Yainu and Secretary, Department of Social Services (Social services second review) - [2023] AATA 3382

Yainu and Secretary, Department of Social Services (Social services second review) [2023] AATA 3382 (20 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0822
Re:Hidat Yainu
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:20 October 2023
Place:Adelaide

The decision under review is affirmed.
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Senior Member K Millar
CATCHWORDS
SOCIAL SECURITY – family tax benefit – parenting payment
LEGISLATION
Acts Interpretation Act 1901 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Hale and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 165
Peura and Secretary, Department of Family and Community Services [2003] AATA 1123
REASONS FOR DECISION
Senior Member K Millar
20 October 2023
BACKGROUND

Ms Yainu was receiving parenting payment until 11 August 2021, when it was cancelled because her son turned 6 years of age. However, Ms Yainu had given birth to her youngest child, in February 2021 and continued to be qualified for parenting payment.
The original decision to cancel Ms Yainu’s parenting parent was set aside by the Authorised Review Officer, who found her parenting payment should be reinstated from 11 August 2021, but who also found that she could not be paid before 1 April 2022.
The Social Services and Child Support Division of this Tribunal (“AAT1”) varied the decision so that the decision to cancel the Ms Yainu’s parenting payment was set aside and substituted with a decision not to cancel the payment with effect from 25 March 2022.
It is conceded by the Secretary that Ms Yainu’s parenting payment was incorrectly cancelled. However, it is argued that because she did not seek review of this decision within 13 weeks of being notified of the decision to cancel her parenting payment, the earliest date of effect of a favourable decision is the date she requested a review of the decision.
Ms Yainu appeared at the hearing, and it was apparent that she required an interpreter in the Tigrinya language. The hearing was adjourned before proceeding with the assistance of an interpreter in the Tigrinya and English languages. The Tribunal also heard from Ms Yainu’s husband, Mr Weldemariam.
ISSUE
As it is not in dispute that Ms Yainu’s parenting payment was incorrectly cancelled, the remaining issue is the date of effect of the favourable decision.
Subsection 109(2) of the Social Security (Administration) Act 1999 (the Administration Act) states:
(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.
A ‘favourable determination’ as defined in s 108 of the Administration Act includes a determination under s 85 of the Administration Act. Section 85 of the Administration Act addresses circumstances where a person’s payment has been incorrectly cancelled, as occurred in this case.
If a person is not given notice of the decision and the person applies for a review under s 129 of the Administration Act, a favourable determination takes effect from the date of the decision (s 109(3) of the Administration Act).
If Ms Yainu was given notice of the decision to cancel her parenting payment, the date of effect of a favourable decision will be determined by whether she applied 13 weeks after the notice was given, or applied for review after this time.
There are three issues arising; the first is what a sufficient notice, the second is when a notice was received, and the third is when Ms Yainu sought a review of the decision.
Sufficiency of the notice
A decision of an officer under social security law must be in writing (s 236 of the Administration Act).
Under s 5 of the Administration Act, a notice is sufficient if it is given in a manner approved by the Secretary. Section 5 of the Administration Act specifies that this does not prevent a notice being given in accordance with s 28A of the Acts Interpretation Act 1901 (“Interpretation Act”). The Tribunal is not aware of any particular manner approved by the Secretary.
In Peura and Secretary, Department of Family and Community Services [2003] AATA 1123 at [37], DP Jarvis set out the principles in considering when a notice is sufficient. This approach was endorsed in Hale and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 165 by DP Handley at [17]. These principles are:
·     the Tribunal should be able to identify the decision of which notice is given;
·     the letters should be construed objectively; and’
·     the letters should be intelligible, that is they should inform the recipient of the making of the decision and the content of it;
·     …
·     the letters need not advise the reasons for the decision.
The information that Ms Yainu’s parenting payment “is due to end because your youngest child is turning 6 years of age” was sent to her MyGov account on 14 July 2021, and an email was sent to her email address on the same date, that also stated her payment is “due to end.” A statement that Ms Yainu’s payment is due to end does not provide clear information of a decision that her parenting payment is cancelled and is not sufficient notice of this decision.
A letter sent to Ms Yainu to her residential address dated 14 July 2021 includes the statement “your parenting payment is cancelled from 11 August 2021. This is because you do not have a dependent child under 6 years of age living with you after this date”.
This letter was correctly criticised by AAT1 because the notification of the cancellation of Ms Yainu’s payment is contained in the body of the letter, after the main heading of parenting payment information and various rates information. Nevertheless, it is a notice in writing of the decision to cancel her parenting payment, and notice that is sufficient was provided to Ms Yainu.
When was it received?
Section 237 of the Administration Act deems a person to have been given a notice if it is delivered to the person personally, is left at the address of the residence or the last place of business of the person, or is sent by prepaid post.
Section 29 of the Interpretation Act states where an Act authorises or requires a document to be sent by post, then it will be deemed to be sent by properly addressing, prepaying and posting the documents as a letter and, unless the contrary is proved, to have been received at the time at which the letter would be delivered in the ordinary course of post.
Section 29(2) of the Interpretation Act states, “This section does not affect the operation of section 160 of the Evidence Act 1995.” Section 160 of the Evidence Act 1995 (Cth) (“Evidence Act”) states:
(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.
(2) …
(3) In this section:
"working day" means a day that is not:
(a) a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Note:Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.
Section 163 of the Evidence Act addresses letters sent by government agencies, and states:
(1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
(2) In this section:
"business day" means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
"letter" means any form of written communication that is directed to a particular person or address, and includes:
(a)any standard postal article within the meaning of the Australian Postal Corporation Act 1989 ; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c)any unenclosed written communication that is directed to a particular person or address.
Note: Section 5 extends the operation of this section to proceedings in all Australian courts.
The combination of these provisions deems the notice to have been received 12 working days after it is dated. The letter is dated 14 July 2021 and is taken to have been received on 30 July 2021.
When did Ms Yainu seek review of the decision?
Ms Yainu said that she provided information on the birth of her daughter at the hospital on a Centrelink form and thought this was sufficient to continue to be paid parenting payment. They did not realise that they were not being paid parenting payment due to other payments going into their account.
Mr Weldemariam claimed he contacted Centrelink on 24 November 2021 and asked the reason Ms Yainu’s parenting payment had stopped. There are two calls in his telephone records to the number 13 2468. Both calls each last 1 minute and 21 seconds.
Before the hearing, additional Centrelink records for both Mr Weldemariam and Ms. Yainu were provided to the Tribunal. These records do not show any contact with Centrelink on this date.
The Secretary argues that 1 minute and 21 seconds is insufficient time in which to discuss disagreement with the decision to cancel a payment. The claim that Mr Weldemariam contacted Centrelink on this date to dispute the cancellation is also inconsistent with his later statement that he thought the forms completed on the birth of their daughter were sufficient for Ms Yainu to continue to receive parenting payment. I do not accept that Mr Weldemariam contacted Centrelink to request a review of the decision to cancel Ms Yainu’s parenting payment on this date.
Mr Weldemariam also claimed he contacted Centrelink on 1 January 2022, however as this is a public holiday, this is also not accepted.
Ms Yainu again claimed parenting payment on 25 March 2022 and provided information regarding the birth of her daughter. This amounts to a query about the decision to cancel her payment, and the Tribunal find this was the date she applied for review.
Documents from Ms Yainu’s Centrelink file include a statement from Mr Weldemariam that his understanding was that when they completed the Centrelink form in February 2021, after the birth of their baby, and this was enough to continue to receive parenting payment. This is a reasonable assumption, and it was an error on the part of Centrelink that led to Ms Yainu’s payment being cancelled.
The Tribunal finds Ms Yainu sought review of the decision on 25 March 2022, and the date of effect of a favourable decision should be this date.
As this is the same outcome as reached by AAT1, the decision under review is affirmed.
Other matters
There is no dispute that the payment was incorrectly cancelled. Ms Yainu and Mr Weldemariam filled in forms for Centrelink on the birth of their daughter, but this was not transferred to Ms Yainu’s parenting payment,
Ms Yainu’s first language is not English, and she required an interpreter in Tigrinya to speak to the Tribunal. As stated by her husband, at this time there was conflict in the Tigray region and the family were under stress because of the effect of COVID. The notification to Ms Yainu did not highlight the cancellation of her parenting payment.
A further avenue for relief may be through the Scheme for Compensation for Detriment due to Defective Administration. The Secretary provided further details for this scheme to Ms Yainu in closing submissions.
DECISION
The decision under review is affirmed.

36. I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

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Associate

Dated: 20 October 2023
Date of Hearing: 23 August 2023

Advocate for the Applicant:
Hidat Yainu

Self-Represented

Advocate for the Respondent:
Mr Riley Calaby

Services Australia