Bridges and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 80 (2 February 2009)

Last Updated: 9 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3052

GENERAL ADMINISTRATIVE DIVISION		)
	Re		COLIN BRIDGES

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Date of Decision 2 February 2009

Date of Written Reasons 6 February 2009

Place Sydney

Decision

The decision under review is affirmed.

...................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – assets overvalued – resultant reduction in age pension – pension recipient queried valuation several times – series of decisions made – operative decision made not a review of any earlier decision – no review sought within 13 weeks of operative decision – policy that land adjoining residence may be part of same parcel not applied initially – mistake discovered belatedly – arrears paid to date of application for review – decision under review affirmed.

Social Security (Administration) Act 1999 s 109

Re Frost and Secretary, Department of Social Security [1995] AATA 228

REASONS FOR DECISION

2 February 2009

Ms Robin Hunt, Senior Member

INTRODUCTION

1. Mr Colin Bridges (‘Mr Bridges’) is an elderly man now residing in a nursing home. His son, David Bridges (‘Mr Bridges Jnr’), representing his father, applied for review of a decision of the Social Security Appeals Tribunal (‘the SSAT’) which found that Centrelink could not backdate increased payments of age pension beyond the date that Mr Bridges Jnr sought internal review of the decision to reduce his father’s payments. Centrelink had overvalued Mr Bridges’ assets for calculation of age pension. Mr Bridges complained about the value on the basis that the land in question was worth less than Centrelink decided. It was not until 23 February 2007 that Centrelink recorded that Mr Bridges Jnr raised the possibility of exempting the land from the assets test. The land was exempted and Mr Bridges’ increased pension was restored from 23 February 2007. Arrears were not paid from the date when the rate was reduced, being on or about 1 June 2006.

REVIEWABLE DECISION

2. The SSAT, on 3 June 2008, affirmed the decision of a Centrelink authorised review officer (‘ARO’) that Mr Bridges was not able to receive arrears of age pension before 23 February 2007.

ISSUE

3. The issue is whether Mr Bridges can be paid arrears of age pension between 1 June 2006 and 22 February 2007.

CONSIDERATION AND FINDINGS

4. Centrelink records show that Mr Bridges has been receiving age pension since 1985. Although he owned a block of land adjoining his residence, this asset did not affect his entitlement until Centrelink decided in 2006 that its increased value meant he offended the assets test and his age pension should be reduced.
5. Centrelink wrote to Mr Bridges on 20 January 2006 requesting a real estate update. The letter asked if Mr Bridges still owned a particular property and enclosed a form which Mr Bridges was asked to fill out and return. A copy of the real estate update form signed by Mr Bridges and dated 1 February 2006 is included in the section 37 documents. On 17 May 2006, a copy of Centrelink records shows it again wrote to Mr Bridges, this time informing him that his pension payments were being reduced because the value of his assets had increased. On 11 July 2006, Centrelink sent Mr Bridges an income and assets statement. This revealed that the property, which is now known to be adjacent to his residence, was valued at $150,000.
6. On 11 July 2006, Centrelink also provided Mr Bridges with an account statement. The notice set out that his pension payments had been $505.50 per fortnight from 19 April 2006 to 16 May 2006, $420.00 from 17 May 2006 to 27 June 2006, and $430.61 from 28 June 2006 to 11 July 2006. The notice also stated that the increased value of the real estate asset applied from 12 May 2006, and noted the value of other personal assets, including his bank accounts, household goods and motor vehicle. Mr Bridges was invited to comment if he did not agree with any of this information.
7. Mr Bridges Jnr told the tribunal that his father sought a meeting with Centrelink despite being very elderly and in poor health. He had been receiving age pension for 21 years when the notice of reduction arrived. He gave evidence that his father informed him that he telephoned Centrelink in July 2006 and visited the office to try to sort out the matter. This was not an easy task for Mr Bridges in view of his advanced age and poor health. Mr Bridges told Centrelink he thought his land was then worth approximately $47,000. The SSAT noted that Mr Bridges gave this value to Centrelink, on 3 February 2006, in his completed real estate update form which I mentioned earlier. The SSAT also noted the value of the land advised in 1985 was $15,000 and increased to $20,500 in 1999. Centrelink obtained a valuation of $150,000 at 12 May 2006 from the Australian Valuation Office.
8. Mr Bridges Jnr told the tribunal that his father telephoned to arrange a meeting and then attended Centrelink to explain he strongly queried the valuation of his land at $150,000. Mr Bridges Jnr did not furnish any record he or his father had kept of the dates of conversations with Centrelink, but Centrelink records indicate conversations took place in July 2006 and this accords with Mr Bridges Jnr’s submissions. Information supplied by Mr Bridges was included in the Centrelink letter to him dated 11 July 2006, and the index to the section 37 documents furnished to the tribunal sets out that Mr Bridges supplied information on this day. On the other hand, the decision of a Centrelink delegate made on 4 April 2008, not to award compensation for detriment caused by defective administration, suggests Mr Bridges furnished information at a meeting on 18 July 2006.
9. These dates are important as Mr Bridges Jnr argues that a decision was made on 11 July 2006 and reviewed on 18 July 2006 when his father attended the meeting. He says although it was not called a review, it amounted to a review because his father requested that his concerns about the new valuation be again considered. Mr Bridges drew attention to a case he thought similar, Re Frost and Secretary, Department of Social Security [1995] AATA 228 (‘Evelyn Frost’). Centrelink says that there was no review of any decision made on 11 July 2006 but that an original decision was made on 18 July 2006. The letters of 11 July 2006 only set out new information received from Mr Bridges and other records Centrelink held at that date, including the land valuation.
10. Centrelink sent Mr Bridges two documents on 11 July 2006, an income and assets statement and a notice containing information Mr Bridges supplied as well as the likely effect of the increase in asset valuations. The ARO’s decision record also states that updates ‘were supplied’ on 18 July 2006. This is the date of a Centrelink letter informing Mr Bridges of a further reduction in his pension but does not state whether further information from Mr Bridges was the reason for this.
11. I am unable to decide with certainty on which day the meeting between Centrelink and Mr Bridges took place but note that the detailed information about assets and pension payments going back to 12 May 2006, which was set out in the letter or statement of 11 July 2006, is not repeated in the letter dated 18 July 2006. No comparable detailed information is set out in the 18 July 2006 letter as the basis for calculation of Mr Bridges’ new pension rate worked out on that date. On that day, Centrelink calculated Mr Bridges’ fortnightly pension rate from 12 July 2006, based on the information current at that date from whatever source.
12. Mr Bridges was invited in the letter of 11 July 2006 that accompanied the income and assets statement to comment on the statement and no doubt did so, but the decision on his pension entitlements from 12 July 2006 was not made until 18 July 2006. Whether or not Mr Bridges supplied information on 11 July 2006 or on 18 July 2006, or both, Mr Bridges did not within 13 weeks of the decision to reduce his pension seek review of that decision. This decision, in my view, is contained in the Centrelink letter informing Mr Bridges of a further reduction in his pension, sent on 18 July 2006.
13. Centrelink recorded the first enquiry about possibly exempting the land in question being made by Mr Bridges Jnr on 23 February 2007. Mr Bridges, however, points to evidence of his attempts to obtain reconsideration much earlier. Mr Bridges produced copies of his telephone bill which shows he called Centrelink numbers during July 2006 shortly after his father received the decision letter of 18 July 2006. In particular, the telephone bills show he called the Toowoomba office on 20 July 2006 and again on 30 July 2006. This is the Centrelink office with which his father had dealings.
14. Centrelink also recorded a conversation with Mr Bridges Jnr on 19 February 2007 querying the change in assets valuations and pointing out the land asset adjoined his father’s residence and was for private or domestic use. This conversation occurred four days before the so called first enquiry on 23 February 2007. Centrelink took the view that Mr David Bridges had no authority to speak on behalf of his father and did not act on this information. A letter of authority was received on 23 February 2007 and this is the date which Centrelink treated as the request for reconsideration.
15. The Secretary informed the tribunal that, as part of changes to exempt home property real estate, a new policy was implemented from 4 July 2006 for pension recipients as at 1 July 2006. Unfortunately, this policy was not implemented in Mr Bridges’ case. It may be that Centrelink was not aware that the property which had been valued so as to reduce Mr Bridges’ pension was adjacent to his residence. There is no record of Centrelink having discussed the policy with Mr Bridges and no action was taken before 23 February 2007 because Mr Bridges Jnr was taken to have no authority to act, although he simply wanted to alert Centrelink to the true situation and this information could have been investigated.
16. The end result is an unfortunate one in which Mr Bridges has been deprived of his full age pension for a period when he actually qualified for payment, and he and his son had tried to convince Centrelink of the true position. Because of statutory constraints contained in section 109 of the Social Security (Administration) Act 1999, Mr Bridges cannot be paid his true entitlement any earlier than the acknowledged date of an official request for review. There is no parallel with the Evelyn Frost case such as to overcome the provision of subsection 109(2), which rules out backdating any earlier than 23 February 2007 because the request for review was made more than 13 weeks after the decision of 18 July 2006. Unlike the Evelyn Frost case, Mr Bridges’ efforts were all made before the date of decision and his son did not obtain authority to represent his father until 23 February 2007. This means that I must affirm the reviewable decision that Mr Bridges cannot establish a right to arrears any sooner than the date found by the SSAT and previous decision-makers.
17. Nevertheless, in view of the evidence that Mr Bridges Jnr tried on several occasions to discuss the matter with Centrelink before 23 February 2007 and the policy which applied on and after 4 July 2006, Mr Bridges’ case might be one where he is deserving of compensation for defective administration or an ex gratia payment. Although a compensation claim was considered and rejected on 4 April 2008, this was based on a finding that there had been no further contact by Mr Bridges before 23 February 2007. The ARO also found that the assessment of value in May 2006 was correct at the time, although his notes include a statement that the rate notice addressed to Mr Bridges referred to both properties, which would seem to indicate they were treated by the local council as one property. The telephone records dating back to 19 July 2006, when Mr Bridges Jnr sought review of the decision of 18 July 2006 informally, have since been located by Mr Bridges Jnr.
18. In terms of fairness, when the policy to treat adjoining properties such as Mr Bridges’ as one, was implemented on 4 July 2006, compensation to that date might be appropriate. This is, however, a matter beyond my jurisdiction. It is a matter for Mr Bridges whether to again pursue possible compensation or to ask the Ombudsman for assistance.

DECISION

19. The decision under review is affirmed.
    

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................

Jennifer Wong, Associate

Date/s of Hearing 2 February 2009

Date of Decision 2 February 2009

Appearance for the Applicant Mr D Bridges

Solicitor for the Respondent Ms P Sharma, Centrelink Legal Services and Procurement Branch