Williamson and Secretary, Department of Social Services (Social services second review)

[2024] AATA 3603

Williamson and Secretary, Department of Social Services (Social services second review) [2024] AATA 3603 (10 October 2024)

Division:GENERAL DIVISION

File Number:          2023/5579

Re:David Williamson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member P Ranson

Date:10 October 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution the Tribunal finds Mr Williamson was entitled to Age Pension from 20 September 2019 based on the update of his assets as advised on 27 September 2019 and subsequently.

............[SGD].........

Member P Ranson

Catchwords

SOCIAL SECURITY – Tier 2 review – calculation of age pension – where paid age pension amount contested as being incorrect – where Applicant claims he notified Centrelink within time about change of his financial circumstances – where Applicant under belief that Centrelink gets updated information automatically – Tribunal finding the Applicant did notify Centrelink appropriately about change in his financial circumstances – decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Member P Ranson

10 October 2024

BACKGROUND

1. Mr Williamson is a retiree who has been in receipt of an age pension (AGP) since 2015. His assets at that time included a 50% interest in a property held by his ex-wife and funds with Sunsuper. To receive the correct amount of AGP, the recipient is required to update their income and assets twice a year if there is a change of more than $2,000 occurs.

2. The property settlement with his ex-wife occurred in 2017 and Mr Williamson advised Centrelink he no longer held that interest. Centrelink removed that asset from the list of assets they recorded for him and adjusted his AGP rate accordingly. Until after the hearing when he checked his records, Mr Williamson believed he had requested a check of the rate of pension he received in 2017 when the property was removed. He was adamant he called Centrelink frequently to follow up. Centrelink’s records do not record any phone calls with him from 2017 to 2019.

3. He asked for a review of the decision not to increase his AGP from 2017 and each decision maker found there was no basis to do so including a first review by the Social Security division of the Tribunal. He then applied to the General Division of the Tribunal for a second review of that decision.

4. Mr Williamson said he had transcripts of conversations with Centrelink to prove he had made such an enquiry however only two audio recordings were provided and one of those was blank. The other revealed he updated his assets for the first time since 2016 when he called on 27 September 2019. That recording also revealed his misconception about what information was available and was not available to Centrelink.

5. Centrelink conducts a bi-annual review of AGP, along with other social security payments, on 20 March and 20 September each year. Favourable reviews applied for within 13 weeks of those dates are back dated to the applicable review date.

6. The issue in this case is whether Mr Williamson requested a review of his rate of AGP at a time earlier than his call to Centrelink on 27 September 2019.

7. For the following reasons, the decision under review is set aside and in substitution the Tribunal finds Mr Williamson was entitled to Age Pension from 20 September 2019 based on the update of his assets as advised on 27 September 2019 and subsequently.

   THE LAW

8. The legislation referred to in this decision includes:

   (a)Social Security Act 1991 (the Act); and

   (b)Social Security (Administration) Act 1999 (the Administration Act).

9. The Social Security Guide (the Guide) provides relevant policy information as to how the legislation should be applied for consistency in decision making.

   WHAT HAPPENED?

10. The facts in this case are set out in paragraphs 3 to 17 in the Respondent’s Statement of Facts and Contentions dated 9 February 2024 (SFIC) and will not be repeated here as they are not in dispute.

11. Suffice to say Mr Williamson applied for the AGP on 13 July 2015 which was granted from 6 July 2015. Importantly, his assets included two major items, being his 50% interest in a property with his ex-wife and his superannuation with Sunsuper. The total of his assets at that time of $396,493. The provisions of the income test meant he was deemed at that time to receive investment income of $6,612.

12. Centrelink regularly write to their customers and request them to update their financial information including changes of more than $2,000. They did this for Mr Williamson and the dates are set out in paragraphs 7 and 8 of the SFIC. For AGP, they also write to their customers in March and September each year ahead of the automatic reviews conducted on the 20^th of each of those months.

13. Mr Williamson thought Centrelink would directly receive information about his superannuation and bank balances. He now knows they don’t. Bank balances must be advised by the customer. Sunsuper, like other superannuation funds, provides regular updates of unit prices to be applied to the balance of units held by each customer. It is the responsibility of the customer to advise Centrelink of the number of units held. Because Mr Williamson did not advise Centrelink of the number of units held in the underlying funds within his superannuation fund, the number of units remained the same and Centrelink applied the unit prices as advised by Sunsuper to that number of units.

14. The property settlement with his ex-wife occurred in early 2017 and on 6 March 2017 he advised Centrelink he no longer held a 50% interest in the property and provided evidence of that. They duly updated their records to remove that asset, recorded him as a single pensioner and adjusted the rate of his AGP accordingly.

15. There is then a gap in contact with Centrelink until 27 September 2019 when Mr Williamson called Centrelink concerned about the rate of his AGP. He had received a letter from them advising a reduction in the rate of his AGP and he was at a loss to understand why. He called and updated his assets, and the details of that call are discussed in detail below. That is when he discovered the amount ascribed to his Sunsuper superannuation was still around the level it was in 2016 rather than the reduced amount it had become.

16. He contacted Sunsuper and obtained a statement however it did not contain the numbers of units for each of the underlying funds, so, on 8 November 2019 another call to Centrelink occurred, which identified the need to have a statement showing the number of units. That was done and a small amount of arrears was paid to him.

17. Mr Williamson was perplexed by this because at that time he was still not aware of the requirement to advise Centrelink on a regular basis of the number of units for each underlying fund and the significance of not doing so. For that reason, the letters and notices sent to him over the years fell on infertile ground. He did not make the connection between advising the numbers of units in his superannuation fund, along with movements in the value of his other assets, and the calculation of his AGP.

18. On 20 November 2019, he sought a review of the decision to pay him a small amount of arrears believing it should be backdated to 2017 or a date earlier than 9 October 2019. An Authorised Review Officer (ARO) affirmed the decision finding there was no earlier notification of changes in assets. He then applied to the Social Security division of the Tribunal for a first review of that decision, and it was again affirmed on 21 June 2023 (AAT1).

19. Mr Williamson then applied on 28 July 2023 to the General Division for a second review.

20. Section 109 of the Administration Act deals with the effective date a favourable change of rate can be applied. If a decision is made in relation to a person’s social security payment and a notice is given to the person informing them of the decision and within 13 weeks after the notice is given, the person applies to Centrelink (the Secretary) for a review of the decision and a favourable determination results, the favourable determination takes effect on the day on which the determination embodying the original decision took effect.[1]

    [1] Section 109(1) of the Administration Act.

21. Section 109 goes on to say if Centrelink (the Secretary) decides to increase the rate at which a social security payment is paid because an amount has been indexed or adjusted then each person whose rate of social security payment is affected by the determination is taken to have been given notice of the determination and of the increased rate. The notice is taken to have been given on the day on which the amount was so indexed or adjusted.[2]

    [2] Section 109(7) of the Administration Act.

22. What does this mean for Mr Williamson? As mentioned above, Centrelink (the Secretary) indexes and adjusts the rate of social security benefits (such as AGP) on 20 March and 20 September each year. Mr Williamson contacted Centrelink on 27 September 2019 about the rate of his pension. Because his call is within 13 weeks of the indexation on 20 September 2019, which is deemed to be notice of that change, and because he received a favourable outcome from the review he sought, the new rate applies from 20 September 2019.

    WHAT DOES MR WILLIAMSON SAY?

23. Mr Williamson is adamant he called Centrelink many times to follow up what he says was his request for a review of his rate of age pension between 6 March 2017 when he advised of the property settlement with his ex-wife and 27 September 2019 when Centrelink agrees he did request such a review.

24. After the hearing, The Tribunal issued directions to the parties which said:

    1On or before 10 June 2024, Mr Williamson will post to the Tribunal a copy of any Sunsuper Statements and Centrelink transcripts he has in his possession for the period between 6 March 2016 and 27 September 2019. The Tribunal will forward any material to the Respondent by email.

    2On or before 10 June 2024, the Respondent will file with the Tribunal and serve on the Applicant any and all Centrelink call records for the period between 6 March 2016 and 27 September 2019, or confirm in writing that no call records exist between this period.

    3On or before 24 June 2024, the Applicant and Respondent may provide to the Tribunal and the other party any closing submissions in reply to the further material.

25. Mr Williamson wrote to the Tribunal on 10 June 2024 in which he said:

    ‘I'm sorry but on reflection I think the audio transcripts I'm after is “(one) around 2015”? and (two) Prior to 9^th October 2019.

    The main reason being was when in discussions with Legal Aid we agreed that I needed the Audio transcripts from the beginning up until November 2019.

    I may of [sic] been confused with 2017 thinking the reason I'm not getting the full pension is that Centrelink didn't know about the property settlement?’

26. The on 19 June 2024, Mr Williamson submitted a statement entitled ‘Statutory Declaration of David Allan Williamson’. Despite its title, the statement is not a formal statutory declaration as it is not signed or witnessed. Nonetheless it contains relevant information including this extract:

    1‘The tape I listened to was definitely me to talking but I only remembered her comments regards shares and super. I do not remember after that.

    2It was only around late August 2019/Sept 2019 I realised while talking to a chap from Centrelink Sydney about low pension that I realised Centrelink was right because they didn’t receive all the information they required.

    3I honestly thought I had sent what was required. But because of a hick-up ‘history now’ it is water under the bridge.’

27. The Tribunal understands the above extracts to mean Mr Williamson realised after the hearing what he thought had happened had not, that is, he thought he had queried his rate of age pension in 2017 and provided the information necessary to correctly calculate it however he now realises he didn’t do that until 2019.

28. Only one of the audio tapes provided is of a conversation Mr Williamson had with Centrelink on 27 September 2019. After the preliminaries he updated his assets as recorded with Centrelink as follows:

Item	Recorded	Notes
Suzuki motor bike	5,000	Retained.
Holden Captiva 2017	20,000	Paid $27,000 after trade-in of $3,000 for Falcon Ute No 1.
Contents	2,000	Retained.
Falcon Ute No 1 (sold for Captiva)	0	Sold on 27-05-2017 (see above).
Falcon Ute No 2	3,000	Retained.
Sunsuper	260,000	Current value $140,000 after $5,000 withdrawal to pay bills.
Bank #911	450	Current $1,450
Bank #402	1,000	Current $2,000

1. The operator noted the bank and super balances had not been updated since 2016 and requested Mr Williamson obtain statements from Sunsuper from 1 January 2018 to date. Mr Williamson asked if he was required to notify Centrelink ‘whenever he did something’. The operator said yes if the change was more than $2,000. Mr Williamson said he thought Centrelink ‘knew everything’. The operator confirmed they received some data feeds from Sunsuper. The Tribunal understands Centrelink are advised of unit prices for each of the underlying funds, however they don’t receive a data feed of the number of units held from time to time for each customer.

2. The above exchange confirms the statements from Mr Williamson in June 2024 that even though he thought he had notified Centrelink about his assets they had not been updated since 2016 other than the removal of his half interest in the residence with his ex-wife in March 2017. The reason for that was his mistaken belief that Centrelink were receiving the data direct from the source. He ignored the notices he received over those years about the assets Centrelink recorded for him.

3. Another audio file was provided by the Secretary of a phone call Mr Williamson made to Centrelink on 8 November 2019 after he had posted the Sunsuper statement to them. The operator explained the Sunsuper statement did not show the number of units in each fund, so they are unable to update the value of his superannuation. As a result, his assets were overstated until in late in 2019 when he obtained the Sunsuper statement showing the number of units in each of the underlying funds which rectified the records of Centrelink.

4. This was discussed with Mr Williamson at the hearing where it was explained to him how the value of his funds at Sunsuper are determined by multiplying the number of units in each fund by the unit price. The unit price is provided directly by Sunsuper as discussed above. The number of units must be provided by the customer.

5. Mr Williamson did advise of the property settlement on 6 March 2017 however it is evident from the evidence before the Tribunal he was confused up to the time of the hearing about when he queried the rate of his AGP and provided an update of his assets. That occurred on 27 September 2019 and there is to suggest otherwise.

   CONCLUSION

6. There is no doubt Mr Williamson genuinely believed he has notified Centrelink of his assets on 7 March 2017 and followed up regularly after that date. His submissions post-hearing reveal he was mistaken about that. Yes, he did notify Centrelink on 7 March 2017 of the property settlement with his ex-wife however he did not update his income and assets at any time after that date until he called Centrelink on 27 September 2019.

7. Mr Williamson thanked the Tribunal at the end of the hearing for explaining to him how the system of updating his superannuation fund operates and what he should have done.

   DECISION

8. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution the Tribunal finds Mr Williamson was entitled to Age Pension from 20 September 2019 based on the update of his assets as advised on 27 September 2019 and subsequently.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

................[SGD]..............

Associate

Dated: 10 October 2024

Date of hearing:	24 May 2024
Applicant:	In person
Solicitor for the Respondent:	Ms Michelle Cornish (Senior Lawyer)
Services Australia