WILLIAM PICKNELL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 102

[2012] AATA  102

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/3158
Re	WILLIAM PICKNELL
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	M D Allen, Senior Member
Date	19 January 2012
Date of written reasons	21 February 2012
Place	Taree Local Court

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

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

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY - calculation of rate of age pension payable - correct amount of pension bonus paid - decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975, s43(2A)

Social Security Act 1991

Cases

Secondary Materials

REASONS FOR DECISION

M D Allen, Senior Member

21 February 2012

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

2. The oral reasons for decision were set out in the course of the hearing of this matter and have been transcribed by Auscript, the Commonwealth Reporting Service.

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

   I certify that these and the following paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

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

   Associate

   Date of Hearing  19 January 2012 

   Date of Decision  19 January 2012

   Date of Written Reasons  21 February 2012

   Representative for the Applicant        Self

   Representative for the Respondent     Centrelink Legal Services

   EXTRACT OF TRANSCRIPT PROCEEDINGS

   MR ALLEN:   Now, Mr Picknell, you’re appearing on your own behalf; is that so?

   MR W. PICKNELL:   I am, yes.

   MR ALLEN:   Ms Mantaring, you’re for the respondent.

   MS S. MANTARING:   Yes, sir.

   MR ALLEN:   At the start, Mr Picknell, you have got this – there are two rather large bundles. 

   MR PICKNELL:   I have got more than two.

   MR ALLEN:   Yes.  Very well.  Well, I will take those in as tribunal documents.  They commence as T1 to T22 and on my addition that is 170 pages.  Then there are supplementary documents which are indexed as ST1 to ST25, and that particular bundle continues the numbering and goes to page 287.  You should also have by now, Mr Picknell, a document which is headed, Secretary’s Statement of Facts and Contentions;  is that so? 

   MR PICKNELL:   That’s right, yes.

   MR ALLEN:   Well, I’m taking that in as an exhibit.  It is exhibit R1, the respondent’s statement of facts, issues and contentions.

   MR ALLEN:   Very well.  I take you have read that particular document.

   MR PICKNELL:   I have. 

   MR ALLEN:   And you have also, no doubt, read the decision of the Social Security Appeals Tribunal.

   MR PICKNELL:   What date was that one?

   MR ALLEN:   Right.  If you go to the T documents, the first big bundle, and if you go through – if you look at the – the pagination is on the bottom right-hand corner, page 3.  In fact page 4, sorry.  You’re probably better of going to page 6.

   MS MANTARING:   Six, yes.

   MR PICKNELL:   Yes.

   MR ALLEN:   You have got that?

   MR PICKNELL:   Yes, I have.

   MR ALLEN:   And I take it you have read it at some stage.

   MR PICKNELL:   Yes.

   MR ALLEN:   So you know basically what all this is about.

   MR PICKNELL:   That’s right.

   MR ALLEN:   Very well, then.  Well, I think we will get you probably to give some evidence and then with your evidence, and you can tell me why you say that decision is wrong. 

   MR PICKNELL:   Well, Mr Allen, I made a submission on the advice of the solicitor that the tribunal got to talk to me.  I submitted a compensation claim to Centrelink and all my thoughts are in that document.  Have you got that document?

   MR ALLEN:   I don’t seem to have it, unless – Ms Mantaring, do you know of it? 

   MS MANTARING:   No, sir.  It’s compensation for detriment costs by defective administration which is not ---

   MR ALLEN:   Part of this.

   MS MANTARING:   --- part of this.  And my instructions are they are separate undertakings. 

   MR ALLEN:   Right. 

   MS MANTARING:   So if he chooses to provide the information then Mr Picknell will have to provide it to you. 

   MR ALLEN:   Well, have I got – have you sent a copy to the Administrative Appeals Tribunal. 

   MR PICKNELL:   I thought I did.  I have got a copy here. 

   MR ALLEN:   Good.  If I could look at that copy, please.

   MR PICKNELL:   Yes.  That’s the supporting document and that’s the original application.  If you would like to show that Mr Allen.  And that was attached as part of it.  

   MR ALLEN:   Thank you.  If you will just bear with me I will read this.  Ms Mantaring, have you seen these documents? 

   MS MANTARING:   No, sir.

   MR ALLEN:   All right.  I will pass them down to you. 

   MS MANTARING:   I looked at the previous notes in relation to that, sir, and by May 2011 the claim was rejected.

   MR ALLEN:   Yes.  I could see that there.  Alright.  Perhaps you don’t really need to see those at the moment. 

   MS MANTARING:   No.

   MR ALLEN:   Mr Picknell, I have read all that but – and I can see where you’re coming from entirely.  But what I need to know is in the proceedings before me how can you demonstrate that Centrelink was wrong? 

   MR PICKNELL:   Well, Mr Allen, I don’t know what you mean by that.  I mean, my whole problem with Centrelink is that they just didn’t give me any guidance whatsoever.  And why would I, as a sane person, you know, sort of elect to take a small amount of money when I had 30,000 odd due to me?  Which I had earned by working for an extra five and a half years.  I was given no guidance whatsoever, and yet at a very early stage Centrelink knew what was in my documents.  And yet at a further interview when I submitted on retirement – when I wanted to retire, I submitted all that and was still given no guidance.  And I wouldn’t have gone ahead, I had no reason to go ahead. 

   MR ALLEN: I understand that, but I’ve got a problem that the facts fell out as they did and although you’ve claimed for deficient administration, that’s a separate claim which isn’t before me, in fact, I’ve got no powers or authority under the Social Security Act to investigate that.

   MR PICKNELL:   Well, I was never told that, never ever been told that.

   MS MANTARING:   Sir, may I just --- 

   MR PICKNELL:   So why are we meeting?

   MR ALLEN:   Yes.  Yes, Ms Mantaring.

   MS MANTARING:   Yes.  The notes said in May 2011 a rejection letter has gone out, and the rejection letter would have said if he was not satisfied with the response he can take it to the Commonwealth Ombudsman.

   MR ALLEN:   Right.  Have you got that?

   MR PICKNELL:   But I was – yes, I understand that.  But I was already in this system, and I received several phone calls from the Administrative Tribunal people asking, you know, what was happening, and I said, well, I’ve – as guided by the solicitor I put in the compensation claim as the solicitor, that you people got me to talk to, advised me to do, and we were awaiting the outcome.  Now, that went in in December year before last.

   MR ALLEN:   Yes.

   MR PICKNELL:   And it was ---

   MR ALLEN:   Rejected.

   MR PICKNELL:   --- May or something before I got a result.  And then I got a phone call while I was in Western Australia from a person from this tribunal asking, and I got a letter to say that I was having the hearing in May, which – I wasn’t even in the state, didn’t even know about it.  The letter was there when I got back home and this meeting was arranged as a result of that.  I mean, I’ve had no guidance to say that it’s all wrong, I mean, who do I – you know, I mean --- 

   MR ALLEN:   But you spoke to a solicitor, did you not?

   MR PICKNELL:   Yes, yes.  This tribunal arranged a solicitor for me.

   MR ALLEN:   And what – I mean, I - yes.  I can’t ask you what he told you because that’s confidential.

   MR PICKNELL:   It was a she, it was a lady.

   MR ALLEN:   Yes, because that’s confidential between you and that solicitor.  But let me ask you in only a broad sense, did she give you any advice about how to continue with this application?

   MR PICKNELL:   The only advice I got was to do this compensation claim at that stage, yes.

   MR ALLEN:   Yes.  Well, see unfortunately you’re getting caught up in the thickets of the law at the moment.

   MR PICKNELL:   Yes, well, I don’t understand the law.  All I know is that I’ve never got any help whatsoever in submitting my claim from Centrelink and that’s my whole argument.

   MR ALLEN:   Yes.  And what I need to know is you’ve read the decision of the Social Security Appeals Tribunal?

   MR PICKNELL:   I have, yes.

   MR ALLEN:   Why do you say it’s wrong?

   MR PICKNELL:   I’m not saying that’s wrong.

   MR ALLEN:   But that’s the matter which is before me today.

   MR PICKNELL:   Well, yes, but also as part of it, there was a statement to say that they believed Centrelink hadn’t given me the right information.

   MR ALLEN:   Look, I - yes.  So they did, and therefore on the advice of the solicitor you put in a claim for defective administration.

   MR PICKNELL:   That’s right, yes.

   MR ALLEN:   That claim has been rejected.

   MR PICKNELL:   By Centrelink, yes.

   MR ALLEN:   And they’ve advised you, if you are dissatisfied, that you may take it up with the Commonwealth Ombudsman.

   MR PICKNELL:   Yes, I understand that.  But at that stage I was still in this system.

   MR ALLEN:    But can you not realise that this system is different?

   MR PICKNELL:   No, I’m sorry.  No.  I was never told it was any different.  I was told that, you know, that basically this is my avenue of appeal.

   MR ALLEN:   Well, you have an avenue of appeal because to the AAT you can appeal the decision of the Social Security Appeals Tribunal.  And if you’re going to do that, and that’s why you’re here today, you have got to give me some reasons as to why you say that decision is wrong.

   MR PICKNELL:   Well, my reason is that Centrelink did not give me the required information for me to get my right dues.

   MR ALLEN:   All right.  That may well ---

   MR PICKNELL:   So that’s my reason.

   MR ALLEN:   Yes.  And if I tell you that so far as the facts as they occurred and the law as it follows from the facts make it inevitable that the decision of the Social Security Appeals Tribunal must be upheld. 

   MR PICKNELL:   I understand that.  But we wouldn’t be in this situation whatsoever if I had have been given the correct information at the right time.

   MR ALLEN:   I understand that argument but that is not an argument with which I have any jurisdiction to deal. 

   MR PICKNELL:   Well, I’m sorry.  I was never guided in that direction.

   MR ALLEN:   Yes.  I can’t interfere with that.  The solicitor advised you correctly.  You make a claim for defective administration and then if you’re dissatisfied with the decision on that you make a further application to the Commonwealth Ombudsman. 

   MR PICKNELL:   Okay. 

   MR ALLEN:   My sole duty here, and all I can do, is review the decision of the Social Security Appeals Tribunal.  And from what you tell me you have got no reasons as to why it’s wrong. 

   MR PICKNELL:   Only other than that the Appeals Tribunal would agree with me that I was ---

   MR ALLEN:   Short changed. 

   MR PICKNELL:   --- short changed.  That’s right.  And that’s my whole argument and has been all the way through.  I have never deviated from that.  I have done the right thing all the way through.  I’m the one that worked, paid my taxes and did everything else right.  And, you know, I’m singled out and – my partner wasn’t even getting any pension while this was going on initially. 

   MR ALLEN:   Look, it’s a very unfortunate situation but let me bring you back to this.  What I need to be concerned about is the decision of the Social Security Appeals Tribunal.  And if you have got nothing to put before me to say that given the facts which actually occurred, and the law which is applicable to those facts, that the decision is somehow wrong, then I have got no alternative but to affirm the decision of the SSAT. 

   MR PICKNELL:   Well, I have never said that the decision was wrong in terms of the law.  My only beef is that I was never ever given the opportunity to do the right thing. 

   MR ALLEN:   And so far as that goes it seems to me, you know, I don’t want to be too curt about it, but it comes down – you’re in the wrong tribunal so far as the SSAT is concerned.  The solicitor has given you good advice, you make a claim for defective administration and that’s been rejected, I know.  But now you make a claim to the Commonwealth Ombudsman.  And hopefully you have got some details where to go with that.  Have you?

   MR PICKNELL:   Well, I don’t know.  I mean ---

   MR ALLEN:   Ms Mantaring, have you got anything? 

   MS MANTARING:   It would be in the rejection of the CDDA case worker, sir.

   MR ALLEN:   Right.  So there should be some details there.

   MR PICKNELL:   In that document?

   MR ALLEN:   Yes.  Just – well, can you just show it to Ms Mantaring there.  You will probably know where.  It’s on the back page no doubt.  It’s usually the last.

   MS MANTARING:   The letter from Centrelink about the CDDA claim, back in May 2011.  Yes.  Mr Greg Beecroft would be the caseworker, sir, but I will let him read it.

   MR ALLEN:   Yes. 

   MR PICKNELL:   Yes, there’s a contact number. 

   MS MANTARING:   It has a 1300 number, sir. 

   MR ALLEN:   Fine.  Well, when you get home today you can start ringing that number.  They will tell you to put something in writing, I know that now.  But you can talk to them all about it. 

   MR PICKNELL:   So what I have put in writing to the compensation I just expand on that to the Ombudsman?

   MR ALLEN:   Indeed, yes. 

   MR PICKNELL:   Yes. 

   MR ALLEN:   And that’s the way you go, but as far as this decision here today is, I’m going to affirm it on the bases I can set out now, that there has been nothing put before me in any way to show that the SSAT misunderstood the facts, operated on wrong facts, or made any error of law.  So that it seems the best and preferable decision is their decision. 

   MR PICKNELL:   Okay. 

   MR ALLEN:   I’m sorry that you have had to come in for that but if you can understand sometimes there are just two streams in which to proceed. 

   MR PICKNELL:   Yes, well, there’s just been a complete lack of guidance I can tell you.

   MR ALLEN:   Yes.  Well, with respect ---

   MR PICKNELL:   Mr Allen ---

   MR ALLEN:  --- you did get some guidance from the solicitor.  I think she put you on ---

   MR PICKNELL:   Yes.  Yes.

   MR ALLEN:   --- she put you on the right path with the defective administration.

   MR PICKNELL:   Yes.  No, I’m not denying that.  Yes.  I agree with that.  But I was never told that that was the end of this tribunal.  At no stage have I been told that there was nothing else that this tribunal could do. 

   MR ALLEN:   No, well, perhaps you should have. 

   MR PICKNELL:   And it is right and proper that I can use the comments of the tribunal in relation to ---

   MR ALLEN:   Indeed.  Yes, you use every bit of ammunition you can. 

   MR PICKNELL:   Okay.  Yes.

   MR ALLEN:   All right.  Well, the decision on the review is affirmed.

   MR PICKNELL:   Okay.  Thank you.

   ---END OF TRANSCRIPT--