Warren and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 936

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 936

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2573

GENERAL ADMINSTRATIVE DIVISION  DIVISION		)
Re		Joyce Warren

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 October 2008

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED.  

....................[sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

SOCIAL SECURITY – suspension and subsequent cancellation of Aged Pension – whether discretion should be used – decision under review affirmed.

…

LEGISLATION

Social Security (Administration) Act 1999 – s.81

REASONS FOR DECISION

15 October 2008 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision. 

I certify that this and the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ................[sgd].....................................................................
  Associate

Date/s of Hearing  15 October 2008
Date of Decision  15 October 2008 
Appearing for the Applicant      Maxwell Warren   
Solicitor for the Respondent     Glenda Heggen

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:   Pursuant to an application made 11 June 2008, the Applicant seeks a review of a decision by a Social Security Appeals Tribunal made 7 May 2008 affirming a prior determination by the Respondent that cancelled the Applicant’s payment of aged pension with effect from 1 June 2006:  that event taking place after the said pension had been suspended on 2 March 2006.

The pension was actually not reinstated until 2 May 2007 when the Applicant’s then nominee, Mr Graeme Warren, made a new claim for pension. The decision taken to both suspend and then later cancel payment of aged pension was made pursuant to subsection (1) of section 81 of the Social Security (Administration) Act 1999, which states inter alia that:

If a person, who is receiving a Social Security payment, has been given:

(1) (a)       notice under section 67 or 68 that requires the person to give             the department a statement, and

(b)      the person does not comply with the requirement of the notice;

the secretary may determine that the payment is to be cancelled or suspended.

Although there were issues before the Social Security Appeals Tribunal as to the receipt by the Applicant of notices sent to her under the Social Security Act, I am satisfied that she did in fact receive the notices as they were forwarded to the last known address held by Centrelink of the Applicant and her son, Mr Max Warren, who appeared for her today, said that he was living at the same premises to which the notices had been directed and the letters, although received, were neglected.

There also appears from what was said to the Social Security Appeals Tribunal that another son of the applicant, a Mr Graeme Warren, became aware sometime in September 2006 that the Applicant’s aged pension was not being paid, however, it would appear he didn’t do anything about that and I was told from the bar table today that at the time Mr Graeme Warren was depressed, he had his own particular legal problems to deal with and it was quite likely that, and I make the finding that the full effect of the notices wouldn’t have been apparent to him.

At document T45 of the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a report from a Dr Kirby, which states inter alia that that doctor took over the medical care of the applicant when she was admitted to North Haven Nursing Home in 2004 and at that time she had a long part history of psychiatric disease with a recent increase in need for assistance due to dementia.

Dr Kirby expresses the view that the Applicant would have been unable to complete the forms forwarded to her by Centrelink and one can assume, for the purpose of these proceedings, that that is totally correct. The situation is, however, that the Applicant asks that the tribunal, standing in the shoes of the original decision maker, exercise the discretion that resides in subsection (1) of section 81 of the Social Security (Administration) Act, namely that, in this case, to exercise a discretion not to cancel or suspend the pension.

I decline to act on that discretion.  It seems to me that although the Applicant herself would have been unable to action the documents sent to her, they were sent to her last known address.  We know that they arrived at the address, and failure for her to attend to them was brought about because her son, who resided at that address, failed to take any action himself regarding the Centrelink letters. In these circumstances and there being no contact with Centrelink at all it seems to me that it was quite proper for Centrelink to first suspend and then cancel the payment, consequently the decision under review is affirmed.

END OF EXTRACT