The Estate of Maria Kozak and Secretary, Department of Social Services (Social services second review)

[2015] AATA 480

The Estate of Maria Kozak and Secretary, Department of Social Services (Social services second review) [2015] AATA 480 (3 July 2015)

Division	GENERAL DIVISION
File Number	2014/6384
The Estate of Maria Kozak
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	3 July 2015
Date of written reasons	3 July 2015
Place	Canberra

The Social Security Appeals Tribunal’s decision on 12 November 2014 is affirmed.

............................[sgd]............................................

James Popple, Senior Member

CATCHWORDS

SOCIAL SECURITY — Benefits — cancellation of benefit — whether Secretary cancelled benefit in error — construction of Social Security (Administration) Act 1999, s 80 — benefit was not payable — Secretary had power to cancel payment — no discretion to vary date when payment recommenced — decision under review affirmed.

LEGISLATION

Social Security (Administration) Act 1999, s 80.

REASONS FOR DECISION

James Popple, Senior Member

3 July 2015

1. On 3 July 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. These are the written reasons for my decision. They differ from the reasons given orally only by the addition of this paragraph, and of headings. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975, that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.

   Background

2. Mrs Maria Kozak was in receipt of the age pension.  On 6 December 2012, Centrelink suspended payments of her pension.  On 14 February 2013, Centrelink cancelled those payments on the basis that she had not provided her bank account details.

3. On 17 June 2014, Mrs Kozak’s son requested (on his mother’s behalf) a review of that decision, and asked that his mother be paid the pension in arrears for the period during which she had not received it.  Centrelink treated this request as a new claim for the pension, and paid Mrs Kozak the age pension with effect from 17 June.  On 24 July, Centrelink decided that payments in arrears could not be made because Mrs Kozak had not sought review of its decision within 13 weeks.  On 29 September 2014, Mrs Kozak died.

4. Mrs Kozak’s estate applied to the Social Security Appeals Tribunal (the SSAT) for review of Centrelink’s decision.  On 12 November 2014, the SSAT affirmed the decision.  Mrs Kozak’s estate has applied to the Tribunal for review of the SSAT’s decision.

   Section 80 of the SSA Act

5. At the hearing, counsel for Mrs Kozak’s estate argued that Centrelink did not have the power to cancel Mrs Kozak’s pension. His argument turns on the proper construction of s 80 of the Social Security (Administration) Act 1999 (the SSA Act).  He conceded that, if his argument was not successful, this application must fail.

6. Section 80 of the SSA Act provides:

   80  Cancellation or suspension determination

   (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.

7. Counsel’s argument is that s 80(1) requires the Secretary to cancel a payment when paragraph (a) is enlivened, and to suspend a payment when paragraph (b) is enlivened. It does not, he says, give the Secretary the power to cancel a payment if only paragraph (b) is enlivened. He says—and I am prepared to accept—that, at all relevant times, Mrs Kozak was qualified for the pension (paragraph (a)) and that the pension was only not payable (paragraph (b)) when she had not provided her account bank details to Centrelink. It follows, his argument goes, that Centrelink did not have the power to cancel Mrs Kozak’s pension payments on 14 February 2013 because she was then qualified for the pension, even though the pension was not payable. Centrelink, he says, could only have suspended the pension.

8. I do not accept this argument. Section 80(1) in its terms requires the Secretary to cancel or suspend a payment if either paragraph (a) or (b) is enlivened. I see nothing in the scheme of the SSA Act that is inconsistent with the Secretary having the power to cancel or suspend a payment in either of those circumstances. If Parliament had intended to restrict the Secretary’s power in the way that is argued, it could easily have done so. Counsel could refer me to no authority in support of his argument.

   Conclusion

9. It follows that Centrelink had the power to cancel Mrs Kozak’s pension.  Counsel conceded that, if that were the case, I have no discretion to vary the date upon which Mrs Kozak’s pension payments recommenced.  I must affirm the SSAT’s decision.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

...............................[sgd].........................................

Associate

Dated 3 July 2015

Date of hearing	3 July 2015
Counsel for the Applicant	Mr Hugh Selby
Solicitors for the Applicant	Prail Lawyers
Counsel for the Respondent	Ms Adine Barton
Solicitors for the Respondent	Legal Services Division, Department of Human Services