you why a decision was made.

If you still disagree, you can talk to an Authorised Review Officer who can:

Take a fresh look at the case;

Change the decision if it is wrong;

Tell you how to appeal if you still disagree; and

Tell you about your rights to see your file.

You can also appeal directly to the Social Security Appeals Tribunal who will independently review your case.  If you do not apply for a review of the decision or appeal within three months of the date of this letter, you can only receive any arrears from the date you ask for a review or appeal

More details are available at any of our offices”

As meaning:

Firstly that you talked to someone at DSS which she did on 22/6/92;

Then as it was evident to her that this man was not going to listen to her or give her a ROLA she asked for a “Review/Appeal” she is uncertain what words she used but believed that it would be sent to the Authorised Review Officer as had previously happened in 1991.

If the ARO did not change the decision to not pay her SPP she would then go to the SSAT”.

118.   The applicant’s belief that she had asked for a review is supported by Mr Kees de Hoog,  Delegate Legal Services Branch, Centrelink in the notes from Customer Compensation – Submission to Delegate dated 10/4/06 which states:

“As The Applicant’s pension was cancelled on 12 June 1992, a letter was sent on the same day and it can be considered that she requested a review on 22 June 1992, the payment pending review should have been automatic.  This was an error.”

119.   Mr de Hoog also in his letter to re Brigitte Tucker’s Claim for Compensation dated 14/6/2006 again states:

“As the Applicant’s pension was cancelled on 12 June 1992, a letter was sent the same day, and it can be considered that she requested a review on 22 June 1992, the payment pending review should have been automatic.  An error was made.”

120.   The Administrative Appeals Tribunal took a very broad view of what was a request for a review in Re Secretary, Department of Social Security and Trevisan, (1990) 22 ALD 537 and Re Eatt and Secretary Department of Social Security (1992) 28 ALD 268 and this was further broadened in Re Frost and Secretary, Department of Social Security (1995) AAT 10360, 17 August 1995, where D P Breen at paragraph 10 concluded, amongst other things, that a submission before the Tribunal which contended that an applicant who did not use the word “review” should forfeit her entitlements:

“…is high-handed nonsense which totally ignores the scheme of the legislation.  It reflects a Departmental attitude that is totally at odds with the attitude shown for many years now by the Department of Veterans’ Affairs.  That Department treats, properly so in the view of the Administrative Appeals Tribunal, the most informal query as a request for review – that is, it does so if that is necessary in the particular circumstances of a case.”

121.    Since Re Frost and Secretary, Department of Social Security (1995) AAT 10260 the definition of review that the Administrative Appeals Tribunal has been prepared to apply has broadened considerably as in Re Marsh and Secretary, Department of Social Security (1996) 42 ALD 639, in Re Secretary, Department of Social Security and Mangano (1997) 2(11) SSR 156, it found that an inquiry about a pension claim should be treated as a request for review and concluded that an application for review is made when a client is making enquiries about, in particular, the rate of payment.  Nothing in the authorities limits this principle to new claims or even to cases where there might be a Departmental error.

122.    There are many cases about what is a request for a review but there does not appear to be a specific case around what the distinction is between a request for an ARO review or a request for an SSAT appeal.  It is to be noted that from 1 July 1991 until 31 December 1992, section 1247 (1) referred to review of “a decision of an officer” and paragraph (a) of section 1255(4) included after the word “decision” and before the words under this Act” the following: “(including a decision of the Secretary or an Authorised Review Officer made under section 1243)”.  Before 1 January 1993 application could be made to the SSAT without any prior review by the Secretary or an Authorised Review Officer.

123.   The fact that the legislation was changed could be seen as an indication that a person should have the benefit of an extra level of review and as such it could be interpreted that the DSS officer who sent the applicant directly to the SSAT when she queried the cancellation, could be seen as denying her right to natural justice.

124.   Therefore if this matter is considered under all the relevant authorities and the fact that the Social Security legislation is meant to be a beneficial legislation then as such the most generous interpretation of what constitutes a request for a review should be applied.

125.   The Tribunal accordingly finds that the contact made by the applicant with Centrelink on 22 June 1992 did constitute a request for a review.  The Tribunal rejects the respondent’s contention that this request was superseded by the applicant’s subsequent application for review to the SSAT.

DECISION

126.   The Tribunal accordingly sets aside the decision under review and remits the matter to the decision maker with a direction to find that arrears of sole parent pension is payable to the applicant in respect of the period 4 June 1992 to 19 November 1992.

I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         .................[sgd Mr J Lim]..........................

Associate

Date of Hearing  10 December 2007
Date of Decision  13 March 2008
Counsel for the Applicant         Chris Belcher
Solicitor for the Applicant          Welfare Rights & Advocacy Service
Counsel for the Respondent     Richard Wright

Solicitor for the Respondent     Centrelink Legal Services Branch