Anyone who has called our Worker Helpline wanting to appeal a Centrelink decision will know that one of the first things we advise about is time limits. It’s essential to be aware of applicable time limits because they can have a significant impact on your entitlement to back pay and right to appeal further, and it’s our job to let you know.
The case of Hodges-Fong and Secretary, Department of Social Services (Social services second review) [2022] AATA 3102 (23 September 2022) demonstrates the importance of time limits in regards to entitlement to back pay.
Background
The applicant, who we will refer to as HF, lodged an application for the Age Pension on 11 April 2019. On 24 August 2019, Centrelink rejected her application and sent her a letter advising of this decision.
HF stated she never received this letter and contacted Centrelink on 24 April 2020 about the status of her claim. As her application had been rejected, Centrelink logged this contact as a review request (internal review).
An internal review affirmed the decision to reject her Age Pension application on the basis that she did not respond to a notice for further information.
On appeal, the Administrative Appeals Tribunal (Social Security and Child Support Division) (‘AAT SSCSD’) decided that the basis for rejecting her application was incorrect as she had provided further information as requested by Centrelink.
The AAT SSCSD remitted the matter back to Centrelink to re-assess her eligibility and determined that HF was to be back paid from 24 April 2020 (the date Centrelink entered the review request). Centrelink granted her Age Pension application and paid her from the 24 April 2020.
HF appealed to the Administrative Appeals Tribunal (General Division) (‘General Division’) as she believed she was entitled to back payment from the date she lodged her claim on 11 April 2019.
The decision
1. Did Centrelink notify HF of the decision to reject her Age Pension claim?
The General Division explained that under section 237 of the Social Security Administration Act 1999 (‘the Administration Act’) “if a notice of decision is sent by prepaid post to the postal address of the person last known to the Agency, then 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 pose unless the contrary is proved. A similar provision can be found in Section 29 of the Acts Interpretation Act 1901 (Cth).”
The General Division also noted that previous tribunal decisions have determined that notice is considered given “provided the letter was correctly addressed and posted…even if the Tribunal were satisfied that the Applicant did not actually receive the notice.”
2. On what date did HF request an internal review?
HF’s contact with Centrelink on 24 April 2020 was the first contact she had with them since July 2019. She detailed to the General Division her personal circumstances which became barriers to her following up with Centrelink prior April 2020. As such, she did not suggest she had requested a review prior to this date either. The General Division determined a review was to be taken as requested on 24 April 2020, which was more than 13 weeks after the notice of rejection.
3. What date can HF be paid Age Pension from (to determine any entitlement to back pay)?
Section 107(3) of the Administration Act states that if someone requests a review of a decision to reject their payment application more than 13 weeks after they have been notified of that decision, and the review results in a decision to grant their claim, then they can only be back paid from the date they requested the review.
Ultimately, the General Division decided that HF was deemed to have been notified of the decision to reject her Age Pension application by way of the letter dated 24 August 2019. Because she had been notified of the rejection decision, and she requested a review more than 13 weeks after being notified, she could only be back paid to the date she requested the review – 24 April 2020.
The Tribunal noted in their reasons that the legislation provided no discretion to backpay HF further than this date.
Why is this AAT General Division decision important?
Time limits apply at each stage of the appeal process. Complying with time limits preserves entitlement to back pay should someone be successful in their appeal.
Appealing Centrelink decisions can also take a long time – sometimes up to 18 months or more. This can make complying with time limits confusing. HF didn’t request an internal review of the decision to reject her payment application within the strict time limits. As a result, she missed out on approximately 12 months back pay from April 2019 to April 2020.
You can still appeal most decisions outside the strict time limits, however it is important to note that you will only be back paid from the date you requested the appeal – as was the case for HF.
Time limits don’t just apply to decisions about payment applications. Time limits apply to almost all decisions Centrelink make about someone’s social security entitlement, including but not limited to cancellation, suspension and variation. There are no time limits to appeal a decision about a debt to an internal review, but time limits do apply once at the AAT.
Finally, this decision addresses an equally important issue regarding notice of decisions. If the letter is correctly addressed and posted, or sent to MyGov, then it is considered received unless it can be proven otherwise. As this decision demonstrates, proving otherwise is not an easy thing to do.
If you are awaiting a decision by Centrelink it is important to regularly follow up with them, check your Centrelink App or MyGov account. Doing this will help to prevent missing important time limitations.
Resources
For more information on applicable time limits for different types of Centrelink payments, take a look at the table at the end of Economic Justice Australia’s fact sheet ‘Appealing a Centrelink decision’ available on our website here.
If you need information or advice about a decision Centrelink have made, then please contact our Legal Assistance Line on (03) 9481 0355 or Worker Helpline on (03) 9481 0655.
