FEDERAL COURT OF AUSTRALIA

Polydorou v Secretary, Department of Social Services [2014] FCA 1059

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    On or before 10 October 2014, if the respondent seeks an order against the applicant in respect of the costs of the appeal, the respondent is to file and serve an affidavit deposing to the amount it seeks to recover from the applicant by way of the costs of this appeal, and deposing to how that sum is calculated.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        The applicant, Mr Polydorou, has appealed from a decision of the Administrative Appeals Tribunal (the AAT). The AAT determined the date from which a decision of the Social Security Appeals Tribunal (the SSAT), favourable to the applicant, on the “portability” of his disability support pension while he was in Cyprus, could take effect.

2        For the reasons I set out below, and recognising the applicant’s characterisation of the legal position he finds himself faced with as “unfair”, his appeal must be dismissed.

FACTS AND PROCEDURAL HISTORY

3        There are no contentious factual matters in this appeal. The summary I set out here is taken from the material before the AAT.

4        Since November 2006, the applicant has received a disability support pension pursuant to the Social Security Act 1991 (Cth) (the Act). On 5 October 2010, the applicant left Australia and travelled to Cyprus to care for his mother, who was very ill. On 4 January 2011, an officer of Centrelink wrote to the applicant to notify him that, because he had remained overseas for more than the maximum period of 13 weeks without seeking an extension of this period, his pension had been suspended. Payments to the applicant ceased effective 3 January 2011. On 5 April 2011, Centrelink cancelled the applicant’s pension.

5        Although he had originally intended to stay away from Australia for a period of approximately three months, a number of events occurred while he was in Cyprus which prolonged his stay. He had medical and dental problems. His wife in Australia sought to divorce him, his depressive disorder and other psychiatric conditions were exacerbated, and his mother became gravely ill and died in February 2011. He planned to return to Australia several times, but was not well enough to do so. He gave evidence to the SSAT that while he was in Cyprus, he received a pension from the Cyprus government of 294 Euros per month.

6        On 28 January 2012, the applicant returned to Australia. Promptly, on 31 January 2012, he contacted Centrelink by telephone to make a further claim for a disability support pension. A package of forms was sent to him on that day for him to complete and return to Centrelink by 14 February 2012. Accordingly, on 14 February 2012, he lodged a further application for a disability support pension. His claim was initially rejected by Centrelink but, after internal review by an authorised review officer, on 28 June 2012 his claim was approved and payments to him were backdated to 31 January 2012.

7        Therefore, it is correct to say that the applicant received disability support payments on and from 31 January 2012, even though in part they were received by way of a backdated lump sum payment.

8        Although he was receiving his pension from this date, the applicant remained dissatisfied that his pension had been cancelled while he was in Cyprus, and he had missed out on payments for a period of approximately a year. He told the AAT that, when he had spoken to Centrelink in January and February 2012, he had asked for “back payments”. Centrelink’s records did not record any such request by the applicant.

9        On 20 December 2012, the applicant contacted Centrelink by telephone, requesting that it reconsider the cancellation decision of 5 April 2011 and give him back-payments of his pension for the period from 4 January 2011 to 27 January 2012, while he was in Cyprus. He told both the SSAT and the AAT that he did not call until December 2012 because he did not understand he needed to lodge a specific application or appeal about the cancellation decision.

10        On 24 June 2013, an authorised review officer affirmed the cancellation decision and the decision not to pay the applicant for the period 4 January 2011 to 27 January 2012. On 8 July 2013, the applicant applied for review of that decision in the SSAT.

11        A hearing before the SSAT was conducted on 9 August 2013, where the applicant gave evidence, assisted by a Greek interpreter. The SSAT accepted the applicant’s evidence about what prolonged his stay in Cyprus. It found on this evidence that he satisfied the requirements in s 1218C of the Act for the “portability period” of his pension to be extended, on a discretionary basis, beyond the statutory limit of 13 weeks.

12        It went on then to consider the date of effect for this favourable determination, as it was required to do. That required the SSAT to examine the terms of ss 109 and 237 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which are set out below and which are dealt with in more detail later in these reasons. The SSAT concluded the effective date was the date on which the applicant sought review of the cancellation decision: namely, 20 December 2012. Since he had in fact received his pension since January 2012, no additional payments were due to him.

13        The SSAT therefore affirmed Centrelink’s decision not to pay the applicant disability support pension for the period 4 January 2011 to 27 January 2012. A copy of the SSAT’s reasons was provided to the applicant by post on 15 August 2013. On 17 September 2013, the applicant sought review of the SSAT decision in the AAT.

14        The application for review was heard in the AAT on 10 June 2014. In reasons provided orally at the conclusion of the hearing, the AAT affirmed the decision of the SSAT. It adopted the same reasoning as the SSAT. Written reasons of the AAT were delivered five weeks later: Polydorou and Secretary, Department of Social Services [2014] AATA 478.

15         By a notice of appeal filed with this Court on 8 July 2014, the applicant appeals the decision of the AAT under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

RELEVANT ASPECTS OF THE LEGISLATIVE SCHEME

16        Division 2 of Part 4.2 of Ch 4 of the Act regulates the “portability” of social security payments in accordance with international agreements. Section 1213 provides that these provisions apply to a person during a period of absence from Australia if, immediately before the absence, the person was receiving a social security payment. Relevantly for the applicant’s claim, s 1217(4) of the Act set out the maximum portability period for a disability support pension. At the relevant time, the period was 13 weeks, although it is now 6 weeks.

17        Section 1218C provides for the limited circumstances in which a person’s portability period might be extended, by an exercise of discretion. Relevantly, it provides:

(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

…

(b) a serious illness of the person or a family member of the person;

(c) the hospitalisation of the person or a family member of the person;

(d) the death of a family member of the person;

…

(2) The Secretary must not extend the person’s portability period under subsection (1) unless:

(a) the event occurred or began during the period of absence; …

18        The Administration Act provides for the administration of social security law, including the Act. It includes provisions about review, time limits and notifications. Section 80 of the Administration Act authorises the Secretary to cancel or suspend a person’s pension:

(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment; or

(b) to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

(2) Subsection (1) does not authorise the Secretary to make a determination if:

(a) the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and

(b) the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.

(3) However, subsection (1) authorises the Secretary to make a determination that:

(a) cancels a social security payment that has been suspended under subsection 81(3); and

(b) takes effect at or after the time the suspension took effect.

(3A) Subsection (1) does not authorise the Secretary to make a determination that cancels the payment of a parenting payment, youth allowance, austudy payment, newstart allowance or special benefit to a person if:

(a) paragraph (1)(a) does not apply to the person; and

(b) paragraph (1)(b) applies only because of the application of a compliance penalty period.

(4) A reference in this section to a social security payment being, or having been, paid includes a reference to:

(a) if the social security payment is a youth allowance — the youth allowance being payable but for the operation of section 547AA; or

(b) if the social security payment is a newstart allowance — the newstart allowance being payable but for the operation of section 615.

19        Section 85 of the Administration Act provides for resumption of payments to a person in circumstances where the Secretary is satisfied the person’s payments should not have been cancelled or suspended. It provides:

(1)    If:

(a)    a person’s social security payment is:

(i)    cancelled by force of section 93 or 94; or

(ii)    cancelled or suspended under section 80, 81 or 82; or

(iii)    cancelled under Part 3C (schooling requirements); and

Note:    For reconsideration of the suspension of a schooling requirement payment, see sections 124J, 124N and 124NG.

(b)    the Secretary reconsiders the decision; and

(c)    as a result of the reconsideration, the Secretary is satisfied that, because of the decision:

(i)    the person did not receive a social security payment that was payable to the person; or

(ii)    the person is not receiving a social security payment that is payable to the person;

the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.

(2)    The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary’s own initiative.

20        The power of the SSAT to review decisions under the social security law is set out in Div 3 of Part 4 of the Administration Act. Section 140 provides that Div 3 applies to “all decisions of an officer under the social security law”. Section 142 sets out who may apply to the SSAT for review of a decision:

(1)    … if:

    (a)    a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135; and

    (b)    the decision has been affirmed, varied or set aside;

a person whose interests are affected by the decision of the Secretary, the Chief Executive Centrelink or the authorised review officer may apply to the SSAT for review of that decision.

…

21        Section 109 provides for the date of effect of a favourable determination resulting from a review of a decision. Relevantly for the applicant’s claim, s 109(2) provides:

(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.

22        A “favourable determination” for the purposes of the Administration Act is defined in s 108 to include a decision under s 85 of the Administration Act, made upon reconsideration of a cancellation or suspension decision, that a person did not receive a social security payment that was payable to them. A favourable determination “made as a result of the application for review”, relevantly, includes a decision of the SSAT.

23        Section 237 of the Administration Act provides for deemed notification of a decision in certain circumstances:

(1) If notice of a decision under the social security law is:

(a) delivered to a person personally; or

(b) left at the address of the place of residence or business of the person last known to the Secretary; or

(c) sent by prepaid post to the postal address of the person last known to the Secretary;

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.

…

THE AAT’S DECISION AND REASONS

24        On review of the SSAT decision, the AAT made the following findings (at [12]-[16]):

In his oral evidence, Mr Polydorou said that on his return to Australia he told an officer of Centrelink that he would be making a claim for back payments. There is no independent evidence that supports this contention. The Centrelink record of contacts includes an entry for 31 January 2012, which is only three days after Mr Polydorou’s return to Australia. That record contains only details of Mr Polydorou’s second claim for DSP which was granted as a result of this claim. There is no record of any part of the conversation which may have had a bearing on the decision to cancel his earlier DSP payments.

Mr Noonan contends that there are no documents on record before 20 December 2012 to indicate that Mr Polydorou asked for a review of the cancellation decision. He submits that the first claim for review of the cancellation decision was that recorded on 20 December 2012.

From the evidence I am satisfied that Mr Polydorou’s earliest request for a review of the original decision was made on 20 December 2012 and I find accordingly. As this is more than 13 weeks after the notice of the original decision, section 109(2) of the Administration Act applies. This section provides that the determination in favour of the applicant takes effect on the day on which the application for review was made. In Mr Polydorou’s case that is 20 December 2012. This means that the earliest date from which Mr Polydorou can receive the DSP payments resulting from his original DSP claim is 20 December 2012.

This finding does not assist Mr Polydorou as his DSP payments from his second claim commenced on 31 January 2012. However, my finding affirms the decision of the SSAT that Mr Polydorou is not entitled to be paid DSP for the period between 4 January 2011 and 27 January 2012.

For completeness, even if I were to accept, which I do not, Mr Polydorou’s oral statement that he told Centrelink of his intention to claim back payments immediately after his return to Australia, the date of effect of such a finding would be 31 January 2011. As Mr Polydorou began receiving the payments from his second DSP claim from the same date, such a finding would be of no benefit to Mr Polydorou.

(Emphasis added.)

25        I note the reference at the end of this extract of the AAT’s reasons to 31 January 2011 is clearly mistaken. The AAT should be taken to mean 31 January 2012.

THE NOTICE OF APPEAL

26        In the space provided for him to identify a question of law arising on the appeal, the applicant has handwritten:

I believe the Adm Appeals Tribunal didn’t take into account my especially circumstances.

27        In the space provided for him to identify the grounds arising on that question of law, the applicant has handwritten:

The grounds is that I were overseas due to my helth situation. The Centralink have made decision to allow me to transfer my disability support pension overseas. I didn’t receive notice from centralink.

28        Properly, the Secretary’s written submissions accepted that, although not precisely stated, the notice can be said to raise a question of law whether the AAT had failed to take into account relevant considerations, namely his particular circumstances as he identifies them in the grounds. These include his reason for being unable to return home, and that he had no actual notice that Centrelink proposed to stop his portability payments.

29        I am satisfied that, when the notice of appeal is read fairly and in context in the sense I have explained in relation to self-represented litigants in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [73]-[77], this appeal is an appeal on a question of law for the purposes of s 44 of the AAT Act.

THE PARTIES’ SUBMISSIONS

30        The applicant filed written submissions in accordance with directions made by the Court on 22 August 2014. The submissions were made in the form of a letter to the Court, as follows:

I, Mr Evangelos Polydorou the applicant writing to you this letter that my DSP payment was cancelled during my stay in Cyprus. On 5th of Oct 2011, I been reported to the Centerlink verbally. I will be overseas

I was suffering a serious exacebation of psychological illness and have severe depression and couldn’t get the usual medication in cyprus. My situation was completely detoriorate to return back. On that time I couldn’t advise the Centrelink about my situation when I was in cyprus. I was not aware of the cancellation of DSP and didn’t received any notice from the Centrelink.

Reviewing the date on 20th of December 2012 I disagree because I claim to the Centre Link on 31st of January 2012 on my return.

I’m permanently in disability and my financial status, I owe so many credit to the bank. I need support.

I believe that the decision of the tribunal of administrative appeals should review my for my circumstances. …

31        The applicant appeared for himself on the hearing of the appeal, and was assisted by an interpreter in the Greek language. He sought leave to file a further handwritten letter in Court, which annexed a number of documents, all of which were medical records. The respondent had no objection to the bundle being filed in Court and treated as evidence in the appeal. The additional submission gave some background evidence about the applicant’s medical and psychiatric conditions, and what he said had caused them. It also recited some earlier history of his contact with Centrelink and repeated some matters on which he gave evidence to the SSAT and the AAT. The second letter concluded:

I belive due to my severe mental health contition and the phycical injurys the centreling should review the decision and as cyprus social services didn’t spop my disability payments centreling should pay my disability pension and help my very bad Financial situation problem I am in now.

32        The Secretary submits that, having made a factual finding that the date the applicant first sought review of the adverse decisions was 20 December 2012, being a date more than 13 weeks after the applicant was deemed to have been notified of the decisions, the AAT had no option but to find that the applicant could not receive payments for the period 4 January 2011 to 27 January 2012.

33        The Secretary submits the AAT did take into account the considerations relevant to whether the SSAT decision under review was the correct or preferable one. The applicant’s reasons for not returning to Australia, while relevant to the SSAT’s finding about the portability period, were not relevant to the date of effect of any favourable determination, nor was the applicant’s impression that his payments would continue beyond the statutory 13-week portability period. Further, the respondent submits, whether the applicant had actual notice of the decisions of 4 January 2011 and 5 April 2011 was not relevant to the AAT’s consideration, by virtue of the operation of the deeming provision in s 237 of the Administration Act. The fact that the AAT made no explicit findings about the deeming effect of s 237 is not to the point, the respondent submits. The AAT needed only to find (as it did) that the date at which review was sought (in this case, 20 December 2012) was outside the 13-week period prescribed in s 109.

CONSIDERATION

34        It is not difficult to understand the applicant’s bewilderment at the effect of a deeming provision such as s 237 of the Administration Act. Where continued access to social security payments depends on seeking review upon notification of an adverse decision, it is difficult for a person in the applicant’s position to understand how a legal fiction that he had notice of the adverse decision is allowed by the law to operate to his detriment. Nevertheless, that is what the Administration Act provides, for reasons no doubt related to consistent and predictable administration of the legislative scheme for social security payments.

35        As the applicant points out, he had told Centrelink before he left for Cyprus that he was going away. The evidence before the AAT, of a Centrelink record of a conversation between the applicant and Centrelink officer on 4 October 2010, reveals the following (without reproducing the applicant’s personal information):

Customer has been living in [home address], not [address]. Checked ADH screen and customer’s home address was only updated to [home address] from the 19/02/07. Customer will be leaving to go overseas tomorrow on the 05/10/10 and would like to have DSP assessed.

…

Customer will be leaving for Cyprus 05/10/10 and will be possibly gone for 3 months. Customer’s contact tel no in Cyprus is [telephone number] and staying [name of village] CYPRUS. Customer does not have a mobile number. Number on system is current.

…

36        In that context, for the applicant to say that it is unfair for Centrelink to be able to send him notification of cancellation of his pension by post to his residential address in Australia when he had informed a Centrelink officer he would not be there is, from his perspective, an understandable submission. The applicant conceded he had not made any arrangements to have his mail forwarded, nor for any one to collect it. Nevertheless, I accept he has a genuine sense of unfairness about how the Administration Act operates in this respect.

37        I sought assistance from the Secretary’s legal representative about the manner in which the Administration Act provides for a person to change her or his address, for the purposes of the operation of s 237. Given that the applicant was self-represented and suffers from several disabilities, including psychiatric disabilities, I consider it appropriate that I be satisfied it is not possible to construe what occurred on 4 October 2010, as recorded in the evidence I have set out at [35] above, as a change of address by the applicant.

38        In compliance with that direction, on 26 September 2014 the respondent sent a short note to the Court. It notes that the general obligation for recipients of social security payments to notify Centrelink of a change of circumstances that might be material to their payment, provided for in s 66A, was not inserted into the Administration Act until 4 August 2011, after Mr Polydorou had left Australia. In 2013, the High Court found that, at least in the context of the Criminal Code Act 1995 (Cth), s 66A of the Administration Act did not operate to impose duties on payment recipients retrospectively: Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20. The respondent’s note advises that, prior to the enactment of s 66A, the obligation to advise of change of circumstances was imposed via ss 67-71 of the Administration Act, which required recipients of certain categories of benefits to provide information on change of circumstances in response to notices issued to them by the Secretary.

39        The respondent’s note makes no submissions about whether there were, on the evidence before the AAT, any notices issued by the Secretary to the applicant that might have engaged these provisions. In any event, these provisions go to the obligations placed on a person to notify Centrelink of a change of her or his circumstances, rather than the formal requirements imposed by the social security law on persons wishing to notify Centrelink of a change of her or his address. On this question, the respondent stated

there are no separate legislative provisions relating to what does or does not constitute providing advice of a change of address, or how advice of a change of address should be given to the Department.

40        Section 237(1)(c) provides that notice is deemed to have been given when it is sent to the postal address of the person “last known to the Secretary”. The Centrelink record set out at [35] above discloses that the applicant notified Centrelink that he would be in Cyprus for possibly up to three months, and provided a new contact telephone number. He also advised Centrelink of the name of the village in which he would be staying. However, I am not satisfied that information is sufficient to constitute a “postal address”, such that this conversation could be said to have constituted a change of postal address so as to render the notice sent to him on 4 January 2011 incapable of activating the deeming provision in s 237(1)(c).

41        That question aside, the resolution of the question of law on the appeal, unfortunately for the applicant, must be answered against him.

42        The AAT took into account so much of the applicant’s circumstances as it was required to do to answer the only question before it, following on from the SSAT’s exercise of the discretion conferred by s 1218C favourably to the applicant. The only question before it was the effective date for the extension of the portability period..

43        The only aspect of the applicant’s circumstances which was relevant to the AAT’s task on review related to when he made his application for review of Centrelink’s cancellation decision.

44        The terms of s 109(2) are clear in their specification of the effective date as the date on which the “application for review” was made. There is no basis in the AAT’s reasons to find the AAT misunderstood or misconstrued s 109(2). To the contrary it adopted the obviously available and correct construction.

45        It then made a finding of fact on the evidence that it preferred to rely on Centrelink’s records to ascertain when the review application was made. It was entitled to prefer those records over the applicant’s oral evidence about an earlier conversation with a Centrelink officer.

46        It must be said that the applicant’s oral evidence to the AAT that he had a conversation with a Centrelink officer about making a claim for back-payments was the highest his evidence went. His own evidence was that this conversation occurred on his return to Australia in late January 2012. The AAT and the respondent correctly pointed out that, even if his evidence had been accepted, this would not in practical terms deliver any different outcome to the applicant because in fact he received disability support payments from 31 January 2012, as a result of his prompt and successful application on returning to Australia.

47        Be that as it may, the AAT was entitled to make the finding of fact which it did. It did not fail to take account of the applicant’s particular circumstances, to the extent it needed to in order to perform the limited task on review of determining the date the applicant applied for review of Centrelink’s cancellation decision.

CONCLUSION

48        The appeal must be dismissed. The Secretary’s legal representative informed the Court that the Secretary sought costs on the usual basis if the appeal were to be dismissed.

49        I am reluctant to order costs against the applicant. It appeared to me from some of his statements during the conduct of the appeal that he did not appreciate the limited jurisdiction of this Court. He made a statement to the effect that had he known the limits of its jurisdiction he would not have appealed. I have no reason to doubt that statement. The applicant has conducted himself properly during this appeal and has respected the Court’s timetabling and orders. He seemed to me mistakenly to believe the Court could remedy any unfairness he could persuade the Court existed in the AAT’s decision.

50        In the circumstances, I propose to direct the respondent to file an affidavit deposing to the amount the Secretary seeks by way of legal costs again the applicant, and how that sum is made up. I will then consider further whether to make a costs order against the applicant, including whether to make a costs order specifying a particular figure.

Associate:

Dated:    3 October 2014