Kovacevich and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 63 (29 January 2010)

Last Updated: 1 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1034

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Nedjeljko Kovacevich

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr A Sweidan, Senior Member

Date 29 January 2010

Place Perth

Decision

The Tribunal affirms the decision under review.

........(sgd) Mr A Sweidan...........
Senior Member

CATCHWORDS

Social Security- Disability Support Pension- whether pension should have been cancelled or suspended-decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) section 132(1)

Acts Interpretation Act 1901(Cth) sections 28A, 29

Social Security Administration Act 1999 section 81

CASES

Kavadas and the Secretary, Department of Family and Community Services [2004] AATA 74

REASONS FOR DECISION

29 January 2010	Mr A Sweidan
BACKGROUND AND HISTORY

1. Applicant seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 4 February 2009.
2. That decision affirmed an earlier Centrelink decision to cancel the applicant’s Disability Support Pension (“DSP”) from 21 December 1995 on the grounds of his failure to advise the Department of Social Security (“DSS”) of his receipt of a superannuation payment.

ISSUES

3. The issues for consideration by the Tribunal are:

3.1 did the applicant advise the DSS of a superannuation payout received by him from his former employer BHP prior to cancellation of his DSP.

3.2 should the applicant’s Disability Support Pension have been cancelled or suspended from 21 December 1995.

APPLICANT’S EVIDENCE AND CONTENTIONS

4. The applicant claims that he notified Centrelink of his superannuation payout by a letter which was dated 21 December 1995 and which the applicant claims to have posted to the address of Centrelink’s Midland, Western Australia, office on 21 December 1995. A copy of that letter appears at page 850 of the “T” documents.
5. Applicant contends that the letter must be deemed to have been received under s29 of the Acts Interpretation Act 1901 (Cth), as he claims that it meets the requirements of that section i.e. that it was properly addressed, pre-paid and posted.
6. The applicant acknowledges that following the receipt of his superannuation payment from BHP the value of his assets as at 21 December 1995 exceeded the limit which, under the relevant legislation, allowed him to continue receiving a DSP.
7. However the applicant asserts that the respondent should have exercised the discretion under s81 of the Social Security Administration Act 1999 to suspend the applicant’s pension rather than cancel it.

TRIBUNAL’S FINDINGS

NOTIFICATION OF SUPERANNUATION PAYOUT

8. The respondent stated that there is no record of receipt of the letter of 21 December 1995
9. The Tribunal finds that there is no evidence to show that the letter was received by the DSS.
10. The applicant sought to rely on s29 of the Acts Interpretation Act 1901 (Cth) which he contends has the effect that his letter should be deemed as having been received by the DSS.
11. In the Tribunal’s opinion s28A and s29 of the Interpretation Act only apply to letters or documents that are required to be served on a person pursuant to a particular section of an Act.

S28A
Service of documents
For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:

12. For example ss68(2) of the Social Security Administration Act 1999 (“Administration Act”) permits Centrelink to give a person a letter requiring them to advise of events or changes in circumstances. Section 72 of the same Act provides that this notice must be in writing and of relevance to this matter, may be given by post to the person. S237 of the Administration Act relevantly provides that:

"(1) If notice of a decision under the social security law is ... :
(c) sent by prepaid post to the postal address of the person last known to the Secretary;

1. notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved."

13. S29 of the Interpretation Act clarifies the meaning of “given by post”.
    

Meaning of service by post
Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
This section does not affect the operation of section 160 of the Evidence Act 1995 .

14. The Tribunal notes that although the applicant was required to advise DSS of changes in his circumstances under s132 of the Social Security Act (“the Act”), that section requires only that the recipient of a DSP “inform the Department” of a change in circumstances i.e. there is no requirement to “serve” “give” or “send” a notice
15. The Tribunal accordingly finds that sections 28A and 29 of the Interpretation Act do not apply to deem the DSS to have received the letter of 21 December 1995

CANCELLATION OR SUSPENSION

16. The Tribunal finds that the applicant failed to inform DSS of his superannuation payout and that his DSP was correctly cancelled from 21 December 1995, pursuant to s138 of the Act which provides that a person’s pension should be automatically terminated if the pension was not payable following the person failing to advise of an event or change of circumstance.
17. It is not disputed that the applicant’s assets were $482,187 at 21 December 1995 which is in excess of the homeowner asset value limit of $356,500 and the non-homeowner limit of $440,500 and that the pension was therefore in any event not payable.
18. S139 of the Act as at 21 December 1995 allowed a person’s disability support pension to be suspended for up to 2 years, if the person ceased to be qualified or entitled to pension because they had obtained full time paid work.
    
19. It is clear that the pension was not cancelled due to the applicant obtaining full time paid work, it was due to the value of his assets.
20. Applicant contends that his pension should have been suspended until his assets reduced to a level that would have allowed DSP to be payable to him rather than cancelled. He contends that had he been notified in December 1995 that his assets were too high, he would have had an opportunity to rearrange his financial affairs. In the Tribunal’s view even if this were so this does not justify of itself suspension rather than cancellation.
21. In the case of Kavadas and the Secretary, Department of Family and Community Services [2004] AATA 74 relied on by the applicant the Tribunal decided that suspension was preferable to cancellation because in hindsight, it could be seen that there was a continuing entitlement to payments and therefore the effects of a cancellation would have led to an unfair result.
22. The facts here are clearly different to those in Kavadas. In particular it is clear that there was no continuing entitlement to payment.
23. The Tribunal notes that the applicant has provided contradictory versions of how much superannuation was paid to him and how it was expended.
    
24. For example, in the letter dated 21 December 1995 and alleged to have been posted to DSS, he stated that the $376,000 transferred from his ANZ bank account included the cash left over from the sale of his house as well as his superannuation payment.
25. However earlier on 1 November 1995 the applicant told DSS that there was approximately $29,600 remaining from the proceeds of the sale of his home. If this was so then the net amount he received from BHP would have been around $346,000, In fact as shown in his subsequent letter dated 20 October 2005 (page 312 of the “T" documents) the “payment was for approximately $400,000 after taxes”.
26. There are numerous other contradictions in the applicant’s evidence as to his financial position which it is not necessary to detail here.
27. The Tribunal finds in all the circumstances that cancellation was the correct and preferable decision and that there was nothing which points towards suspension being more appropriate

DECISION

28. The Tribunal affirms the Social Security Appeals Tribunal decision of 4 February 2009.
    

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan

Signed: .............(sgd) Ms L Huynh..........................................

Associate

Date/s of Hearing 17 & 18 November 2009

Date of Final Submissions 7 January 2010

Date of Decision 29 January 2010

Applicant’s Representative Mr Michael Munjak

Respondent’s Representative Ms M Conlon

Centrelink Legal Services Branch