VINE Applicant And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 135
•24 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2528
GENERAL ADMINISTRATIVE DIVISION ) Re JULIE ANNE VINE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date24 February 2010
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
...................[signed]...............
Senior Member
SOCIAL SECURITY – disability support pension – termination payment – income maintenance period – whether payment in lieu of notice should be disregarded – whether application to SSAT lodged within 13 weeks of decision – economic security strategy payment – whether eligible
Administrative Appeals Tribunal Act 1975 s 43(6)
Social Security Act 1991 ss 23(1), (2) and (4), 900(1) and (2)
Social Security (Administration) Act 1999 ss 152(3) and (4), 154(1), (2), (3) and (4)
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Frost and Secretary, Department of Social Security [1995] AATA 228
Re Kelly and Secretary, Department of Social Security [1995] AATA 302
Re Marsh and Secretary, Department of Social Security [1996] AATA 669
Re Paino and Secretary, Department of Employment and Workplace Relations [2006] AATA 951
Re Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635
REASONS FOR DECISION
24 February 2010 G.D. Friedman, Senior Member
1. Julie Vine was granted disability support pension from 5 April 2008 but on 15 August 2008 she was told that she would be subject to an income maintenance period (IMP) from 28 May 2008 to 21 October 2008 during which her pension would not be payable because she had received termination and other payments when she ceased employment on 28 May 2008. On 6 March 2009 she was told that she was not qualified to receive the economic security strategy payment (ESSP) because she was not receiving disability support pension on 14 October 2008.
2. Ms Vine believes that the IMP should be re-calculated to disregard a payment she received in lieu of notice because it was an exempt lump sum, and that with a reduced IMP she would then be qualified to receive the ESSP. The respondent disagreed, and also claimed that her application could not succeed because of the date on which she applied to the Social Security Appeals Tribunal (SSAT) for review of the decisions.
ISSUES
3. The issues before the Tribunal are:
· Did Ms Vine apply to the SSAT more than 13 weeks after notice was given for review of the decision of 15 August 2008? If she did:
· Is it possible for Ms Vine to succeed in her application to reduce the length of the IMP? If it is possible:
· Was the IMP calculated correctly?
· Did Ms Vine apply to the SSAT more than 13 weeks after notice was given for review of the decision of 6 March 2009? If she did not:
· Is it possible for Ms Vine to succeed in her application that she was qualified to receive the ESSP? If it is possible:
· Was Ms Vine qualified to receive the ESSP?
DID MS VINE APPLY TO THE SSAT MORE THAN 13 WEEKS AFTER NOTICE WAS GIVEN FOR REVIEW OF THE DECISION OF 15 AUGUST 2008?
4. Requirements for applying to the SSAT for review of a decision are set out in s 154 of the Social Security (Administration) Act 1999 (the Administration Act):
154 Application requirements
(1) A person may apply to the SSAT for review of a decision by:
(a) sending or delivering a written application to:
(i) an office of the SSAT; or
(ii) an office of the Department; or
(iii)if the decision was made by the CEO or an employee of the Agency—an office of the Agency; or
(b) going to an office of the SSAT and making an oral application; or
(c)contacting an office of the SSAT by telephone and making an oral application.
(2)If a person makes an oral application in accordance with paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the day on which the application is made.
(3)If a written record of an oral application is made in accordance with subsection (2), Division 4 has effect as if the written record were a written application.
(4)An application may include a statement of the reasons for seeking a review of the decision.
5. On 17 March 2009 Ms Vine lodged a written application with the SSAT for review of the decision made on 15 August 2008 by an authorised review officer of Centrelink to impose an IMP from 28 May 2008 to 21 May 2008. She acknowledged that she received the letter dated 15 August 2008, and told the Tribunal that she made a number of telephone calls to Centrelink during the 13-week period after receiving the letter to appeal against the decision because she was advised by her union and a financial counsellor that the IMP period should have been reduced as the payment in lieu of notice should not have been included in the calculation.
6. Ms Vine explained that she did not make specific mention of the SSAT because she did not understand the difference between the SSAT and Centrelink as she had not previously been a Centrelink client and was suffering from a severe illness following the termination of her employment. She maintained that in her telephone conversations with Centrelink officers she discussed the appeal process, and on one occasion a Centrelink officer spent considerable time assisting with preparation of the appeal and promised to take the necessary administrative action to process her application.
7. Ms Vine agreed that the letter from Centrelink provided advice on applying the SSAT for review, and also contained a pamphlet containing information on how to request a review by the SSAT. She acknowledged that the SSAT has no record of a written application any time before March 2009, although she said that on receipt of the letter she would have lodged her application with the SSAT. Ms Vine also agreed that she did not contact the SSAT directly about seeking review of the decision until March 2009, and that at the SSAT hearing she did not mention any efforts she had made to seek review of the decision of 15 August 2008 in the following 13 weeks. She told the Tribunal that her illness sometimes caused confusion about dates.
8. In Re Frost and Secretary, Department of Social Security [1995] AATA 228 the Tribunal referred with approval to the practice of the Department of Veterans’ Affairs in treating the most informal query as a request for internal review, without the need for the applicant to use the word review, where appropriate. In Re Kelly andSecretary, Department of Social Security [1995] AATA 302 the Tribunal followed the reasoning in Re Frost and found that, on the facts, the concept of review was not necessary where there had been departmental error. In Re Marsh andSecretary, Department of Social Security [1996] AATA 669 the Tribunal was prepared to accept a broad definition of application for internal review when a person expresses concern by telephone about pension entitlements.
9. In Re Paino and Secretary, Department of Employment and Workplace Relations [2006] AATA 951 the Tribunal held at [32]:
Secondly, the information sheet clearly states that appeals are to be lodged with the SSAT. I do not accept that notifying Centrelink of an intention to appeal amounts to something in the nature of a constructive appeal in the event that the strict appeal provisions of Section 154(1) are not complied with.
10. The Tribunal takes into account that the wide interpretation of review in decisions such as Re Frost, Re Kelly and Re Marsh refers to review of decisions concerning social security entitlements where an inference might be drawn, in certain circumstances, that a person wishes to seek internal review of a decision. However, as indicated in Re Paino, the requirements in s 154 of the Administration Act relating to external review to the SSAT are more specific and refer to written applications made to the SSAT or an office of the respondent, or oral applications made to the SSAT.
11. On her own evidence Ms Vine was at times confused about dates because of her illness. An examination of the documents made by Centrelink following contact by Ms Vine on 24 September 2008, 2 October 2008, 10 October 2008, 3 November 2008 and 6 November 2008 shows that most enquiries were recorded as being of a general nature regarding her disability support pension and none refer to any application to the SSAT for review of the decision made on 15 August 2008 or to a desire by her to do so until she lodged her application for review on 17 March 2009. Ms Vine did not raise the issue of seeking review within 13 weeks when she attended the telephone hearing of the SSAT.
12. The Tribunal does not accept her evidence that she should be taken as having lodged an application with the SSAT within 13 weeks of receiving the letter dated 15 August 2008 merely because she would have done so, as there is no record of such an application before March 2009, which was significantly after the expiry of 13 weeks from the date of the decision 15 August 2008. In all the circumstances the Tribunal finds that Ms Vine applied to the SSAT more than 13 weeks after notice was given for review of the decision of 15 August 2008.
IS IT POSSIBLE FOR MS VINE TO SUCCEED IN HER APPLICATION TO REDUCE THE LENGTH OF THE IMP?
13. The date of effect of a favourable decision by the SSAT where an applicant has applied to the SSAT more than within 13 weeks after notice was given for review of a decision is set out in s 152 of the Administration Act:
152 Date of effect of SSAT decisions (other than Employment Pathway Plan decisions)
…
(3) Subject to subsections (4) and (5), if the SSAT:
(a) varies a decision under review; or
(b) sets aside a decision under review and substitutes a new decision;
the decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the decision under review has or had effect.
(4) If:
(a)a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the decision of the SSAT is:
(i)to grant the person’s claim for a social security payment or a concession card; or
(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person’s social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
14. In view of the Tribunal’s finding that Ms Vine applied to the SSAT more than 13 weeks after notice was given for review of the decision of 15 August 2008, s 152(4) of the Administration Act applies.
15. Section 43(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides:
43 Tribunal’s decision on review
…
Tribunal’s decision taken to be decision of decision‑maker
(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
16. In Re Secretary, Department of Employment and Workplace Relations and Mitchell [2006] AATA 804 the Tribunal stated:
58. The constraint in subsection 152(4) of the Administration Act on the operative date of a decision of the SSAT is in conflict with the discretion in subsection 43(6) to give the deemed decision of the person whose decision is being reviewed a retrospective effect. However, it is a well-established principle of statutory interpretation that a specific section will override an inconsistent general section, especially where the general section is contained in a separate earlier Act which is of general application: D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) at [4.32], [7.18], [7.21] and [7.26] – [7.31]. In applying that principle, I am mindful that in the case of the Administration Act, Parliament has made provision for appeals to this Tribunal, and has made certain specific amendments to the AAT Act. However, the Administration Act did not amend subsections 43(1) or (6) of the AAT Act.
59. Where (as in the present situation, by virtue of the AAT Act) this Tribunal stands in the shoes of the SSAT, and has the same powers and discretions as the SSAT, and its decision is deemed to be that of the SSAT, the specific constraint in subsection 152(4) on the effective date of the deemed SSAT decision should, in my view, prevail over the discretion to order retrospectivity contained in subsection 43(6), which is a provision of general application. In resolving the apparent conflict between the two provisions, it is also significant that the specific provision, subsection 152(4), does not literally refer to the effective date of the SSAT decision, but refers in terms to how the social security law is to have effect.
17. Therefore under s 152(4)(d) of the Administration Act any favourable decision by the Tribunal on the question of the calculation of the length of the IMP would take effect from the date of the application to the SSAT, namely 17 March 2009, which is significantly after the date of the expiry of the IMP. In Kuljic vSecretary, Department of Social Security (1994) 33 ALD 121 in relation to an application for an extension of time, Von Doussa J stated at 122:
If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal.
As there is no possibility of reducing the operative length of the IMP, any consideration of whether the IMP was calculated correctly would be futile for all practical purposes, so it is not possible for Ms Vine to succeed.
DID MS VINE APPLY TO THE SSAT MORE THAN 13 WEEKS AFTER NOTICE WAS GIVEN FOR REVIEW OF THE DECISION OF 6 MARCH 2009?
18. There was no dispute that on 17 March 2009 Ms Vine lodged her application to the SSAT in relation to the decision of 6 March 2009 that she was not qualified to receive the ESSP. Therefore the Tribunal finds that Ms Vine did not apply to the SSAT more than 13 weeks after notice was given for review of the decision of 6 March 2009.
IS IT POSSIBLE FOR MS VINE TO SUCCEED IN HER APPLICATION THAT SHE WAS QUALIFIED TO RECEIVE THE ESSP?
19. In view of the Tribunal’s finding that Ms Vine did not apply to the SSAT more than 13 weeks after notice was given for review of the decision of 6 March 2009, s 152(3) of the Administration Act applies, and any favourable decision by the Tribunal on the question of whether Ms Vine was qualified to receive the ESSP would take effect from the date of the decision by the authorised review officer of Centrelink, namely 6 March 2009. Therefore it would be possible for Ms Vine to succeed in her application if she meets the criteria for the ESSP.
WAS MS VINE QUALIFIED TO RECEIVE THE ESSP?
20. Section 900 of the Social Security Act 1991 (the SS Act) provides for the qualification to receive the ESSP:
900 Qualification for economic security strategy payment
(1)A person is qualified for an economic security strategy payment if subsection (2), (3) or (4) applies to the person.
(2) This subsection applies to a person if:
(a)the person was receiving one of the following payments in respect of 14 October 2008:
…
(ii)a disability support pension;
…
(b)except in the case of carer allowance, the person was receiving that payment because of a claim the person made on or before 14 October 2008.
21. The word receive is defined in s 23(2) and s 23(4) of the SS Act as follows:
23 General definitions
(1) In this Act, unless the contrary intention appears:
…
receive has the meaning given by subsections (2), (3), (4), (4AA) and (4AB).
…
(2)For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.
(4)For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.
Social security payment is defined in s 23(1) to include disability support pension.
22. In Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635 the Tribunal held that there was no entitlement to the ESSP where the applicant was not paid disability support pension in respect of the period that included 14 October 2008.
23. In view of its finding that Ms Vine cannot succeed in her application for review of the decision that the operative dates of the IMP imposed on her disability support pension were from 28 May 2008 to 21 October 2008, the Tribunal finds that for the purposes of s 23(1) of the SS Act Ms Vine was not receiving disability support pension in respect of 14 October 2008. Therefore she cannot satisfy s 900(2) of the SS Act and is not qualified to receive the ESSP.
DECISION
24. The Tribunal affirms the decisions under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
[signed]
Grace Horzitski, Associate
Date of hearing: 19 February 2010
Date of decision: 24 February 2010
Advocate for the applicant: Ms E. Totino, Victoria Legal Aid
Advocate for the respondent: Mr M. Hester, Centrelink Legal Services
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