Editors --- "Age pension: review sought after 13 weeks; notice of decision" [2007] SocSecRpr 32; (2007) 9(3) Social Security Reporter, Article 6

• COWAN AND PETRIE and SECRETARY TO THE DFaCSIA
• Background
• The law
• Submissions
• Conclusion
• Formal decision

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Age pension: review sought after 13 weeks; notice of decision

COWAN AND PETRIE and SECRETARY TO THE DFaCSIA

(2007/1473)

Decided: 27th June 2007 by B. J. McCabe

Background

Cowan and Petrie were receiving age pension at the single rate, when Centrelink began to incorrectly pay them at the partnered rate from a date in 2004.

Centrelink sent letters advising of the new rate of payment. The letters advised of the rate of pension paid but did not say that the decision had been made to change the rate of pension. Nor did the letters expressly state that the decision had been made to pay them at the partnered rate, rather than the single rate. Following this initial letter, other letters were sent by Centrelink advising the amount of payments to be made, however none expressly stated that payments were made at the partnered rate.

Cowan and Petrie became aware that they were being paid at the partnered rate and requested a review on 31 March 2006. Centrelink conceded the error but decided that arrears could not be paid because of the application of s.109 of the Social Security (Administration Act) 1999 (the Act). The matter was appealed to the SSAT which decided that some additional payment should be made but otherwise affirmed the decision.

The law

Section 109 of the Act limits the right of people receiving social security payments to recover arrears where a mistake has been made in relation to their entitlement. In essence it states that if a valid notice was served, informing them of the decision, and they do not seek a review of the decision within 13 weeks, then recovery of arrears is limited to the date from which they sought review.

Submissions

The argument made by Cowan and Petrie was that the letters sent to them in 2004 were not proper notices and therefore, under ss.109(3) they could recover arrears from the date of the original decision.

The submission of the Department was that all necessary information had been provided in the correspondence sent to the applicants and therefore the letters did constitute valid notices.

Conclusion

In reaching its decision the AAT referred to the cases of Austin v Secretary, Department of Family and Community Services [1999] FCA 938 and Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447 as follows:

14. Drummond J said in Austin (at [35]) a valid notice required a clear statement by the respondent that a decision had been made ‘as opposed to information from which an inference to one or other of those effects might be drawn...’. His Honour went on to point out that merely informing a recipient of a changed rate of payment without linking it to a decision was notice of the result or effect of a decision, but not notice of the decision itself.

15. Cooper J followed a similar approach in Rogers. His Honour observed (at [33]) that a valid decision must refer to the fact of a decision being made and the contents or effect of that decision. His Honour agreed it was unnecessary to set out the reasons for the decision.

The AAT concluded that the letters sent to the applicants did not expressly refer to the decisions having been made, they simply reported the effect of the decision. The Tribunal found that the information in the letters was not ‘...enough by themselves to bring home to the reasonable reader the fact that a decision has been made’.

The AAT found that the applicants were entitled to a degree of clarity and that this did not occur in this case. Consequently they could not be considered to have received a valid notice of the decision and were entitled to arrears by way of the application of ss.109 (3).

Formal decision

The AAT set aside the decision under review and substituted a decision that Cowan and Petrie be paid at the single rate of age pension from the date of the original decision.

[R.P.]