Wilkinson and Secretary, Department of Family and Community Services

[2002] AATA 1237

DECISION AND REASONS FOR DECISION [2002] AATA 1237

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/312

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      KAREN WILKINSON        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr B J McCabe, Member  

Date29 November 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

.................(Sgnd).................
  Mr B J McCabe
  Member
CATCHWORDS
SOCIAL SECURITY – pensioner education supplement – arrears – benefits paid at rates lower than entitled – application for review by SSAT lodged out of time – substantive merit in applicant's case – whether SSAT properly interpreted and applied provisions relating to time limits in which to seek review

Social Security Act 1991
Social Security (Administration) Act 1999

Austin v Secretary, Department of Family and Community Services [1999] FCA 938

REASONS FOR DECISION

29 November 2002 Mr B J McCabe, Member              

Introduction

1. The applicant, Karen Wilkinson, was in receipt of a Pensioner Education Supplement (PES) from the respondent. PES was paid from 2 February 2000 through until 3 January 2001 at the part time rate. The applicant was studying at the time. Some time later she discovered she was entitled to receive a higher amount because she was doing more study than Centrelink realised. She now wants Centrelink to pay her the full amount she was entitled to receive during the relevant period. The Secretary initially refused to pay any arrears and then relented, agreeing to pay a small amount in respect of the period 7 February –30 June 2000.

2. The Social Security Appeals Tribunal (the SSAT) accepted the substance of Mrs Wilkinson's case and would have allowed the appeal. I agree with that conclusion and adopt the reasoning. But the SSAT went on to find the applicant was prevented from succeeding in her claim because she had not given notice to the SSAT of her intention to appeal within 13 weeks of being notified of the reviewable decision.

3. It follows the question before the Tribunal is whether the SSAT properly interpreted and applied the rule setting out a time limit for appeals. If it did not, then the appeal would be allowed for the reasons set out in the decision of the SSAT and the decision under review would be set aside.
   The Material Before the Tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Ms Wilkinson gave evidence at the hearing, which was held in Lismore. Ms Wilkinson was unrepresented. The Secretary was represented by Ms Wallis-Dunn.
   The Facts

5. Ms Wilkinson was a single parent at the relevant time. She went back to study at Wollongbar TAFE at the beginning of 2000. She was in receipt of a parenting payment from the respondent and she advised Centrelink that she was studying. Her application for PES was approved in March 2000, and the starting date of her entitlement was fixed at 7 February 2000.

6. The applicant was assessed as being eligible to receive the amount paid to individuals who studied at less than 50% of the course load (that is, the rate payable to students who take a half load or less). She was notified of the amount in letters sent to her on 20 June 2000 (document T10), 25 June 2000 (document T11) and 21 August 2000 (document T13). There was also a reference to the amount of the supplement in letters from the respondent dated 6 July 2000 (document T12) and 23 October 2000 (document T14).

7. The applicant did not contact Centrelink to question the amount of her payments until 5 July 2001. After she provided evidence that her workload was heavier than Centrelink thought, she asked the respondent to pay her the money she would have received but for the error. The respondent agreed to pay her an amount in respect of the period up until 30 June 2000, but said the balance (an amount of around $405) could not be paid because Ms Wilkinson had rested on her appeal rights after being notified in the correspondence.

8. Ms Wilkinson says she did not recall receiving any of the letters. She was aware of changes in her level of payment after having studied and received PES before, but she assumed that was attributable to changes in government policy as a result of the introduction of the Goods and Services Tax. She did not think to question the information upon which Centrelink was proceeding.

9. The Secretary says it is ultimately irrelevant whether the applicant received the letters set out in the T documents. She is deemed to have received them and have notice of their contents. If she failed to act on them and exercise her appeal rights within the appropriate time limit, she is now prevented from recovering any money.

10. After considering the decision of Drummond J in Austin v Secretary, Department of Family and Community Services [1999] FCA 938, the SSAT concluded the letters were not as clear as they should have been and held they did not constitute valid notices of the decision. As a result, the 13-week time limit for appeals provided for in s 109 of the Social Security (Administration) Act 1999 (the SSA Act) did not commence on the date any of those notices were given.

11. After reviewing the letters in question and s 109 and the decision in Austin, I agree with the conclusions of the SSAT and adopt its reasoning.

12. An authorised review officer gave a decision on 23 October 2001 but the applicant did not approach the SSAT until 30 January 2001. The SSAT held the applicant's appeal could not succeed because she did not comply with the 13 week time limit set down in s 152 of the SSA Act.
    The Relevant Legislation

13. The SSAT noted that the date the decision is sent to the applicant will be treated as the date of the decision: s 237 SSA Act. It then referred to s 152(4) of the SSA Act which determines when SSAT decisions take effect. The sub-section provides:

    "If:

    (a) a person is given written notice of a decision under the social security law; and

    (b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and

    (c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and

    (d) the effect of the decision of the SSAT is:

    (i)   to grant the person's claim for a social security payment or a concession card; or

    (ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or

    (iii) to increase the rate of the person's social security payment;

    the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision."

1. The SSAT explained in the course of its reasons (at paragraph 36):

   "The effect of this section is that any decision to increase the rate of Ms Wilkinson's PES could have effect from 30 January 2002 only. This in turn means that although Ms Wilkinson has pursued her right of appeal to the SSAT, any arrears to which she is entitled under the sections…cannot be paid."

1. That view of the law is correct. While it is possible to have sympathy for the applicant, the legislation is clear in its wording and effect. She rested on her rights of appeal. That she should do so is surprising given the decision she was challenging before the SSAT was itself made (albeit wrongly, as the SSAT concluded) on the basis that she had failed to follow up on her entitlements with Centrelink.
   Conclusion

2. The objection decision under review is affirmed.

   I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

   Signed:         .............................................................................
     Associate

   Date of Hearing  5 September 2002 (at Lismore)
   Date of Decision  29 November 2002
   The Applicant Appeared in Person
   Solicitor for the Respondent    Ms Wallis-Dunn, Departmental Advocate