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

[2007] AATA 1686

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1686

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600392

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOAN WATTS

Applicant

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

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date22 August 2007

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to Bereavement Allowance.  The matter is remitted back to the Department for calculation of the sum due to her.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Bereavement Allowance –bereavement notification day – inadequate enquiry by Departmental officer – higher payment made on first payday after bereavement notification – what is “practicable” in the circumstances of each case – Department on notice of applicant’s entitlement to a police widow’s pension – further steps should have been taken by the Department before altering the pension and thereby potentially prejudicing entitlement to Bereavement Allowance – decision set aside

Social Security Act 1991 ss 21(2), 82(1), 84

REASONS FOR DECISION

22 August 2007   Senior Member L Hastwell

1.      Mrs Joan Watts (the applicant) was widowed on 20 May 2006.  She went to Centrelink on 29 May 2006 to advise of her husband’s death. 

2.      The applicant contends that on that first visit, she advised the officer that she spoke to that she had an entitlement to a police widow’s pension (PWP), but that she was not yet certain as to the rate at which it would be paid.  When advised of her ongoing rate of pension entitlement by the counter officer, she queried the rate that she was told would be payable to her.  The officer insisted that that would be the rate payable and that everything would be adjusted in August of that year.

3.      The pension payment made to her on the first payday after this first contact with Centrelink, being 1 June 2006, was $414.60 which was a rate higher than the combined rate that she and her husband had been receiving prior to his death.  As a consequence, she was found to have no entitlement to a Bereavement Allowance. 

4.      The applicant advised Centrelink of the rate of her PWP shortly thereafter and as soon as she received this information, a decision was then made that the appropriate rate of her Age Pension was a rate less than the combined rate of pension that was payable to the applicant and her husband prior to her husband’s death.

5.      On 13 June 2006, the applicant queried the decision that she was not eligible for Bereavement Allowance.  An Authorised Review Officer considered that decision and confirmed that the decision not to pay a lump sum Bereavement Allowance was correct.  The applicant appealed to the Social Security Appeals Tribunal (the SSAT) and the SSAT affirmed the decision of the Authorised Review Officer on 1 November 2006.  The applicant seeks a review of the decision by this Tribunal.

legislation

6.      The Bereavement Allowance is provided for under the Social Security Act 1991 (the Act).  Section 82(1) provides as follows:

“82(1)  If:

(a)      a person is receiving an age pension; and

(b)      the person is a member of a couple; and

(c)      the person’s partner dies; and

(d)      immediately before the partner died, the partner:

(i)        was receiving a social security pension; or

(ii)was receiving a service pension or income support supplement;      or

(iii)      was a long-term social security recipient; and

(e)on the person’s payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:

(i)the amount that would otherwise be payable to the person under section 85 (person’s continued rate) on that payday; and

`(ii)       the amount that would otherwise be payable to the person under section 83 (continued payment of partner’s pension or benefit) on the partner’s payday immediately before the first available bereavement adjustment payday;

the person is qualified for payments under this Subdivision to cover the bereavement period.

Note 1:  section 83 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.

Note 2:  section 84 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.”

7.      Section 84 of the Act provides that a lump sum is payable in certain circumstances.  It states:

“84  Lump sum payable in some circumstances

If:

(a)a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and

(b)the first available bereavement adjustment payday occurs before the end of the bereavement period;

there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.”

8.      Section 21(2) of the Act provides the following definitions:

“21(2)  For the purposes of this Act, if a person dies:

(a)the bereavement period in relation to the person’s death is the period of 14 weeks that starts on the day on which the person dies; and

(b)the bereavement notification day in relation to the person’s death is the day on which the Secretary becomes aware of the death; and

(c)the first available bereavement adjustment payday in relation to the person’s death is the first payday of the person after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person’s death; and

…”

issue

9.      The issue to be determined is whether the applicant is entitled to a lump sum Bereavement Allowance, pursuant to s 84 of the Act, in relation to the death of her husband.  In considering that issue, the Tribunal must determine what the bereavement adjustment payday was in this case.

background

10.     The following facts are not disputed:

·The applicant’s husband died on 20 May 2006.

·The applicant went into Centrelink to notify of his death on 29 May 2006.  This is termed the bereavement notification day pursuant to the Act.

·The applicant advised of her entitlement to a PWP on that day, but was unable to advise the likely rate of her PWP.

·Centrelink immediately assessed the applicant’s entitlement to Age Pension as being at a rate higher than the combined rate that she and her husband were receiving prior to his death.  The first pay day of the increased rate of pension was 1 June 2006. 

·On 5 June 2006 the applicant attended at Centrelink and provided them with a letter from the Police Office of Superannuation Scheme advising of her rate of PWP.  As a result, a further adjustment was made to her pension entitlement and it was reduced to a rate that was less than the combined rate of pension previously payable to her and her husband.  The lower rate was paid to her on the second payday after the bereavement notification date.

the hearing

11.     The applicant was represented by her local Member of Parliament, Mr Piccolo.  The respondent (the Department) was represented by Ms Jo Kitto.  A senior practitioner from the Department, Mr Joe Gareffa, was called to give evidence for the Department. 

12. The documents received under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibit R1.

13.     The applicant told the Tribunal that her husband died after a long period of illness and as soon as possible after dealing with the funeral she went to Centrelink to advise of his death on 29 May 2006.

14.     She recalls that she spoke to a woman by the name of “Sue”.  She had not made a prior appointment and she attended at the counter and waited her turn.  She then had a relatively brief conversation with this woman at the counter.  She advised her of her husband’s death.  The counter officer advised her of the likely rate of pension that she would now receive.  The applicant was convinced the figure given to her was too high and she told the officer in question that she was now eligible for a PWP and that she was confident that the proposed rate was wrong.  The Centrelink officer told her that the rate would be adjusted in August, that she would receive a form in August and her Age Pension rate would then be modified.  The applicant estimated that the conversation was somewhere between 5 and 10 minutes

15.     On the following day, two people from the Police Superannuation Scheme came to visit the applicant at her home and advised her of what her rate of PWP would be.  They then sent her a follow up letter confirming her entitlement.  She had by then received the follow up letter from Centrelink telling her that she must advise any changes to her situation within 14 days and so she attended at Centrelink once more on 5 June 2006 and advised them of the actual rate of PWP she was going receive.  She asked about her entitlement to Bereavement Allowance and was told that none would be payable to her.

16.     Mr Gareffa was called as a witness for the Department.  He described the process that is usually followed after a notification of bereavement.  He said the information is put into the customer record and the customer is transferred from the married to the single rate of Age Pension for the surviving partner.  He said that if assets were recorded as being in joint names, then 50 percent of the assets would be attributed against the surviving partner.  An internal review is done 16 weeks after the advice is given or when the client comes in and notifies of any change of circumstances.

17.     He expressed the view that if the applicant had notified the likelihood of her receiving a PWP on 29 May 2006, then the officer in the normal course would make  immediate further inquiry and should have accessed the deceased’s information to ascertain the likely or approximate rate of PWP.  He said that if he was handling the matter he would have booked a person in the applicant’s position in for a more detailed interview.

discussion of the evidence

18.     The Tribunal had regard to the T documents and to all the evidence provided.  The Tribunal was advised that the counter officer who first saw the applicant on 29 May 2006 is on a return to work program after being on stress leave and that it would be too stressful for her give evidence as to her recall of what occurred on the day that she saw the applicant. 

19.     The Tribunal has no reason to disbelieve the applicant’s recollection of what occurred on the day.  She has been consistent in her evidence throughout.  She was mindful of the need to ensure that Centrelink had correct information about her financial situation as soon as possible after her husband’s death.  In a letter sent to the ARO at the end of July 2006 (T11), she explains quite clearly the same sequence of events that she described when giving evidence. 

20.     Some issue was made by the Departmental representative of the fact that the applicant’s recall was that the counter officer was called “Sue”.  The Department contended (with no evidence adduced) that was not her name and that this flawed the applicant’s evidence.  The Tribunal does not accept this submission.  The applicant may have been mistaken as to name, but she remained entirely consistent as to what occurred at that first interview.

findings of fact

21.     The Tribunal makes the findings set out in paragraph 10 of these reasons and further makes the following findings:

·When the applicant attended at a Centrelink on 29 May 2006 to notify of her husband’s death she told the counter officer about her entitlement to  a PWP,

·The counter officer made no attempt to ascertain the likely rate of the PWP in accordance with usual procedure, nor did she make any arrangement for a further interview to take place.

·On 29 May 2006, when advised of her new Age Pension rate, the applicant queried the rate and told the counter officer that it was incorrect and too high.  The counter officer’s response was that everything would be sorted out in August.

·The counter officer had available to her information about the deceased’s rate of PWP and she could have chosen to access that information and explore more fully the applicant’s likely entitlements to PWP before adjusting the applicant’s Age Pension rate.

·On the first payday after the notification of the death of her husband the applicant’s entitlement to Age Pension was to a rate that was less than the combined rate payable to herself and her husband immediately before his death due to her entitlement to PWP.

·On the first payday after the notification of the death of her husband, the rate actually paid to her was at a rate higher than the combined rate of pension payable to herself and her husband.

·Payment of the incorrect rate was due to the counter officer on 29 May 2006 failing to make proper enquiries about the applicant’s future sources of income, despite being told by the applicant that the rate of Age Pension that she was proposing be paid to her was wrong.

application of the law

22.     The Tribunal is satisfied that an error was made by a Centrelink officer in this case which has resulted in financial detriment to the applicant.  The officer in question conducted a cursory interview with the applicant and then failed to follow usual procedures whereby further enquiry should have been made about the applicant’s entitlements to a PWP once the officer was alerted to it.  The officer should have been aware of the potentially adverse effect on the applicant’s entitlement to a Bereavement Allowance when she adjusted her Age Pension wrongly to a higher rate on the next payday.

23.       She did not follow up on information given to her by the applicant at that initial interview which would have established that the applicant was entitled to a lesser rate of pension than the combined rate of pension that she and her husband had previously been receiving prior to his death.  She ignored the applicant’s own advice to her that she was definitely not entitled to the rate of Age Pension that the counter officer told her she was entitled to.

24.     The legislation is set up such that the bereavement period is a period of 14 weeks that starts on the day on which the person dies and this is defined under s 21(2)(a) of the Act.  The bereavement period in this case was a period commencing on 20 May 2006 and continuing for 14 weeks from that date.

25.     The bereavement notification day in this case was 29 May 2006, being the day on which Centrelink was notified of the death.

26.     Section 82(1)(e) of the Act provides that in some instances a Bereavement Allowance is payable to the partner (in this case wife) of the deceased:

“82(1)  If:

…

(e) on the person’s payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:

(i)the amount that would otherwise be payable to the person under section 85 (person’s continued rate) on that payday; and

`(ii)       the amount that would otherwise be payable to the person under section 83 (continued payment of partner’s pension or benefit) on the partner’s payday immediately before the first available bereavement adjustment payday;

the person is qualified for payments under this Subdivision to cover the bereavement period.”

27.     It is common ground that the applicant meets s 82(1)(a) to (d) inclusive.  The issue for the Tribunal to determine is whether s 82(1)(e) precludes her from receipt of a Bereavement Allowance in that if the bereavement adjustment payday is 1 June 2006, then on that date the applicant was paid a higher rate of Age pension than the sum that she and her husband had been receiving prior to his death. 

28.     The Department and the SSAT have both determined that the first available bereavement adjustment payday was 1 June 2006, being the first payday after the notification of the applicant’s husband’s death, and that on that date as her survivors rate was higher than the combined rate of pension received by her and her husband, then she is automatically precluded from a Bereavement Allowance.

29.     The definition of bereavement adjustment payday includes the concept of the first payday after notification of death “for which it is practicable to terminate or adjust payments under this Act …”.  It is not defined simply as the first payday after notification.  The qualification in the legislation tacitly acknowledges that the first payday may not be the first practicable payday to adjust entitlements.

30.     The Macquarie Dictionary defines “practicable” in the following terms:

“capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible.”

31.     The concept of the first practicable occasion arises regularly in the criminal law.  An issue commonly considered by a Judge when sentencing is what was the first practicable date on which a person could enter a plea of guilty and it is generally considered to be the first date after an accused person has sufficient information and advice as to their legal position and as to the facts alleged against them that it is appropriate that they enter a plea.  This is certainly not always the first court appearance after a person has been charged.  The word practicable has meaning and is not to be overlooked in interpreting legislation.

32.     It is the Tribunal’s view that as soon as the counter officer was alerted to the applicant’s entitlement to a PWP by the applicant and certainly as soon as the applicant remonstrated with her and told her that she was quoting an incorrect rate of pension and that the proposed rate was too high, it was not “practicable” for the adjustment of pension rate to occur until the Department had made further inquiries.  There was a risk that if they did not proceed with prudence at that point that the applicant may be significantly financially prejudiced by an incorrect higher rate being paid.

33.     In the circumstances the Tribunal is of the view that the first practicable payday was the payday after the Department had made some enquiry about her correct rate of PWP and in this case the first payday after the applicant had provided the Department with the correct information about her specific entitlements to the PWP, which was first payday after 5 June 2006.  

34.     Her adjusted rate of Age Pension was reduced on that next available payday (being the second payday after the notification of bereavement) to a figure lower than the combined sum that she and her husband were receiving prior to his death.  In the circumstances it is the Tribunal’s view that the applicant is entitled to payment of Bereavement Allowance.

35.     What is “practicable” is something to be determined on the facts of each individual case.  The Tribunal is satisfied that in this particular case, once the applicant provided the information about her PWP to the counter officer and then disagreed with the proposed “higher” rate of payment, the Department was on notice that is was not “practicable” for it to adjust the Age Pension rate until it had made further enquiries.  This may heave involved accessing the deceased’s information and making a phone call to the police pension fund.  It may have involved making a further appointment for the applicant to come in for an interview and bring with her at that time the evidence of her new rate.  By incorrectly paying the higher rate on the next payday, the applicant was potentially losing a significant entitlement.

36.     The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to Bereavement Allowance.  The matter is remitted back to the Department for calculation of the sum due to her.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........J Coulthard............................................
  Associate

Date of Hearing  25 June 2007
Date of Decision  22 August 2007
Advocate for the Applicant       Mr A Piccolo MP

Advocate for the Respondent   Ms J Kitto

Centrelink Legal Services Branch