Walden and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1064

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/392

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHEILA WALDEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member

Date16 February 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..........[Sgd]..........

KS Levy

Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension cancelled – whether notice of the decision to suspend and cancel pension was given – review of decision to suspend and cancel pension not sought within 13 weeks of being notified of those decisions – authorised nominees – change of address – decision affirmed

Evidence Act 1995 (Cth) s 160

Social Security Act 1991 (Cth) s 23(12)

Social Security (Administration) Act 1999 (Cth) ss 109, 237

REASONS FOR DECISION

16 February 2007   Dr KS Levy, RFD Senior Member   

Introduction

1.      Centrelink wrote to the applicant on 26 March 2003 at her residential address and advised that her Age Pension had been suspended because she had not returned her “update form” (see T17, folio 50).  Centrelink wrote again to the applicant at her residential address on 25 June 2003 and advised her that her pension had then been cancelled because she had not returned her “update form” (see T18, folio 51). 

2.      On 27 February 2004, Mrs Walden lodged a fresh application for Age Pension (T20, folio 56).  That application was approved and advice was provided to Mrs Walden on 5 March 2004 that it was to be effective from 13 February 2004 (T21, folio 79).  That letter of advice was forwarded to a Post Office box at Biggera Waters, which is a Post Office box belonging to her son Mr Jon Walden.  That was the postal address advised on the fresh application for Age Pension. 

3.      By a further letter dated 7 March 2004, the applicant was advised that she was not entitled to payment of arrears of pension as the applicant had not requested a review of the decision to cancel her Age Pension within 13 weeks of the cancellation of payment (T22, folio 81).  That decision was the subject of an application for review by Mr Jon Walden on behalf of the applicant, dated 13 December 2005 (T23, folio 83).  The original decision was affirmed on 2 March 2006.  Mr Walden then sought review of that decision by an Authorised Review Officer (ARO).  The ARO affirmed the original decision on 28 April 2006 (T28, folio 88).  He further appealed to the Social Security Appeals Tribunal (SSAT) but the original decision was again affirmed (see T2, folio 3 dated 31 May 2006).  On behalf of his applicant mother, Mr Jon Walden now appeals to this Tribunal for a further review of the decision not to pay arrears of pension. 

Issues

4.      The issues to be determined by the Tribunal are:

(i)Whether Mrs Walden was given notice of the decision to suspend and cancel her pension;

(ii)Whether a review was sought by Mrs Walden or her representatives of the decisions to suspend and cancel her pension within 13 weeks of receiving the notice of those decisions?

Evidence

5.      Essentially, the factual evidence, which has not been disputed, is as set out below and is accepted by the Tribunal as findings of fact:

(i)The applicant, Mrs Sheila Walden, was born on 30 May 1916.

(ii)For all of the period under review, the applicant has resided at 23 Rochester Terrace, Normanby, Queensland.  This is her “residential address”.

(iii)Mrs Walden has been in receipt of Age Pension at all times in relation to the facts set out in the application, with the exception of the period 26 March 2003 to 12 February 2004, when her pension was suspended and subsequently cancelled. 

(iv)From 12 April 1991, the applicant’s “postal address” was recorded as PO Box 1367, Toowong, Queensland (T32, folio 99).  From 14 June 1996 to 13 February 2004, all correspondence was sent to Mrs Walden’s residential address, that is, her postal address and her residential address were the same for that period (T32, folio 99).

·Mr Jon Walden

6.      In oral evidence, Mr Jon Walden stated his mother is 90 years of age.  He stated his mother has had dementia for about 10 years. 

7.      He submitted that the official address should have remained as the Post Office box in Toowong, but somewhere in 1996 or 1997 (14 June 1996 according to Centrelink records), her postal address was changed to her residential address and that this was not arranged by him or any member of his family.  He said there is no record of authority as to why the address was changed and that his mother has now been left financially disadvantaged.

8.      He pointed to inconsistencies in communications from Centrelink.  The witness said that he and his brother were joint nominees, but over the period under review, his brother had received 31 letters from Centrelink whereas he had only received 13. 

9.      Mr Walden also advised the Tribunal that he and other family members visited his mother regularly for her welfare and to attend to administrative issues for her. His sister-in-law had had power of attorney over his mother’s affairs until 2003. He explained that this was so because his brother travelled a good deal, and so did he.  He stated however, that his sister-in-law and his brother were estranged in 2001.

10.     The Guardianship and Administration Tribunal appointed Mr Walden and his brother as Administrators of Mrs Walden’s affairs in December 2003.

·Mr Leonard Lim

11.     This witness was the Centrelink Information and Technology Officer and provided a statement dated 7 November 2006. In addition, he provided oral evidence that information would, as he understood it, only be changed if there was a letter of advice requesting it.  The witness was not able to inform the Tribunal as to the efficacy of the system which might initiate changes of address.  The Tribunal was adjourned until 28 November 2006 to receive further evidence as to what records may have been retained about requests for change of address and what systems were in place. 

·     Mr Stephen Bradford

12.     The Tribunal resumed its hearing on 21 December 2006.  At that time, the Centrelink witness Stephen Bradford provided oral evidence to the Tribunal. This witness works for Centrelink and provided telephone evidence.  He is located at Tuggeranong, ACT and is a Systems Architect with Centrelink. He had worked there for 12 to 15 years and worked on various upgrades to the computer systems over that period. 

13.     In relation to changes of address, he advised that these were effected following a customer notifying a change of circumstances.  He said that while he is not an administrative officer, he assumed there was a requirement to complete a form.  But in any event, he advised if an address was changed, it must have been preceded by a request.  He said the system was not mature enough for somebody to be able to request a future change.  Changes therefore are normally made after the event, and could have been made some weeks after a request was made.  In relation to the case now under review, Mr Bradford advised that any record of who requested the change and when it occurred is now no longer available from the Department’s system.

14.     Mr Bradford also advised that there was a quality control check on changes to records and there would be a percentage of records which were checked by a supervisor.  He explained that an address record would be activated, not necessarily because a new address was entered but because someone advised that an old post code was no longer valid.  He said there is currently an online data entry system and this would certainly have been the type of system in operation at the time the address was changed in 1996.  However, he said that it would not have been an immediate change but would have been done by a batch system.  In other words, a batch of amendments would have been prepared based on an original request, and a systems supervisor would have been responsible for certifying this data before it was applied to the system.

15.     Under cross-examination, Mr Walden referred to the address changed in 1996.  He said his mother was in residential care and asked whether any specific query was made in such circumstances.  Mr Bradford informed the Tribunal that all checks were based on the type of transaction and not on need of clients.  Mr Walden said that Centrelink should have known that his mother was a person requiring a high degree of care.  Mr Bradford said he was not a service officer and therefore could not comment.  He was responsible for computer systems.  He said that the change of address occurred after 14 June 1996 because there was a request to put an end date to the Post Office box address shown.  It then reverted to Mrs Walden’s residential address of 23 Rochester Terrace.  That is, that latter address then became the active address again and the previous postal address was removed. 

Legislative Framework

16.     The following legislative provisions apply in the present case.

“Social Security (Administration) Act 1999

Sect 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.

Sect 237

Notice of decisions

(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.

Social Security Act 1991

Sect 23

General Definitions

(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.

Consideration 

17.     The Tribunal has taken into account all of the evidence and the relevant statutory and case law in reaching a determination in this matter. The issues for determination are considered below.

·     Issue 1 – Whether Mrs Walden was given notice of the decision to suspend and cancel her pension

18.     It is apparent that a letter dated 26 March 2003 was prepared and despatched to Mrs Walden advising her that her Age Pension had been suspended because she had not returned her “update form” (T17, folio 50).  Also, there is evidence that a letter dated 25 June 2003 was forwarded to Mrs Walden at her residential address which advised that her Age Pension was then being cancelled as she had not returned her “update form” (T18, folio 51). 

19. Section 237 deems that a person has been given notice of a decision where notice has been sent by prepaid post to the postal address of the person last known to the Secretary (s 237(1)(c)). The requirement of notice is satisfied under Social Security law by properly addressing, prepaying and posting the document as a letter (s 237(2)). If those requirements are met, notice is deemed to have been given to the person when the letter would have been delivered “…in the ordinary course of the post unless the contrary is proved”. 

20. I accept that s 237(1)(c) and 237(2) have been satisfied. In terms of s 237(3), it could be expected that those letters would have been delivered within two to three working days. One could adopt the statutory provision in section 160 of the Evidence Act 1995 which specifies that the time of receipt is deemed to be four working days after posting unless there is evidence to raise a doubt about this presumption.  In any event, there has been no evidence to show that the letters were not delivered. 

21.     Mr Walden asserts that it was not delivered to the Post Office box address which he regarded as being the last address advised to Centrelink.  However, sworn evidence from two Centrelink officers who are involved in administration and systems maintained by Centrelink, have indicated that a system change would not occur without an initial advice requesting that change.  Apart from the address being changed (which the Tribunal accepts on the balance of probabilities must have been requested by some person), it appears that Mr Walden and his brother each were involved in visiting his mother’s residential address over the decade commencing in the early 1990s to assist her with any mail or administrative work that may have needed attention.  In addition, Mr Jon Walden’s sister-in-law had power of attorney until 2003, some two years after she had separated from her husband (Mr Jon Walden’s brother).  The evidence shows the family had clearly been active in oversighting Mrs Walden’s affairs since the early 1990’s and both Mr Jon Walden and his brother who were appointed administrators of their mother’s affairs in December 2003 by the Guardianship and Administration Tribunal.  On 9 February 2004, Mrs Walden signed an “Authority for a Nominee” form, which nominated both her sons as nominees to Centrelink (T19, folio 52). 

22.     In all of the circumstances, even though Mr Jon Walden disputes the change of address, taking account of the evidence from the Centrelink officers, Mr Walden’s brother and his brother’s then wife where also involved in administering Mrs Walden’s affairs and may have been responsible for changing the address.  However, no evidence (written or oral) was presented by the applicant Mrs Walden, Mr Walden’s brother or Mr Jon Walden’s former sister-in-law for the Tribunal to make any further judgment about that aspect.  In the circumstances therefore, the Tribunal finds that it cannot be proved that the letters were not delivered. On the balance of probabilities, the Tribunal finds that both letters were delivered to Mrs Walden’s residential address.

23. Even, however, if the letters were not in fact delivered to Mrs Walden’s residential address and if either of her sons or her then daughter-in-law did not in fact receive those letters, there is a statutory bar to determining that notice was not given to the applicant in those circumstances. Section 23(12) of the Social Security Act 1991 provides that where notice of a decision is given under s 237 of the Social Security (Administration) Act 1999 then those provisions apply to the notice “…even if the Secretary is satisfied that the person did not actually receive the notice”. The Tribunal however has been satisfied that the letters were delivered and s 23(12) is not relied upon.

24.     Therefore, the Tribunal finds that Mrs Walden was given notice of the decision to suspend and cancel her pension.

·     Issue 2 – Was a review sought by Mrs Walden or her representatives of the decisions to suspend and cancel her pension within 13 weeks of receiving notice of those decisions?

25.     If a review is requested within 13 weeks of the notice being given, then a favourable determination resulting from such a review could result in the pension being reinstated from the date the original decision took effect (s 109(1)).  If a review is requested more than 13 weeks after the notice is given, then any favourable determination resulting from the review will have an effective date on the day on which the application for review was made (s 109(2)).

26.     In this case, the claim for review of the original decision was made on 13 December 2005.  This was over two and a half years after the decisions and notices were provided advising of the suspension and cancellation of Age Pension.  As this was in excess of 13 weeks after the original notices, then the effective date for favourable determination cannot be earlier than the day on which the application for review was made. 

27.     It is unfortunate that despite three people being involved in administration of Mrs Walden’s affairs over the period in question, that somehow these critical notices were overlooked.  The present circumstances do not point to any maladministration by Centrelink and in any event, no flexibility is available where a request for review is made after the 13 week period specified in the legislation.

28.     Therefore, in all of the circumstances, the decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member

Signed:         Fiona Kamst
  Legal Research Officer

Date/s of Hearing  14 November 2006, 21 December 2006
Date of Decision  16 February 2007
For the Applicant  Mr J Walden (the applicant’s son)
For the Respondent                  Mr C Keim, Departmental Advocate