Haager and Department of Family and Community Services [2002] AATA 19 (16 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 19

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1062

GENERAL ADMINISTRATIVE DIVISION )

Re KEITH and MARGARET HAAGER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr IR Way, Member

Date 16 January 2002

Place Brisbane

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 16 June 1999 which affirmed the decision of Centrelink to reject Mr and Mrs Haager's application under the Retirement Assistance for Farmers Scheme.

(Sgd) IR WAY

MEMBER

CATCHWORDS

SOCIAL SECURITY - Retirement Assistance for Farmers Scheme - meaning of the phrase "make a request"

Social Security Act 1991 ss 1185G, 1185H, 1185J

Secretary, Department of Family and Community Services v Haagar [2001] FCA 1284

REASONS FOR DECISION

16 January 2002 Mr IR Way, Member

1. On 20 May 1999 the Social Security Appeals Tribunal (SSAT) affirmed a decision made by Centrelink on 26 February 1999 to reject the application made by Margaret and Keith Haager under the Retirement Assistance for Farmers Scheme.

2. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1 - T35).

3. The Tribunal notes the background, legislative framework, issues and findings of fact relating to this matter as set out by the SSAT in its decision (T2), as follows:

"HISTORY

1. Mr and Mrs Haager applied for Retirement Assistance for Farmers (RAFS) on 15 September 1998.

2. On 26 February 1999 a Centrelink delegate made a decision not to pay RAFS because the application should have been lodged before the 15 September 1998.

3. This decision was affirmed by an authorised review officer on 23 April 1999.

4. On the 10 May 1999 Mr and Mrs Haager appealed to the Social Security Appeals Tribunal (the Tribunal).

ISSUES

5. The issue for the Tribunal in this case is whether Mr and Mrs Haager are entitled to RAFS.

......

FINDINGS OF FACT

18. Having regard to all of the evidence before it, the Tribunal made the following findings:

(i) Mr and Mrs Haager transferred their farm to their sons on the 1 September 1993.

(ii) Mr Haager phoned the teleservice centre Hobart on 24 August 1998 to request RAFS claim forms which they received some time later.

(iii) Mr Haager was aware that the forms should be lodged prior to 14 September 1998 but did not understand the importance of this date.

(iv) Mr Haager signed the form on 14 September 1998 and gave it to the postman that day.

(v) The claim form was received by Centrelink on 15 September 1998.

(vi) Mail service to Mr and Mrs Haager's home is Mondays, Wednesdays and Fridays.

APPLICATION OF THE LAW

19. The legislation relevant to this application is contained in the Social Security Act 1991 (the Act) in particular section 1185G, 1185H and 1185J are relevant. These sections state as follows:

Request for increase

1185G. If:

(a) the rate at which a social security payment is being, or has been, paid to a person is less than the rate (the increased rate) at which it would be, or would have been, paid if the value of the qualifying interests transferred by the person or the person's partner had not been included in the value of the person's assets, or of the partner's assets, in calculating the rate of the person's social security payment; and

(b) the person wants the social security payment to be paid at the increased rate;

the person must make a request to that effect.

Form of request

1185H. A request under section 1185G must be made in writing and must be in accordance with a form approved by the Secretary.

Determination of request

1185J(1) If:

(a) a person makes a request under section 1185G in respect of a social security payment; and

(b) the Secretary is satisfied that the rate at which the social security payment is being, or has been, paid to the person is less than the rate at which it would be, or would have been, paid if the value of the qualifying interests transferred by the person or the person's partner had not been included in the value of the person's assets, or the partner's assets, when calculating the rate of the person's social security payment;

the Secretary must determine that the request is to be granted.

1185J(2) The determination takes effect:

(a) if the transfer was completed before 15 September 1998 and the person makes the request before that day - on 15 September 1997 or the day on which the transfer was completed, whichever is later; or

(b) if the transfer was completed after 14 September 1998 but before 15 September 2000 and the person makes the request during the period of 3 months that starts on the day on which the transfer is completed - on the day on which the transfer was completed; or

(c) in any other case - on the day on which the request is made.

20. For the purpose of the application section 1185J(2) is relevant in that it states that if the transfer of land is completed before 15 September 1998 (which it was in this case) the person must make a claim before the 15 September 1998."

4. The Administrative Appeals Tribunal on review set aside the decision of the SSAT on the basis that a request (under Section 1185G of the Social Security Act 1991 (the Act)) for a social security payment to be paid was made by the applicants when the proper form was posted to Centrelink on 14 September 1998.

5. By Order made on 11 September 2001, the Federal Court (Cooper J) remitted this matter to the Tribunal to be determined according to law (Secretary, Department of Family and Community Services v Haagar [2001] FCA 1284).

6. The principal issue addressed by the Federal Court was whether the meaning of the phrase "make a request" in Section 1185G of the Act necessitates actual receipt of the request before an application is complete.

7. His Honour Justice Cooper said:

"21. The means by which ... request is to be made is contained in s 1185H; it is to be made in writing and must be in accordance with a form approved by the Secretary.

22. Section 1185J is important in two respects. Firstly, it identifies the person empowered to grant the request as the Secretary. Secondly, it identifies the Secretary as the person who must be satisfied of the existence of the circumstances in s 1185G(a) and s 1185J(1)(b) which give rise to an entitlement to be paid at the increased rate.

23. In the context of Division 4, the written request in a form approved by the Secretary is intended as the mechanism whereby the person making the request communicates information to the Secretary for the purpose of the Secretary acting upon that information to discharge the statutory function cast upon the Secretary by s 1185J(1) of the Act. The communication is intended to be made by the written request with the purpose of conveying the information contained in it for the consideration of the Secretary.

24. It is apparent that the written request in the approved form is not made in a vacuum. It is a request ultimately made to or of the Secretary to be acted upon by the Secretary in terms of s 1185J(1). Section 1185J(1), in its ordinary sense, contemplates that at the time when the Secretary is required to consider the matters in s 1185J(1)(b), he or she has available the written request in the form required by s 1185J(1)(a). That is, s 1185J(1) does not contemplate a situation where a request can be made to or of the Secretary without the Secretary having received a request in the statutory form.

25. Once it appears that the statutory scheme contemplates the giving of notice of the request, including the contents of the request, to the Secretary and for it to be acted upon by the Secretary, it is difficult to avoid the conclusion that the legislature intended that the request would be made for the purpose of s 1185G when a request in the statutory form was at the latest received by Centrelink for consideration by the Secretary and that no request was made, in the sense of being complete, until it was received by or on behalf of the Secretary as the person empowered to grant the request."

8. His Honour went on to say:

"31. The making of the request is the formal step required by the Act to authorise the Secretary to make a determination under s 1185J(1); it is also the step which places the Secretary under a statutory obligation to act under s 1185(1) and to make the determination if satisfied that the requisite statutory conditions are made out to his or her satisfaction. The Secretary has a real interest in knowing with certainty that a request in writing has been made because the making of it sources both the obligation and the authority to act under s 1185J(1). The making of the request, in terms of the date on which it is made, also has financial consequences for the administration of the scheme and with respect to the payment of public monies. This follows from the operation of s 1185J(2) in determining the date upon which the Secretary's determination shall take effect. Finally, the making of a request protects the social security recipient from the consequences of any delay in the Secretary making a favourable determination under s 1185J(1) by preserving the date of making the application as the date for the purpose of the operation of any of the provisions of s 1185J(2)(a), (b) or (c). That is, once the Secretary has been put on notice of a request under s 1185G, the requestor's rights under the scheme which flow from a favourable determination are fixed and preserved, and irrespective of the delay thereafter, the administration of the scheme will be subject to the rights of the requestor to be paid at the increased rate. In this context, the risks of delay in making the request due to loss or delay in the post with the consequence that rights or benefits are not preserved for the purposes of s 1185G(2) until receipt to the written request are borne by the requestor who uses the postal service to communicate the request."

and concluded:

"33. For the above reasons, I am satisfied that a request is not made for the purposes of s 1185G of the Act, until receipt of the written request in statutory form by, or on behalf of, the Secretary and that in this respect the AAT erred in law."

9. When the matter came back to the Tribunal from the Federal Court, at the listed hearing Mr and Mrs Haager did not appear. Attempts to contact the applicants by telephone were unsuccessful. The Tribunal, having satisfied itself that the applicants had reasonable notice of the proceedings, and after hearing submissions from Mr S Letch, Departmental Advocate who appeared for the respondent, determined that the Tribunal, pursuant to Section 40 of the Administrative Appeals Tribunal Act 1975, should proceed in the absence of the applicants.

10. After consideration of the material before it, the Tribunal is satisfied that the facts as found by the SSAT and as set out above in paragraph 3 are correct.

11. The Tribunal is mindful that pursuant to Section 1185J(2) of the Act, if transfer of land is completed before 15 September 1998 (which it was in this case), the person must make a claim before 15 September 1998.

12. Applying the interpretation of the law as determined by Cooper J (summarised above), the Tribunal finds that the applicants made their request under the Retirement Assistance for Farmers Scheme on 15 September 1998 and as such their request was not made before 15 September 1998 as required by Section 1185J(2)(a) of the Act.

13. It follows from the reasons given above that the Tribunal affirms the decision of the SSAT affirming the decision of Centrelink to reject Mr and Mrs Haager's application under the Retirement Assistance for Farmers Scheme.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Robert Hayes

Associate

Date of Hearing 14 December 2001

Date of Decision 16 January 2002

For the Applicants No appearance

For the Respondent Mr P Kanowski, Departmental Advocate