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

[2017] AATA 847

Winton and Secretary, Department of Social Services (Social services second review) [2017] AATA 847 (15 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4513

Re:Karen Winton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:15 May 2017

Date of written reasons:        2 June 2017

Place:Sydney

The decision under review, that is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – carer payment – whether the applicant was earning income – whether the applicant was validly notified of the decision to grant carer payment – whether MyGov notification validly constitutes notice – decision affirmed.

LEGISLATION

Electronic Transactions Act 1999 (Cth), ss 8, 9

Social Security (Administration) Act 1999 (Cth), s 109

REASONS FOR DECISION

Professor R McCallum AO, Member

2 June 2017

1. At the conclusion of the hearing in this matter, I gave oral reasons for my decision. I have been requested to furnish written reasons. The reasons below have been taken from the transcript of the decision.

BACKGROUND

1. On or about 28 October 2014, Ms Winton, who cares for her mother, registered an intention to apply for Carer Payment.  On or about 6 November 2014, Ms Winton filled in the Carer Payment form and Centrelink granted Ms Winton Carer Payment from 28 October 2014, which was the date on which Ms Winton had registered for Carer Payment.

Centrelink’s Mistake

1. In 2002, when receiving Parenting Payment, Ms Winton had stated that she was employed and that her gross salary was $744.94 per fortnight.  In August 2014, Ms Winton gave an employment separation certificate, or a copy of the employment separation certificate, when she was made redundant, to Centrelink.  When granting Ms Winton Carer Payment, Centrelink did not take into account what she wrote on her form, that she was unemployed, or the employment separation certificate, but instead went back to what was on her file in 2002 that she was employed, and therefore discounted her Carer Payment on the basis that she was still receiving a fortnightly income of $744.94.  At the hearing, counsel for the respondent conceded, as stated in the respondent’s Statement of Facts, Issues and Contentions, that Centrelink made this mistake and Centrelink recognises this mistake.

Notices by Centrelink

1. When Ms Winton went to Centrelink to give in the separation certificate, on or about 18 August 2014, it was suggested to Ms Winton that she should apply for self-service.  This means applying to receive material online.  In her evidence at the hearing, Ms Winton said that that is what happened and I found Ms Winton to be an honest and truthful witness who did her best to assist this Tribunal.  It does appear to me that it is most likely, that when filling in the application for self-service or online services on a computer at Centrelink, Ms Winton made a mistake in typing down her mobile number.  It was simply the alteration of one or two digits from a double seven to a double six, but nevertheless, it meant that there was the wrong phone number entered into Centrelink’s records. 

2. On 18 August 2014, a letter was sent to Ms Winton’s home address, and in her evidence before the Tribunal, Ms Winton agreed that she had received the letter.  The letter makes it clear that if a person did not wish to be enrolled in self-service, or had any other problem with self-service, then that person should contact Centrelink immediately.  I interpolate here that I infer that Ms Winton was flustered somewhat in August 2014 in Centrelink, and perhaps should have explained to the Centrelink officers that she did not have a computer and therefore it did not make real sense for her to be given notices online.  Ms Winton filled out the application for Carer Payment and dated it on or about 6 November 2014.  These forms are generated by computer in the sense that the details of the applicant are pre-filled and then the applicant fills the remainder of the form. 

3. As to the details on that form relating to contacts and phone numbers, there is the mobile phone number, which was not Ms Winton’s correct phone number, and there was Ms Winton’s landline number.  Ms Winton wrote beside the landline number, words to the effect, “This number is no longer in operation”.  She did not write anything beside the mobile number.  I think, in looking at it, and given that there was only one digit difference, she may have just thought that number is okay.  In any event, when she signed the back of the form she did put down her correct mobile number.  The problem is that, as I explained above, this form is generated electronically from Centrelink’s records, and as she had not said anything about the mobile number in Centrelink’s records, Centrelink then sent her SMS messages to tell her that online letters were available.

Later letters by Centrelink

1. On or about 4 December 2014, Centrelink sent an online letter to Ms Winton, and on or about 8 December 2014, Centrelink sent an SMS message to Ms Winton’s incorrect mobile phone number. She did not receive this SMS message, and therefore did not look at her MyGov account. She does not have a MyGov account however that letter of 4 December 2014 set out the fact that Centrelink were taking into account that she was still earning $744.94 per fortnight.  On 5 January 2015, a subsequent letter was sent by Centrelink online and also an SMS message was sent.  This state of affairs continued until 4 April 2016 when Ms Winton telephoned Centrelink to explain that she was taking up employment, being the correct procedure.  It was then that Centrelink realised that they had wrongfully been regarding her as employed all the time.  Centrelink backdated her full payments until 26 March.

REVIEW BY MS WINTON

1. Ms Winton sought review from an Authorised Review Officer, and in May 2016 the Authorised Review Officer said that the backdating was insufficient; it should not be backdated to 26 March 2016 but rather to 20 March 2016, the date on which an increase to her payment was made owing to the Consumer Price Index (“CPI”).  Ms Winton sought review from the Social Services and Child Support Division (SSCSD) of this Tribunal, which is known as an AAT first review (AAT1).  The AAT first review agreed with the Authorised Review Officer and affirmed the decision of the Authorised Review Officer.  Ms Winton now appeals to this Tribunal.

LEGISLATION

1. When and under what circumstances social security payments may be backdated is governed by section 109 and attendant provisions of the Social Security (Administration) Act 1999. The rules in this section revolve around two concepts. The first concept is that of valid notices issued by Centrelink, being section 109(1)(b), and the second concept is the 13 week period, being section 109(1)(c). Section 109(1) sets out a rule which says that where a person is notified of a social security decision and appeals that decision within 13 weeks of receiving the notification, and is successful, and the words used are “a favourable review”, then the payments can be backdated to the date on which the person received the notice. Section 109(1) provides:

   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.

2. Section 109(2) states:

   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.

1. Section 109(2) provides that where a person receives notice of a Centrelink decision but does not seek review of that decision until more than 13 weeks, and if a favourable decision occurs, it can only be backdated to the date of the favourable decision. This makes it very clear that if you receive notice of a decision, you must seek review within 13 weeks.

2. A further rule is contained in section 109(3) of the Act which provides:

   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.

3. Section 109(3) provides that if you did not receive valid notice of a Centrelink decision, you later seek review, and get a favourable decision, then that can be backdated to whenever that initial decision took effect. Briefly put, if valid notice was not given, the applicant will not be penalised, and the payment may be back paid.

4. In this case section 109(7) is important which provides:

   For the purposes of this section, if:

   (a)  the Secretary makes a decision constituted by a determination made under section 78 to increase the rate at which a social security payment is being, or has been, paid; and

   (b) the determination is made because an amount has been indexed or adjusted by the operation of Part 3.16 of the 1991 Act;

   then:

   (c)  each person whose rate of social security payment is, or was, affected by  the determination is taken to have been given notice of the determination and of the increased rate; and

   (d)  the notice is taken to have been given on the day on which the amount was so indexed or adjusted.

5. It is a type of deemed notice provision.  It provides that when increases in the CPI are made to social security payments, then that is deemed to be a notice to all social security recipients.  The final part of the law is the Electronic Transactions Act 1999, and particularly sections 8 and 9.  Briefly put, it allows governments, et cetera, to give notices and letters electronically, obviously with the consent of the parties. 

CONSIDERATION

1. The question before me is whether Ms Winton received valid notice of the decision to grant her Carer Payment, which took into account her income of $744.94 per fortnight. If she receive valid notice then, as she did not appeal within 13 weeks, section 109(2) applies and she can only get backdated payments to the date of the appeal. Section 109(7) would apply because she was notified or deemed to have been notified, of the CPI price increase on 20 March 2016, and as she applied within 13 weeks for a review, that is when she called Centrelink on 4 April 2016 – that was deemed to be an application for review – she can have her payments back dated to 20 March 2016. The question is whether Ms Winton received valid notice on 4 December 2014.

2. On the evidence presented before the Tribunal, I find that it was more probable than not that when applying for self-service on a computer in a Centrelink branch, Ms Winton made a very small error in typing her mobile phone number.  It is hard to get records of that, however when we look at the form which was sent to Ms Winton in relation to claiming Carer Payment, that form was generated from Centrelink electronic records, and that form contains the wrong mobile phone number.  As stated earlier, Ms Winton did note on the form that her landline number was no longer in use and I think that she most likely skimmed over the mobile number, and because there was only one digit in difference she did not pick up the mistake.  At the end of the form, she did sign it and put her correct mobile number, but that did not alter the generated records of Centrelink.

3. As to the letter of 18 August 2014, which was sent to Ms Winton after she had applied for self-service on the Centrelink computer, Ms Winton gave evidence that she received that letter.  It is clear from that letter that it says, in effect, that if the Applicant experiences any difficulties that she should phone Centrelink immediately.  In her evidence, Ms Winton stated that she really did not think about it, and when she applied for Carer Payment she did not think back to the form.  Given that Ms Winton received the letter of 18 August and was made aware of self-service, and given that she did not say anything was wrong with the mobile number on the part of the form relating to contact details that she filled in dated 6 November, I find that Centrelink did validly notify Ms Winton by sending an SMS to what was on their records, and by sending the letters online of 4 December 2014 and 5 January 2015. 

4. Given that, as Ms Winton was notified, section 109(1) applies as she did not appeal that notice within 13 weeks, and so that cannot be backdated. Section 109(7) also applies and therefore Ms Winton was deemed to be notified of the CPI increase on 20 March 2016, and as she sought review on 4 April 2016, within 13 weeks of 20 March, she can be backdated until 20 March 2016. If the law permitted me to backdate payments without more, in my view, Ms Winton has a good case for backdating. Centrelink agrees that it made a mistake of counting her income, and on the form she filled in, dated 6 November 2014, Ms Winton had clearly marked that she had no employment at that time.

DECISION

1. The decision under review, that is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member.

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Associate

Dated: 2 June 2017

Date of hearing:	15 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Larcombe, Department of Human Services