Warby; Secretary, Department of Family and Community Services - [2000] AATA 1067

DECISION AND REASONS FOR DECISION [2000] AATA 1067

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/46

GENERAL ADMINISTRATIVE DIVISION )
          Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
          And     SONIA THERESE WARBY
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date5 December 2000
PlaceSydney

Decision        The Administrative Appeals Tribunal ("the Tribunal") sets aside the decision of the Social Security Appeals Tribunal dated 23 November 1999, which set aside the decision of the Applicant, Secretary, Department of Family and Community Services, dated 30 July 1999 as affirmed by the Authorised Review Officer on 18 August 1999. In substitution for the decision set aside, the Tribunal finds that pursuant to sections 1243A(1) and 900AZZA(3) of the Social Security Act 1991, Ms Sonia Therese Warby is not entitled to receive arrears of Family Tax Payment for the period 16 July 1998 to 17 June 1999. Family Tax Payment can only be paid to Ms Warby from the date of her application on 29 June 1999.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Social Security – qualification payment of arrears of family tax payment – 13 week rule – notification "given" – arrears not payable - qualified only from date of application

LEGISLATION

Social Security Act 1991 ss 23(12), 900AG, 900AZV, 900AZZ, 900AZZA, 1243A and 1302A(1)
Acts Interpretation Act 1901 ss 28A, 29

CASES

Estate of Thomas Biggin and Secretary Department of Family and Community Services [2000] AATA 125
Fancourt and Mercantile Credits Ltd (1983) 154 CLR 87
Quynh Ngoc Luong and Secretary, Department of Social Security (AAT 13355, 25 September 1998)
Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207
Re Oates and Secretary, Department of Social Security, (1994) 37 ALD 241
Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631
Secretary of Social Security and Manley (AAT 10285, 11 July 1995)
Secretary, Department of Family and Community Services and Thipthorp (1999) AATA 823

REASONS FOR DECISION

5 December 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal (the Tribunal") was the decision of the Social Security Appeals Tribunal ("the SSAT"), dated 23 November 1999, (T2) to set aside the decision of the Secretary, Department of Family and Community Services ("the Applicant Department in these proceedings"), on 30 July 1999 (T23) and the Authorised Review Officer on 18 August 1999 (T29). The directions by the SSAT were as follows:
"… the tribunal decided to set aside the decision and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the decision that family tax payment was not canceled (sic) in accordance with Section 900AG(2) of the Social Security Act (the Act)." (T2/5)
The primary decision of the Department refused payment of arrears of Family Tax Payment to Ms Sonia Therese Warby, the Respondent in these proceedings, for the period from 16 July 1998 until 17 June 1999.
The Applicant Department was represented by its advocate, Mr B Slattery and the Respondent was self-represented.
ISSUES BEFORE THE TRIBUNAL
The issue to be decided was:
·Whether Ms Warby was entitled to arrears of family tax payment during the period from 16 July 1998 until 17 June 1999, having particular regard to the legislative requirement that arrears may only be paid where the person has sought a review of the cancellation of the family tax payment within 13 weeks of having been notified in writing of that decision (section 1243A(1) and 900AZZA(3) of the Social Security Act 1991 ("the Act")),("the 13 week rule").
In order to decide the above issue, I was required to consider:
· Whether Ms Warby's family tax payment was correctly cancelled by her telephoned instruction on 10 July 1998 (sections 900AG(2) and 900AZV of the Act);
· Whether a letter of the Department said to have been sent to Ms Warby on 10 July 1998 advising her of the cancellation of family tax payment was "given" pursuant to section 1302A(1) of the Act.
· If the family payment was not cancelled correctly, whether the 13-week rule prevents the payment of arrears.

LEGISLATION

The relevant legislation in this case is the Social Security Act 1991 ("the Act") as it applied on 10 July 1998, particularly sections 900AG, 900AZV, 900AZZ, 900AZZA, 1243A(1) and 1302A.
Section 900AG of the Act outlines the procedure for the payment of family tax payment. It provides:
"900AG Election to receive family tax payment
900AG(1)Family tax payment is not payable to a person unless the person has elected to receive the payment.
900AG(2)A person is taken to have elected to receive family tax payment if, and only if:
(a)the person has:
(i) made a claim for the payment; or
(ii)has given the Secretary notice in writing, in a form approved by the Secretary, stating that the person wishes to receive the payment; and
(b)the person has not, since the person last made such a claim or gave such a notice, given the Secretary a notice, in writing, in a form approved by the Secretary, stating that the person no longer wishes to receive the payment.
…"

Section 900AZV of the Act provides for the cancellation or suspension of family tax payment and section 900AZZ provides for the resumption of payment following a cancellation or suspension:
"900AZV Cancellation or suspension determination
If the Secretary is satisfied that family tax payment is being, or has been, paid to a recipient to whom it is not, or was not, payable under this Act, the Secretary is to determine that the family tax payment is to be cancelled or suspended.
Note 1:A determination under this section is not necessary if an automatic termination is produced by section 900AZP or 900AZQ (see subsection 900AZO(1).
Note 2:For the date of effect of a determination under this section see section 900AZZB.
…
900AZZResumption of payment after cancellation or suspension
900AZZ(1)If the Secretary:
(a)cancels or suspends a recipient's family tax payment under section 900AZV or 900AZW; and
(b)reconsiders the decision to cancel or suspend; and
(c)becomes satisfied that, because of the decision to cancel or suspend the person has:
(i)the recipient did not receive family tax payment that was payable to the recipient; or
(ii)the recipient is not receiving family tax payment that is payable to the recipient;
the Secretary is to determine that family tax payment was or is payable to the recipient.
900AZZ(2)The reconsideration referred to in paragraph (1)(b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary's own initiative.
Note:For the date of effect of a determination under this section see section 900AZZA.
…"
Section 900AZZA provides for the date of effect of a determination by the Secretary, as relevant:
"900AZZA Date of the effect of favourable determination
…
900AZZA(3) If:
(a)a decision (the previous decision) is made in relation to a family tax payment; and
(b)a notice is given to the recipient telling the recipient of the making of the previous decision; and
(c)the recipient applies to the Secretary under section 1240, more than 13 weeks 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;
the determination takes effect on the day on which the recipient sought the review.
900AZZA(4) If:
(a)a decision (the previous decision) is made in relation to a family tax payment; and
(b)no notice is given to the recipient telling the recipient of the making of the previous decision; and
(c)the recipient applies to the Secretary under section 1240 for review of the previous decision; and
(d)the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
…"
Section 1243A(1) of the Act provides the legislative basis for the 13 week rule and outlines the circumstance in which certain determinations can not be revived:
"1243A Certain determinations not to be revived
1243(1)If:
(a)the Secretary makes a determination (the first determination) that:
(i)a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the second determination):
(i)to cancel the social security payment; or
(ii)to reduce the rate at which the social security payment is payable; and
(c)notice of the second determination is given to the person; and
(d)the person applies under section 1240 for review of the second determination; and
(e)the application is made more than 13 weeks after the notice is given; and
(f)a decision (the review decision) is made by the Secretary, the CEO, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i)to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i)the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2) In this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a)the person applies for review of another determination or decision; and
(b)an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
Note 1:For the meaning of given in relation to a notice of a decision see section 1302A.
Note 2:A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3:This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4:If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increased rate, certain sections (eg section 887) restricts the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
…"
Notice is deemed to be "given" pursuant to section 1302A of the Act. It provides as relevant:
"1302A Notice of Decisions under this Act
1302A(1) If a notice of a decision under this Act 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 pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1:compare section 28A of the Acts Interpretation Act 1901
Note 2:Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
1302A(2)Notice of a decision under this Act may be given to a person by properly addressing, prepaying and posting the document as a letter.
Note: compare first limb of section 29 of the Acts Interpretation Act 1901
1302A(3)If notice of a decision under this Act 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 letter would be delivered in the ordinary course of the post unless the contrary is proved.
Note: compare second limb of section 29 of the Acts Interpretation Act 1901

THE EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents"), and the following Exhibits.
ITEM DATE NAME
T-Documents Exhibit A1
Amended Statement of Facts and Contentions of the Applicant 12 September 2000 Exhibit A2

Oral evidence was given by the Respondent, Ms Sonia Therese Warby.
EVIDENCE OF THE RESPONDENT, SONIA THERESE WARBY
Ms Warby, whose date of birth was 2 June 1978, acknowledged that she was granted Family Tax Payment on 21 May 1998 (T29/72) following her application for the payment on or about 18 May 1998, and following the birth of her daughter, Shae-Maree Johnstone-Warby. Ms Warby told me that she subsequently contacted the Department by telephone on 10 July 1998, and after a conversation with an officer of the Department, requested that her Family Tax Payment be cancelled.
Ms Warby told the Tribunal that she did not receive a letter from the Department dated 10 July 1998, a copy of which was said to be at T9, following her telephoned cancellation of the Family Tax Payment. She said that she had always previously received mail at the address where she lived at that time, and also at her previous address. She had had no problems with the receipt of other mail.
The Tribunal noted that the letter dated 10 July 1998 (T9), advised the Respondent that:
" We will not be paying you Family Tax Payment any more. This is because you told Centrelink to stop your payments."

The departmental letter at T9 was addressed to the Respondent and advised of her right to appeal the decision to cancel the Family Tax Payment and of the limited time frame within which to lodge such an appeal. Mr Slattery claimed it had been sent to Ms Warby. The letter stated:
"… if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you can only get back payment of Family Allowance from the date you ask."

Ms Warby was questioned about her recollection regarding the cancellation of Family Tax Payment in the context of a computer file note at T8 that recorded:
"Client requested cancellation of FTP. Client has been advised that FTA is available though the ATO if income within limits …
CLIENT INSISTED FTP BE CANCELLED AS SHE WOULD PREFER TO GET IT IN LUMP SUM AT THE END OF THE YEAR IN THE FORM OF TAX REFUND."
Ms Warby said that she would not have insisted that the Applicant cancel her Family Tax Payment if she had known that she would not receive the payment in a lump sum because she had no income in that year. She claimed that she was not advised by the representative of the Department to whom she spoke, to contact the ATO.
When Ms Warby's attention was drawn to a Claim Form for Family Allowance, Maternity Allowance, Maternity Immunisation Allowance, Family Tax Payment and Childcare Assistance, which she had signed and dated 18 May 1998 (T4), Ms Warby said that she could not remember the content of it. She said that she had received it at Maitland Hospital just after the birth of her daughter and could not recall the section on Family Tax Payment at T4/22 which explained the Family Tax Payment. I noted from the SSAT decision that Ms Warby suffered "post-natal depression and high blood pressure" necessitating a longer than expected hospital stay after the birth of her daughter on 13 May 1998, so that I felt her lack of recall about the Family Tax Payment was quite understandable.
Ms Warby also recounted other errors she had encountered with the administration of the Department over the past twelve months. She said that she had made an FOI request regarding her file to which the Department had failed to respond to until the day of the SSAT hearing when it was finally handed to her.
I noted that Ms Warby attended the Department on 29 June 1999 to lodge a Family Tax Payment Election form (T10), which was granted pursuant to section 900AZZA(3) of the Act (T15), with Ms Warby pursuing arrears for the period 16 July 1998 to 17 June 1999.
SUBMISSIONS AND CONCLUSIONS
Having heard the evidence, I had to take it into account the submissions of the parties, the case law and legislation to make the correct and preferable decision as to whether Ms Warby was entitled to arrears of Family Tax Payment for the period 16 July 1998 to 17 June 1999. As noted above, in order to decide whether the Respondent was entitled to arrears of Family Tax Payment during the relevant period, I was first required to consider:

Whether the Respondent's Family Tax Payment was lawfully cancelled on 10 July 1998 (sections 900AG(2) and 900AZV of the Act);
Whether a letter of the Department said to have been sent to the Respondent on 10 July 1998 advising her of the cancellation of Family Tax Payment was "given" pursuant to section 1302A(1) of the Act;
If the family payment was not cancelled correctly, whether the 13-week rule prevents the payment of arrears for the period 16 July 1998 to 17 June 1999 (sections 1243A and 900AZZA(3) of the Act).

I noted Mr Slattery's acknowledgment on behalf of the Department that Ms Warby had been subjected to an arduous experience with regard to the matters surrounding her Family Tax Payment and its cancellation.
He acknowledged further that errors had been made in the method of cancellation of Ms Warby's Family Tax Payment, adding that a remedy may be able to be found in the Compensation for Detriment caused by Defective Administration ("CDDA") scheme.
WHETHER THE RESPONDENT'S FAMILY TAX PAYMENT WAS CORRECTLY CANCELLED ON 10 JULY 1998
I noted from Ms Warby's uncontroverted evidence that she had been receiving Family Tax Payment shortly after her application was lodged on or about 18 May 1998 (T4). She cancelled her Family Tax Payment on 10 July 1998 by telephoning the Department, and after discussion with an officer of the Department. Ms Warby submitted that the only reason why she cancelled her fortnightly Family Tax Payment was because she was advised by Centrelink that she "… could receive the FTP in one of two ways, fortnightly though Centrelink or at the end of each financial year through the Australian Taxation Office" (T11/37). She said that she had not been advised that this would not apply in her situation because she was not intending to re-enter the workforce after the birth of her daughter and thus, would not be earning sufficient income to lodge a tax return.
I am mindful of the requirements in section 900AG(2) of the Act, which states that to cancel Family Tax Payment, the request must be made in writing in a form approved by the Secretary. As relevant section 900AG(2) follows:
"900AG(2)A person is taken to have elected to receive family tax payment if, and only if:
(a)the person has:
(i) made a claim for the payment; or
(ii)has given the Secretary notice in writing, in a form approved by the Secretary, stating that the person wishes to receive the payment; and
(b)the person has not, since the person last made such a claim or gave such a notice, given the Secretary a notice, in writing, in a form approved by the Secretary, stating that the person no longer wishes to receive the payment.
…"

The uncontroverted evidence before me in this case was that Ms Warby telephoned her request to have her Family Tax Payment cancelled. As a consequence, the SSAT held that since the cancellation of Ms Warby's Family Tax Payment had not been correctly handled pursuant to the requirements of section 900AG(2), it had not been lawfully cancelled, and thus Centrelink had withheld payment due to administrative error.

Mr Slattery, on behalf of the Applicant, submitted that the Department did not agree with the finding by the SSAT that Ms Warby's Family Tax Payment had not been cancelled due to the non-compliance with the requirements of section 900AG(2) of the Act. He said that:
"The key finding of the SSAT is that the respondent, [Ms Warby] had not, since being granted the family tax payment, "given the Secretary a notice, in writing, in a form approved by the Secretary, stating that she no longer wishes to receive the payment." … The SSAT found that this was a requirement of sub-section 900AG(2) of the Social Security Act 1991. As a consequence the SSAT found that the respondent's family tax payment was "not cancelled and Centrelink withheld payments due to Ms Warby through administrative error". The SSAT decided that the respondent was entitled to full arrears of family tax payment."
Mr Slattery further submitted that whilst it may not have been the correct and preferable decision in the circumstances, the Respondent's Family Tax Payment was cancelled in accordance with section 900AZV of the Act following the oral/telephoned request by Ms Warby.
He said, regardless of whether the "… cancellation was … done in strict accordance with the Act requirements …", it was the case that for all cancellations the thirteen week rule, which limits "… the payment of arrears where the person seeks a review of a decision more than 13 weeks after being notified in writing of the decision …", would still apply. I noted that the thirteen week rule arises out of section 1243A of the Act. Section 900AZZA(3) of the Act limits the commencement date when a favourable determination can take effect, that is only from the date of the re-application. My further comments regarding the thirteen week rule are set out later in these reasons.
I noted that section 900AZV of the Act provides for cancellation of Family Tax Payment without any request being made by a recipient. As relevant the section follows:
"If the Secretary is satisfied that family tax payment is being, or has been, paid to a recipient to whom it is not, or was not, payable under this Act, the Secretary is to determine that the family tax payment is to be cancelled or suspended."

I accepted that the cancellation of Ms Warby's Family Tax Payment had not been made in compliance with section 900AG(2) of the Act. I found however, that pursuant to section 900AZV of the Act, the Secretary could, if satisfied that Family Tax Payment was being paid to a recipient to whom it was not payable, cancel the payment. I further found that even though the Secretary's actions in that regard were based on Ms Warby's telephoned instructions of 10 July 1998, the cancellation was lawful.
WHETHER THE DEPARTMENT'S LETTER OF 10 JULY 1998 WAS "GIVEN" TO MS WARBY PURSUANT TO SECTION 1302A(1) OF THE SOCIAL SECURITY ACT 1991
I next moved to consider whether the Department's letter of 10 July 1998, which was before the Tribunal at T8, was "given" to Ms Warby pursuant to section 1302A(1) of the Act. Ms Warby has told both the SSAT and this Tribunal that she did not receive that letter, and that she only reapplied for Family Tax Payment on 29 June 1999 because she noticed it was not being paid.
Section 1302A of the Act provides that if a letter notifying a decision is sent to the postal address of a person last known to the Secretary, as was said to have been done in this case, the person is deemed to have received the letter. As relevant section 1302A(1) of the Act and sections 28A and 29 of the Acts Interpretation Act 1901 follow:
"1302A(1) If a notice of a decision under this Act 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 pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1:compare section 28A of the Acts Interpretation Act 1901
Note 2:Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
…"
Sections 28A and 29 of the Acts Interpretation Act 1901 outline the process for service of a document. They provide, as relevant:
"28A(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
…

29(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

…"

Mr Slattery submitted that the letter of 10 July 1998 was sent by pre-paid post to Ms Warby's correct home address (the postal address of the person last known to the Secretary (section 1302A of the Act)) and therefore, notice of the decision taken for purposes of the Act had been "given" to Ms Warby. He said, referring to sections 1302A(1) and 1302A(3) of the Act, that the contrary had not been proved.
I noted that Ms Warby reapplied for Family Tax Payment 29 June 1999 because she noticed she had not been receiving it. She said that she always kept all correspondence and queried, given the thousands of letters the Department processed, whether her particular letter had ever been sent. Ms Warby said that she had been living at the same address for a number of years and had not experienced any problems in receiving her mail. I noted that Ms Warby denied receiving the letter, and although that is not conclusive either way, noted that the letter of 10 July 1998 had not been returned to the Department.
Mr Slattery submitted that the letter of 10 July 1998 which followed Ms Warby's request that her Family Tax Payment be cancelled, stipulated that any request for review pursuant to section 1240 of the Act must be within thirteen weeks (section 1243A(1) of the Act) after the notice was "given" (section 1302A of the Act). He submitted that no arrears could be paid for any reason where a person sought review of a decision more than thirteen weeks after being given written notice of the decision. Mr Slattery submitted that section 1302A was inserted into the Act by the Social Security Legislation Amendment Act (No3) 1992 (No 230/1992) which received assent on 24 December 1992. He also referred me to the Explanatory Memorandum which introduced the Bill. Whilst not being bound by the Explanatory Memorandum, I noted that the relevant clause thereof stated:
"This measure will put beyond doubt that if a person sought a review of an adverse decision more than 3 months after a notice of the decision was given, arrears would not be payable back to the date of the adverse decision if the review resulted in a favourable decision."
I was mindful that the address on the purported copy of the letter to Ms Warby dated 10 July 1998 was the correct address for her. Given the lack of discretion in section 1302A(1) of the Act which states that if a notice of a decision under the Act is sent by pre-paid post to the postal address of the person last known to the Secretary, notice of the decision is taken for purposes of the Act to have been "given" to the person. However, I looked to sections 28A and 29 of the Acts Interpretation Act 1901 for further guidance.
Section 28A and 29 of the Acts Interpretation Act 1901 essentially mirror the requirements under section 1302A(1) of the Act. They provide that notice is given where a communication has either been left or sent by pre-paid post to the last known address of the person (section 28) or where the document has been properly addressed, prepaid and posted as a letter (section 29).
I noted that in instances where either section 1302A of the Social Security Act 1991 and sections 28 and 29 of the Acts Interpretation Act 1901 apply, section 23(12) of the Social Security Act 1991 stipulates that a notice is given under either section, even where the Secretary is satisfied that it was not received.
"23(12) If:
(a)section 1302A of this Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 1302A applies, or sections 28A and 29 apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
NoteAn example of a circumstance that is likely to satisfy the Secretary that the person did not actually receive the notice is if the notice is sent back to the Department marked "return to sender" or "not at this address" or "whereabouts unknown".
…"
Mr Slattery referred me to Fancourt and Mercantile Credits Ltd (1983) 154 CLR 87 and to the discussion there of deemed receipt of notices. I noted that in both Fancourt and the Acts Interpretation Act 1901, the concept is of deemed receipt of a notice, whereas in section 1302A of the Social Security Act 1991, the concept is of notice "given". Provided that a pre-posted notice is "given" to the person at the address last known to the Secretary, and there is no proof it has not been "given", the communication will be deemed to have been received. In this case, notwithstanding Ms Warby's non-recollection of receiving a notice, the letter of 10 July 1998 was not returned to sender, and no objective evidence of its non-receipt was provided. There were no floods or other disruption to mail activities in July 1998 although Ms Warby did mention in her evidence, certain departmental inefficiencies which occurred from time to time. I was not satisfied from the evidence that there were departmental difficulties with mail at the relevant time.
I have come to the conclusion from the evidence before me that the letter at T9 was a copy of the letter sent to Ms Warby by the Department, and that it had been "given" to her within the terms of section 1302A of the Act.
Therefore I find she was given notice that to appeal the cancellation of her Family Tax Payment which took place at her telephoned request, she would have to have contacted the Department within thirteen weeks of the mailing of the letter of 10 July 1998 in order to have been eligible for any arrears. I have no doubts about the veracity of Ms Warby's evidence, and consider there are issues of procedural fairness if a person is to respond to a letter that she did not receive. However, I am bound to apply the legislation as it stands.
SECTION 1243A AND 900AZZA(3) OF THE SOCIAL SECURITY ACT 1991
I then moved to consider section 1243A and 900AZZA(3) of the Act, which as relevant follow:
"1243A          Certain determinations not to be revived
1243(1)If:
(a)the Secretary makes a determination (the first determination) that:
(i)a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the second determination):
(ii)to cancel the social security payment; or
(iii)to reduce the rate at which the social security payment is payable; and
(c)notice of the second determination is given to the person; and
(d)the person applies under section 1240 for review of the second determination; and
(e)the application is made more than 13 weeks after the notice is given; and
(f)a decision (the review decision) is made by the Secretary, the CEO, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i)to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i)the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2)      In this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a)the person applies for review of another determination or decision; and
(b)an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
Note 1:For the meaning of given in relation to a notice of a decision see section 1302A.
Note 2:A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3:This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4:If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increased rate, certain sections (eg section 887) restricts the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
…
900AZZA(3)    If:
(a)a decision (the previous decision) is made in relation to a family tax payment; and
(b)a notice is given to the recipient telling the recipient of the making of the previous decision; and
(c)the recipient applies to the Secretary under section 1240, more than 13 weeks 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;
the determination takes effect on the day on which the recipient sought the review.
…"
I noted that section 1243A was inserted into the Act with the purpose of further limiting the payment of arrears. Pursuant to the section, once a decision has been made to cancel Family Tax Payment, unless that decision is appealed within 13 weeks of the decision, or no notice was given of the decision, then arrears cannot be paid. Thus, the decision to pay Family Tax Payment, (once granted), will commence no earlier than the date on which the person has sought review of the adverse decision, being the decision to cancel the payment.
I noted in particular sections 1243(1)(h) and (i) of the Act which make it clear that the mere setting aside of the determination to cancel does not of itself revive the first determination to award the Payment. Thus, even if the cancellation of Ms Warby's Family Tax Payment on 10 July 1998 was not the correct and preferable decision to have been made, the operation of section 1243A and the 13 week rule prevents arrears from being payable to her. There is no discretion for me to exercise, and I am only able to find that the earliest date on which Ms Warby's Family Tax Payment can commence is from the date of her application on 29 June 1999.
I was mindful of the decisions, amongst others, of Secretary of Social Security and Manley (AAT 10285, 11 July 1995) and Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207. I noted in that case that the Tribunal Members were sympathetic towards citizens who had suffered injustice due to administrative error of the (then) Department of Social Security. However, in both of the above named cases, it was nevertheless held that arrears could not be paid. Other decisions, and there are many more where the 13 week rule has operated to prevent payment of arrears, include: Re Oates and Secretary, Department of Social Security, (1994) 37 ALD 241; Quynh Ngoc Luong and Secretary, Department of Social Security (AAT 13355, 25 September 1998); and, Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631.
I was mindful of the decision Secretary, Department of Family and Community Services and Thipthorp (1999) AATA 823. In that case, the Tribunal found that there was insufficient evidence to establish that a notice of a decision to cancel Mrs Thipthorp's Family Payment was indeed issued by Centrelink, and accordingly the Tribunal held that arrears were payable. I distinguish Thipthorp (supra) because in Ms Warby's case there was no evidence before me to convince me on the balance of probabilities that the letter at T9 was not a faithful copy of the letter sent to Ms Warby at her current address. I was satisfied that the requisite letter had been "given" to Ms Warby pursuant to section 1302A(1) of the Act.
I further noted the decision of the Tribunal in Estate of Thomas Biggin and Secretary Department of Family and Community Services [2000] AATA 125, where Dr Campbell of the Tribunal held that the 13 week rule did not apply because the decision to cancel Mr Biggin's Disability Support Pension was based upon a factual error by the Department. The particular circumstances of that case were substantially different from Ms Warby's, and that decision can accordingly be distinguished.
I have considered the application of section 1243A(1) of the Act, and find that even if the decision to cancel Ms Warby's Family Tax Payment was incorrect, section 1243A of the Act prevents the payment of arrears in circumstances where an application to renew the Family Tax Payment was made more than thirteen weeks after the decision to cancel. I note that whilst I am bound by the legislation and not the Explanatory Memorandum, I am mindful that the Social Security Amendment Act (No.2) 1993 in which section 1243A(1) was introduced, makes it clear that the purpose of the legislation is that arrears of Family Tax Payment will not be paid earlier than the date on which a person seeks a review of an adverse decision unless no notice of the decision was given to the person, or the review is sought within 13 weeks of the notification.
I find after considering the application of sections 900AZZA(3) and 1243A(1) of the Act, that there is no discretion to allow arrears of Family Tax Payment to be paid to Ms Warby because of the finding I have made that the decision to cancel her Family Tax Payment was lawfully made pursuant to section 900AZV of the Act. I have found further that the letter of 10 July 1998 was "given" to her pursuant to section 1302A(1) of the Act, and that she applied for reinstatement of her Family Tax Payment well outside the thirteen week window.
CONCLUSIONS
For the reasons given above, I have found that although the decision to cancel Ms Warby's Family Tax Payment did not comply with section 900AG(2) of the Act, her Family Tax Payment was lawfully cancelled pursuant to section 900AZV of the Act.
There were no circumstances in play to convince me otherwise, on the balance of probabilities, than that the letter of the Department advising of cancellation of Ms Warby's Family Tax Payment 10 July 1998 (T9) was "given" pursuant to section 1302A of the Act. Therefore, even though Ms Warby has maintained throughout the period that she did not receive the letter of 10 July 1998, I have found that the letter was "given" to her within the terms of section 1302A(1) of the Act.

Ms Warby sought review of the Department's decision to cancel her Family Tax Payment on 29 June 1999 (T10) more than 13 weeks after the notice to cancel was given and she cannot, therefore, be paid arrears of Family Tax Payment. Pursuant to section 900AZZA(3) of the Act, in circumstances where the application for review is outside of the thirteen week period prescribed, arrears can only be paid from the date of application. In the instant case, the date of application is 29 June 1999. This is further reinforced by the presence of section 1243A of the Act acting against the award of arrears.
I find, therefore, that the decision of the SSAT to award arrears of Family Tax Payment to Ms Warby was not the correct and preferable decision to be made according to the Social Security Act 1991 and set it aside. In substitution, I find that Family Tax Payment can only be paid to Ms Warby from the date of her application on 29 June 1999. My decision follows.
I have noted the statement by the Applicant in its revised Statement of Facts and Contentions dated 6 September 2000 that the Department is considering the possibility of application of the Compensation for Detriment caused by Defective Administration ("CDDA") scheme to Ms Warby's situation. I am mindful of Mr Slattery's assurances at the Hearing that he would personally follow up the situation with regard to the CDDA for Ms Warby.
DECISION
The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 23 November 1999, which set aside the decision of the Applicant, Secretary, Department of Family and Community Services, dated 30 July 1999 as affirmed by the Authorised Review Officer on 18 August 1999.
In substitution for the decision set aside, the Tribunal finds that pursuant to sections 1243A(1) and 900AZZA(3) of the Social Security Act 1991, Ms Sonia Therese Warby is not entitled to receive arrears of Family Tax Payment for the period 16 July 1998 to 17 June 1999. Family Tax Payment can only be paid to Ms Warby from the date of her application on 29 June 1999.

I certify that the preceding 60 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  7 September 2000
Date of Decision  5 December 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Mr B Slattery
Counsel for the Respondent    N/A
Solicitor for the Respondent    Self-Represented