Weir and Secretary, Department of Family and Community Services

[2004] AATA 1416

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1416

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/842

Nº V2004/843

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROBERT WEIR AND

MARGARET WEIR

Applicants

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             24 December 2004

Place:            Melbourne

Decision:      The Tribunal affirms the decisions under review.         

(sgd) Regina Perton
  Member

SOCIAL SECURITY – Newstart allowance – age pension – underpayment – Centrelink error ‑ review sought more than 13 weeks after error – payment of arrears – 13 week limit – lack of discretion – decision affirmed.    

Social Security Act 1991 ss 55, 643, 1064, 1068

Social Security (Administration) Act1999 ss 78, 79, 109

REASONS FOR DECISION

24 December 2004  Regina Perton, Member

1.      This is an application by Robert Weir and Margaret Weir (the applicants) for review of two decisions of the Social Security Appeals Tribunal (SSAT) dated 17 June 2004.  The SSAT affirmed the decisions of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 16 February 2004 as varied by an authorised review officer (ARO) on 22 April 2004.  The SSAT decided that Mr and Mrs Weir had been underpaid newstart allowance (NSA) and age pension (AP) respectively and determined that each of them was entitled to payment of arrears due to the underpayment.  The SSAT decided that Mr Weir was entitled to arrears of NSA from 13 September 2003 to 24 October 2003 and 22 November 2003 to 15 February 2004.  The SSAT also decided that Mrs Weir was entitled to arrears of AP from 26 April 2003 to 15 February 2004.

2.      At the hearing on 9 November 2004, the applicants represented themselves.  Ms K. Paul, a Centrelink advocate, represented the respondent.  

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975, T1 to T38 (T‑documents).

BACKGROUND

4.      Mrs Weir, who was born on 22 June 1940, receives AP.  In a letter dated 5 June 2002, Centrelink advised her that her rate of AP was based on her husband’s and her combined income of $750.00 per annum.  On 10 December 2002, a telephone call was made to Centrelink in which the caller asked about the impact on Mrs Weir’s AP if she were to commence work as a part‑time cleaner at the rate of $120 per fortnight.  A Centrelink officer made a computer entry on 10 December 2002 which mistakenly recorded that Mrs Weir was actually earning that income.  Despite that entry, Mrs Weir continued to be paid the maximum allowable AP for a person in her situation until 31 March 2003.  On 31 March 2003, Mrs Weir informed Centrelink that she had been granted a small pension from the United Kingdom (UK).  Centrelink wrote to Mrs Weir on 31 March 2003 advising her that her rate of AP would be reduced by approximately $3.00 per fortnight.  The letter also advised her that her rate of pension was based on her and her husband’s a combined annual income of $7,958.16.  She was also advised to contact Centrelink if the combined income increased.

5.      Mr Weir, who was born on 5 August 1941, was granted NSA payments from 1 May 2003.  This was 14 weeks after he lodged his claim, due to a 13 week Liquid Assets Waiting Period and the standard one week waiting period.  Centrelink wrote to Mr Weir on 1 May 2003 to advise him that he was to receive NSA from that date.  He was informed that the rate of NSA was based on his and his wife’s combined fortnightly income of $136.37 and that he should contact Centrelink if their combined income increases.

6.      Centrelink sent further letters to Mr Weir on 9 May 2003, 23 May 2003, 6 June 2003, 4 July 2003, 18 July 2003, 1 August 2003, 15 August 2003, 8 September 2003, 7 November 2003, 21 November 2003, 27 January 2004 and 30 January 2004; in which the applicants’ combined fortnightly income being used to calculate his NSA was given as $136.37.

7.      Centrelink’s letters to Mrs Weir were less frequent.  On 1 May 2003, 1 August 2003, 3 November 2003 and 2 February 2004, Centrelink sent letters to Mrs Weir regarding the exchange rate it used to convert her UK pension to Australian currency.  No mention was made in the letters about the combined income used to calculate her rate of AP, nor was she advised of any adjustment to the rate. 

8.      On 9 February 2004, Mr Weir contacted Centrelink stating that he did not agree with the income attributed to him in Centrelink’s correspondence.  On 13 February 2004, Centrelink sent a further letter to Mr Weir in which the combined fortnightly income was again listed as $136.37.  On 16 February 2004, Mr Weir attended Centrelink’s office and was advised that his records showed he earned $120 per fortnight as a cleaner.  Mr Weir informed the Centrelink officer that he had never worked as such and complained that he had previously queried the earnings attributed to him.  Centrelink recorded his fortnightly income as $16.37 in its next letter to him dated 25 February 2004 and increased the rate of NSA from 16 February 2004. 

9.      On 25 February 2004 Centrelink also wrote to Mrs Weir advising her of an increase in her rate of AP from 16 February 2004 and recorded an annual income of $3,459.58.  Mr and Mrs Weir were not paid arrears for the income foregone prior to 16 February 2004, despite Centrelink’s acknowledgement of its error.

10.     Mr and Mrs Weir sought reconsideration of the decisions that they were not entitled to payments of further arrears.  On 22 April 2004, an ARO varied the delegate’s decisions.  The ARO undertook a comprehensive analysis of the correspondence sent to each of the applicants on and after 10 December 2002.  He found that Mr Weir was not entitled to arrears of NSA for the period from 1 May 2003 to 12 September 2003 or 25 October 2003 to 21 November 2003 but was entitled to arrears for the periods between 13 September 2003 to 24 October 2003 and 22 November 2003 to 15 February 2004.  The ARO found that Mrs Weir was entitled to arrears from 26 April 2003 to 15 February 2004.

11.     On 29 April 2004, Mr and Mrs Weir applied to the SSAT for review of the decisions not to pay them arrears for all underpayments between 10 December 2002 and 15 February 2004.  On 17 June 2004, the SSAT affirmed the decisions as varied by the ARO.  An application for review with this Tribunal was lodged on 19 July 2004. 

12.     The issue before the Tribunal is whether the applicants are entitled to arrears for NSA and AP for the entire period during which Centrelink’s records of their income were incorrect.  

EVIDENCE

13.     The applicants presented their evidence concurrently.  Mr Weir told the Tribunal that he applied for NSA after trying unsuccessfully to run his own business.  He said that, at Centrelink’s request, he provided it with documentation prepared by his accountant showing the assets and earnings of the business.  He said that when he discovered that Centrelink assessed his income at $136 per fortnight he was surprised but accepted Centrelink’s calculation.  He stated that he continued to be uneasy about the figure used by Centrelink for his and his wife’s combined income, and towards the end of the year he went to see his accountant who confirmed that Centrelink’s figure was wrong.  Mr Weir said that when he contacted Centrelink by telephone, in early February 2004, he was informed that his income included $120 per fortnight in wages.  However, on attending the Centrelink office he was advised that the $120 per fortnight was from his wife’s wages.  He said that his wife had not commenced a cleaning job in December 2002; and was adamant that neither he nor his wife had contacted Centrelink about the possibility of her doing so.

14.     Mrs Weir said that she had spoken to a friend who cleaned homes and who canvassed whether Mrs Weir might like to do so as well.  She said that she had not contacted Centrelink about the possibility of working, but speculated that perhaps her friend had done so.  

15.     Mr and Mrs Weir told the Tribunal about their experiences in seeking redress for Centrelink’s error.  Mr Weir was critical of Centrelink for not directly asking him about his and his wife’s income when he applied for NSA.  Mr Weir said it was unfair that they should have to miss out on income for something that was not their fault.

CONSIDERATION OF THE ISSUES

16. Sections 55 and 1064 of the Social Security Act 1991 (the Act) set out the rate of AP to which a person is entitled. Sections 643 and 1068 of the Act set out the rate of NSA to which a person is entitled. These sections provide that a person’s income, and that of their partner, will affect the rate of pension. Under s 8(1) of the Act income includes wages and funds generated from investments.

17.     The respondent conceded that Mrs Weir’s income was incorrectly recorded from 10 December 2002 to 16 February 2004 in that she was not earning the additional $120 per fortnight attributed to her.   

18. Section 109 of the Social Security (Administration) Act 1999 (the Administration Act) provides time limits and differing outcomes where a favourable decision is made after review is sought by persons affected by Centrelink decisions. Section 109 provides as follows:

109.(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.

109.(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.

109.(3)  If:

(a)a decision (the original decision) is made in relation to a person’s social security payment; and

(b)the person is not given notice of the original decision; and

(c)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.

109.(4)  If:

(a)a decision (the original decision) is made in relation to a person’s social security payment; and

(b)the person is given a notice informing him or her of the original decision; and

(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d)as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

109.(5)  If:

(a)a decision (the original decision) is made in relation to a person’s social security payment; and

(b)the person is given a notice informing him or her of the original decision; and

(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;

the favourable determination takes effect on the day on which the review was begun by the Secretary.

19.     Mr and Mrs Weir had a number of changes to their rate of pension during the period in which Centrelink used the incorrect combined income to determine the amounts to be paid to each.  Each time Centrelink notifies a person of a change in the rate of pension, it is a decision in relation to a social security payment.  

20.     Each time the rate of AP or NSA was changed, it was decision in relation to a social security payment.  Whenever Centrelink sent Mr Weir or Mrs Weir a letter informing them of a change in rate of payment, he or she was given a notice informing him or her of the original decision. 

21.     Mrs Weir was on AP on and before 10 December 2002 when Centrelink created the incorrect record.  However, Centrelink did not change her rate of payment until 31 March 2003.  The Tribunal is satisfied that Mrs Weir was paid her full entitlement up to and including 30 March 2003.  Centrelink notified Mrs Weir of the amount she was to be paid from that date by letter dated 31 March 2003.  That letter constituted notification of a decision by the respondent.  Mrs Weir did not seek review of that decision until 16 February 2004, more than 13 weeks after the decision.  She is therefore not entitled to arrears while her pension remained at that level, namely from 31 March 2003 to 25 April 2003.  Mrs Weir’s rate of pension changed on 26 April 2003 but she did not receive a letter advising her of the change.  The only letters she received from Centrelink during that period concerned the exchange rate of her UK pension.  Therefore, while the respondent made a decision on 26 April 2003 to change her pension entitlement, it did not notify her of the decision.   As Mrs Weir was not notified of the decision, she is not penalised by the 13 week rule.  Therefore, she is entitled to payment of arrears from 26 April 2003 to 15 February 2004.

22.     Mr Weir’s circumstances differ from his wife’s, in that he received notification of the respondent’s decisions more regularly.  Mr Weir first received NSA on 1 May 2003 and Centrelink sent him a letter 9 May 2003 as to the rate of payment, the income level used to determine it and his right to challenge the decision if he believed it to be incorrect.  Hence, on 9 May 2003, the respondent notified Mr Weir of its decision but Mr Weir did not seek review of that decision until 16 February 2004, which was more than 13 weeks after the decision.   On 23 May 2003, Mr Weir was again informed of his fortnightly rate of NSA.  This constituted notification of a fresh decision by the respondent.  On 6 June 2003, Mr Weir was notified that his NSA payment would be $309.43, which was a notification of another decision by the respondent. 

23.     The ARO undertook a comprehensive analysis of the decisions made in relation to Mr Weir’s rate of payment and when or whether he was notified of each change.  The dates upon which Centrelink sent letters to Mr Weir are set out in paragraph 6 above.  The Tribunal has checked the documentation provided by Centrelink in the T‑documents.  The Tribunal’s findings on the dates of decisions and notification are identical to that of the ARO.  Rather than duplicating the pages of detailed analysis by the ARO in these Reasons for Decision, the Tribunal adopts the ARO’s findings in relation to whether Mr Weir applied for review of the respondent’s decisions within 13 weeks of the decisions.  Accordingly, the Tribunal finds that Mr Weir was not entitled to arrears of NSA for the period from 1 May 2003 to 12 September 2003 or 25 October 2003 to 21 November 2003, but was entitled to arrears for the periods between 13 September 2003 to 24 October 2003 and 22 November 2003 to 15 February 2004. 

24.      The Tribunal has no option but to affirm the decisions under review as it does not have the authority to overrule the legislative requirement that review must be sought within 13 weeks of a decision for a person to be entitled to be paid arrears; even where, as in this case, the original error was Centrelink’s. 

DECISION

25.     The Tribunal affirms the decisions under review. 

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  9 November 2004

Date of decision:  24 December 2004
Advocate for applicants:              Self‑represented
Advocate for respondent:            Ms K. Paul, Centrelink