Winchester and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1825
•3 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1825
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1322
GENERAL ADMINISTRATIVE DIVISION ) Re PAULINE WINCHESTER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date3 October 2007
PlaceBrisbane
Decision 1. The decision under review is set aside; and
2. The matter is referred back to the Secretary for recalculation of entitlements in accordance with the reasoning in this decision as follows:
a. Under s 109(2) of the Act, in respect of the decision relating to the notice issued on 23 September 2003; and
b. Under s 109(3) of the Act, in respect of all other decisions made since 1 April 2001.
.................[Sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pension, Allowances and Entitlements – age pension – assets – notice – applicant advised Centrelink of changes to assets – Centrelink incorrectly recorded applicant’s assets – arrears of pension – whether notice was given by Centrelink – decision set aside
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security (Administration) Act 1999 (Cth) s 16, 109, 110, 129Social Security Act 1991 (Cth)
Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138
Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272
Secretary, Department of Employment and Workplace Relations v Luigina Spinapolice [2006] AATA 191Re Hutton and Secretary, Department of Family and Community Services [2005] AATA 330
Re Fairweather and Secretary, Department of Family and Community Services [2005] AATA 201
Re Rigg and Secretary, Department of Family and Community Services [2006] AATA 9REASONS FOR DECISION
3 October 2007 Dr KS Levy, RFD, Senior Member Introduction
1. The applicant in this case is Mrs Pauline Winchester, who has been the recipient of an age pension since December 1992. From that time until 21 October 2005, she had assets which affected the quantum of that entitlement. She advised Centrelink of some changes in 2001 and, despite still having some assets available, a change in the level of her entitlement at that time was expected. The record clearly shows that formal notices were sent to Mrs Winchester on 3 July 1998, 10 August 2000 and 23 September 2003 advising of a change in the rate of her pension entitlement and showing the annual income which had been taken into account in calculating those respective entitlements.
2. On 21 October 2005, Mrs Winchester advised Centrelink that she no longer had any cash assets or investments. Assistance from a friend in reviewing Centrelink documentation received by Mrs Winchester, resulted in her forming an opinion that Centrelink records had recorded her assets incorrectly at a number of points in time. As a result, on 6 November 2006, she made an application for review of decisions made in relation to her previous entitlements. On 14 November 2006 she made that request in writing (T30 folios 64 - 67). The original decisions were affirmed, initially on 22 November 2006, then by an Authorised Review Officer (ARO) on 15 December 2006 and subsequently, by the Social Security Appeals Tribunal on 12 March 2007.
3. Mrs Winchester was self-represented at the hearing before this Tribunal but was accompanied by Mr Gary Guidoux, a friend. Mr Guidoux advised that Mrs Winchester had a hearing impairment and that he would assist her in presenting her evidence. The respondent was represented by Mr Rick McQuinlan.
Issue
4. Mrs Winchester was not disputing the rate of pension paid. Therefore, the only question for determination was whether she was entitled to payment of arrears of age pension, in light of her changing level of assets since 2001.
Evidence
5. The Tribunal had the benefit of the section 37 documents (Administrative Appeals Tribunal Act 1975) (Exhibit 1); Print outs summaries of Mrs Winchester’s calculated pension amounts (gross and net) for the period 4 January 2001 to 6 September 2007 (Exhibit 2); Print outs of official letters forwarded to Mrs Winchester (Exhibit 3); and a copy of bank statements from the National Australia Bank (NAB) in the name of Pauline Ruth Winchester for the period 24 March 2001 to 23 September 2005 (Exhibit 4). Mrs Winchester and Mr Guidoux gave sworn evidence.
6. The Tribunal heard that Mrs Winchester went to Centrelink in March or April 2001 and spoke with an officer and presented her with details of her National Australia Bank account. That showed the level of assets had changed. Mrs Winchester stated that she was told that Centrelink would investigate it further. She gained the impression it would be fixed and heard nothing to the contrary after that occurrence. Mr Guidoux pointed to a number of facts on the record, particularly as reported in the Social Security Appeals Tribunal (SSAT) decision, that he said were factually incorrect. For example, he referred to the SSAT decision which indicated that Mrs Winchester did not tell Centrelink that she had placed $37,830 in a NAB account (T2 folio 14). Mr Guidoux also said that that decision, which was based on Mrs Winchester finding on 26 October 2006 that her pension was based on investments of $59,197.81, was factually incorrect (T2 folio 14; T2 folio 15). Mr Guidoux informed the Tribunal that when he visited Mrs Winchester at one stage after she received the Centrelink letter dated 26 October 2006, he realised that she was having some difficulty with Centrelink, because the amounts of assets which she had reported were not properly recorded, as evidenced by the value of assets which were being taken into account in assessing her pension. For example, he specified that Centrelink was still recording her assets as including a caravan at that time, which had been sold 12 months previously. Mr Guidoux clarified amounts of cash assets raised by the respondent. He said the deposit of $8,000 in her account on 28 September 2005 was as a result of the sale of the caravan; a withdrawal of $4,000 on 3 October 2005 was a loan which Mrs Winchester gave to him; and there is another amount of $6,500 shown as a withdrawal from the account on 27 October 2005. Mr Guidoux said it was not apparent what that latter amount represented.
7. In cross-examination, Mrs Winchester agreed with Mr McQuinlan that she had a balance of $37,830.46 in her account on 16 March 2001 after she withdrew some amount from her investments (T47 folio 99). She also agreed that an amount of $8,000 was deposited into her account on 28 September 2005 (T47 folio 97).
Consideration
8. I have considered and weighed all the evidence (both oral and written) as well as the relevant law (statutory and case law).
9. I note the ARO considered the determination fell within the ambit of s 109 of the Social Security (Administration) Act 1999 (the Act). The Social Security Appeals Tribunal regarded s 110 of the Act as being the dominant provision. Section 110 deals with the situation where a person attains a favourable decision after informing the Department of events or change of circumstances. Section 109 deals with a situation where a review has taken place, and different consequences flow depending on whether notice was given of the original decision and also whether a review was requested of the Secretary within 13 weeks of the original decision.
10. While it can be envisaged that either of these provisions could be regarded as having application, I consider s 109 is more relevant to the particulars of this case. The relevant provisions of that section are:
“109 Date of effect of favourable determination resulting from review
(1) ……
(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.
(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.”
11. I make findings of fact as follows:
(a)Mrs Winchester’s assets changed in 2001.
(b)I regard Mrs Winchester as a witness of truth and that she did inform Centrelink of changes to her assets in 2001. She gave sufficient information and detail for the matter to be pursued.
(c)For the purposes of clarity, in applying the final determination in this matter, I also make a finding of fact that that advice to Centrelink occurred on 1 April 2001.
(d)Mrs Winchester heard nothing as a result of providing the information in (b).
(e)Notice was given in September 2003 that changes had been made to her pension and the basis upon which her income was assessed for pension purposes.
(f)The automatic pension changes (increases/decreases) occurred in April 2002, October 2002, April 2003, October 2003, April 2004, October 2004, April 2005, October 2005, November 2005, April 2006, July 2006, October 2006, November 2006, January 2007, April 2007, June 2007 and July 2007.
(g)Mrs Winchester made a request for review on 6 November 2006 and then subsequently made that request in writing on 14 November 2006.
12. The question to be determined is whether the applicant is entitled to arrears of pension paid prior to November 2006. This depends on whether she received “notice” and whether she applied for review within 13 weeks of any such notice. This is made more difficult because there were assets affecting her right to pension up until 21 October 2005 when Mrs Winchester advised that she no longer had any assets. Centrelink adjusted the rate of age pension automatically at various dates in accordance with the rate calculator set out in the Social Security Act 1991. The question for determination is essentially whether the request by Mrs Winchester in November 2006 entitled her to arrears of pension prior to 21 October 2005.
13. The law, as far as is relevant, is essentially that Mrs Winchester is entitled to arrears of pension –
a.If notice was given and application for review was made more than 13 weeks after the notice was given, then the date of effect of any favourable determination is the day on which the application for review was made (s 109(2));
b.If notice was not given and application for review is made, then if a favourable determination is made the effective date will be the day of the determination of the original decision (s 109(3)).
HAS NOTICE BEEN GIVEN?
14. Whether notice has been given and communicated adequately, should be considered in the light of two Federal Court decisions. In Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138 at 147, Drummond J said that a clear statement must be apparent showing that the respondent has made a decision in fixing a rate of payment (and not merely information where an inference may be drawn as to a decision), before a communication could be regarded as a “notice” (see paragraph 36). Also, in Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272, Cooper J found that “notice” can be communicated only where there is a reviewable decision made. He said two elements need to be present “…. the fact that a decision has been made and the content of the decision” (paragraph 33). His Honour also noted that the statutory provision does not make any reference which could be interpreted as requiring the person receiving the notice to understand the reasons for the decision, which might put them in a position to exercise any right of review (paragraph 35). His Honour concluded in that case that the reference to a notice relates to “…. any decision capable of review…. which, upon review, leads to a favourable determination….”
15. Mr McQuinlan also referred me to Secretary, Department of Employment and Workplace Relations v Luigina Spinapolice [2006] AATA 191 and two previous authorities in that case. As a result, I have also considered other decisions of Re Hutton and Secretary, Department of Family and Community Services [2005] AATA 330; Re Fairweather and Secretary, Department of Family and Community Services [2005] AATA 201; and Re Rigg and Secretary, Department of Family and Community Services [2006] AATA 9.
Formal Notice of 23 September 2003
16. From the facts presented to me, the question for determination in the first instance is what previous decisions of Centrelink in relation to Mrs Winchester’s pension entitlements does the request for review by Mrs Winchester dated 6 November 2006 (or the written request on 14 November 2006), apply to? There is only one formal notice which has been communicated to Mrs Winchester since she first advised Centrelink of a reduction in her assets in 2001, and which fit the criteria set out by Cooper J in the Rogers case (supra), that is, the notice dated 23 September 2003. In respect of that notice, a request for review was clearly received more than 13 weeks after the notice was given to the Secretary. In the circumstances I find Mrs Winchester is entitled to a favourable determination in respect of arrears in relation to a review of that decision. Therefore, any favourable determination can only take effect on the date on which the application for review was made (s 109(2)).
17. But should the application dated 6 November 2006 or the written application dated 14 November 2006 be the effective date? An application for review must be made in accordance with s 129 of the Social Security (Administration) Act 1999. There is no reference in that section for an application to be in writing. That might be contrasted with, for example, s 16 of that Act which provides that to make a “claim”, a “written claim” must be made (s 16(2)). To conclude that a written application for review is required would be contrary to the specific words used in different contexts in the Act, albeit that they refer to similar processes. To regard the legislation as intending that an application for review must be in writing would be contrary to the express language used. Therefore, in respect of the decision about which notice was given on 23 September 2003, the favourable determination must be effective on 6 November 2006.
No Notice Given – All Decisions except that of 23 September 2003
18. I find that no notice was provided in respect of these decisions made to adjust the pension entitlements by automatic review. That is, in decisions affecting Mrs Winchester’s pension entitlements since 2001, with the exception of the decision which resulted in a notice to her dated 23 September 2003 (dealt with in the previous section), I find that all of the other decisions were not subject to a notice being communicated to her. For those other decisions, s 109(3) of the Social Security (Administration) Act 1999 must be applicable.
19. For all decisions under review (except that of 23 September 2003), I accept that for the purposes of s 109(3)(c), that the application for review made on 6 November 2006 and confirmed in writing on 14 November 2006, is also an application to the Secretary for review of the original decisions under s 129. This means that in respect of these decisions, Mrs Winchester is entitled to a favourable determination as from the date of determination of the respective pension adjustments.
IS THE APPLICANT ENTITLED TO ARREARS OF PENSION?
20. Given that the applicant’s circumstances have been conveyed to the Secretary at various points in time since 1 April 2001, then Mrs Winchester should be entitled to arrears of pension, subject to the rate calculator and the level of her assets at various times throughout the respective periods from 1 April 2001
21. I therefore set aside the decision of the Social Security Appeals Tribunal based on the reasoning above. I refer the matter back to the Secretary for recalculation of pension entitlements based on the provisions of s 109(2) (in respect of the decision of 23 September 2003) and s 109(3) as determined above (in respect of all other decisions). These recalculations should take account of the quantum of assets held at dates of pension adjustments and the arrears of pension should be re-calculated accordingly. Specifically, I determine as follows:
1. The decision under review is set aside; and
2. The matter is referred back to the Secretary for recalculation of entitlements in accordance with the reasoning in this decision as follows:a. Under s 109(2) of the Act, in respect of the decision relating to the notice issued on 23 September 2003; and
b. Under s 109(3) of the Act, in respect of all other decisions made since 1 April 2001.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member.
Signed: .....................................................................................
F Kamst, Legal Research OfficerDate/s of Hearing 27 August 2007
Date of Decision 3 October 2007
Applicant Assisted by friend, Mr Guidoux
Respondent Mr R McQuinlan, departmental advocate
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