Akdag and Department of Family and Community Services - [2001] AATA 912

DECISION AND REASONS FOR DECISION [2001] AATA 912

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/742

GENERAL ADMINISTRATIVE DIVISION
Re: MUSTAFA AKDAG

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member
Date:             1 November 2001
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.

(sgd) Regina Perton
Member
SOCIAL SECURITY – youth allowance – cancellation - failure to respond to request for information – recipient unaware of request - deemed receipt of correspondence – no power to backdate payments where reinstatement more than 13 weeks since cancellation
Social Security (Administration) Act 1999 s11, 13(1), 109(1), 109(2), 237
Evidence Act 1995 s160

REASONS FOR DECISION

1 November 2001 Ms Regina Perton, Member

This is an application by Mustafa Akdag (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 1 June 2001. The SSAT affirmed the decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the Department), dated 18 December 2000, to cancel youth allowance from that date. This was due to the applicant's failure to reply to a notice asking whether he intended to continue to study after December 2000. It also affirmed the decision that youth allowance granted to the applicant on 5 April 2001 could not be backdated to 18 December 2000.
The hearing of this matter took place on 7 September 2000. The applicant represented himself and his mother also gave evidence. Mr Terry Baker represented the respondent. The written material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a submission dated 5 September 2001 from the respondent.
BACKGROUND
The applicant, who was born on 5 September 1984, was granted youth allowance on 4 October 2000, shortly after his sixteenth birthday. At that time he was a full time student at Princes Hill Secondary College, as he is at present. On 20 November 2000, Centrelink sent a form to the applicant asking him if he intended to continue his studies after 17 December 2000, and if so, requesting that he provide details of that proposed study. The applicant did not respond to Centrelink's request for information. Consequently, the applicant's youth allowance was cancelled on 18 December 2000. Centrelink sent a letter to the applicant on the same day advising him of the decision and of his review rights.
On 5 April 2001, the applicant attended Centrelink's Broadmeadows office. He told staff that he had only just become aware of the cancellation after noting that youth allowance payments had not been paid into the designated bank account since late 2000, despite his continuing with his schooling. The applicant lodged a fresh claim for youth allowance and payments were resumed from 5 April 2001.
On 12 April 2001, the applicant sought review of the decisions to cancel his youth allowance on 18 December 2000 and not to backdate the freshly granted youth allowance which had commenced on 5 April 2001 back to 18 December 2000. An authorised review officer affirmed Centrelink's decision on 2 May 2001, as did the SSAT on 1 June 2001.
EVIDENCE
Centrelink's evidence
The written evidence from Centrelink included printouts from their computer system, indicating the dates and text of letters sent to the applicant. Centrelink's records indicate that a letter was sent to the applicant's home address on 20 November 2000. The individually addressed letter contained, amongst other things, instructions that if the applicant was intending to continue his studies as a full time student in the following year, he must provide certain specified details and return the form to Centrelink within 28 days of the date of the letter. Mr Baker indicated that the letter was part of a general mailout to all students at the end of the academic year.
The applicant failed to respond to that letter. As he had not provided the relevant details to Centrelink by the due date, his youth allowance was automatically cancelled on 18 December 2000. A letter, addressed to the applicant's home address, was sent on that day informing the applicant of the cancellation. It advised him to "phone or come and see us", if he thought the decision was wrong. He was also warned that if he did not ask for the cancellation decision to be reviewed within three months , back payment might not be possible.
Centrelink records indicate that following the cancellation decision the applicant did not contact Centrelink until 5 April 2001. On that day, he lodged a new application for youth allowance, providing a letter from his secondary school, indicating that he was enrolled for 2001. On 9 April 2001, the applicant was granted the youth allowance from 5 April 2001. A file note by a Centrelink officer indicates that they are "unable to restore and backdate YAL as information provided outside of 13 weeks from when YAL cancelled". On 12 April 2001, the applicant attended the Centrelink office and sought review of the decision not to backdate his youth allowance to 18 December 2000.
The applicant's evidence
The applicant told the Tribunal that he is a VCE student and that he does not have a computer at home. It had been his intention, and that of his parents, to use youth allowance to purchase a computer once sufficient funds had accumulated. The applicant said that he had not received the letter from Centrelink advising him of the cancellation. He stated that if he had known that there was a time limit of 13 weeks to challenge the decision, he would have gone to Centrelink during that period.
The applicant confirmed that the address used by Centrelink had been his home for almost all his life. Their letter box is a wooden one on a pillar in the shape of a "little house" with separate sections for mail and "junk mail". He said that the mail usually gets delivered whilst he is at school and that the letter box is usually cleared by one of his parents. The applicant told the Tribunal that he does not remember getting a form addressed to him in November 2000 asking for details of his proposed study in 2001. He said that he could not recall receiving the letter dated 18 December 2000 advising of cancellation of his youth allowance. The applicant said that if he had been aware of the cancellation letter, he would have acted on it immediately. The applicant told the Tribunal that he gets some "junk mail", such as catalogues or invitations to events which he does not always open immediately, but that he treats official mail differently.
The applicant told the Tribunal that he had discovered that youth allowance was no longer being paid when his mother went to the bank and checked the account which is in her name. The applicant went to Centrelink that same day to find out what had happened and to seek restoration of the payments.
The applicant's mother's evidence
Mrs Z. Akdag, the applicant's mother, gave evidence with a Turkish interpreter facilitating communication. The applicant's mother said that she and her husband are both pensioners. She has four children with the applicant being the youngest. She told the Tribunal that she has had dealings with Centrelink in relation to her own support payments and that of the rest of her family and that she knows the importance of fulfilling Centrelink's requests for information and of meeting timelines. She recalled the receipt of letters and forms when the applicant first applied for youth allowance during 2000, including a supplementary form as the initial application was missing some information. However, she could not recall any letters coming in addressed to her son asking him to provide information about whether he was continuing at school in 2001, or telling him that the youth allowance had been cancelled. Had she been aware of any such letters, she would have ensured that her son responded to them immediately.
The applicant's mother said that it is usually she or her husband who clears the mailbox. When a letter is addressed to her son, she does not open it but leaves it for him to open when he gets home. She said that she asks him what was in a letter addressed to him if it is an official looking letter. No one else in the family has the same initial as the applicant. The applicant's mother said that she is not aware of any other mail going astray in the sixteen years they have lived in that house. One of her neighbours did not get an important solicitor's letter two or three years ago and lodged an official complaint. She said that she kept a special bank account for the applicant, as she had for her other children. She would leave the money in the account until there was sufficient for the purpose for which they were saving. She had not checked the passbook account until early April 2001 as she had estimated that, by that time there should have been enough money for the computer purchase.
THE LEGISLATION
The Social Security (Administration) Act 1999 (the Act) sets out the administrative arrangements for claims for, and payments of, youth allowance. The pertinent provisions are:
11.         Subject to Subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
. . .
13.(1)      For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
. . .
109.(1)     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)within 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 determination embodying the original decision took effect.
(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.
. . .
237.(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.

CONSIDERATION OF THE ISSUES

The issues for consideration in this application are whether the applicant was given notice of the cancellation of his youth allowance on 18 December 2000 or, alternatively, whether his current youth allowance can be backdated to that date.
The Tribunal accepts that the applicant and his mother only became aware of the cancellation of youth allowance on 5 April 2001 when the balance in the account into which the moneys were paid was less than they expected it to be. The applicant's lack of awareness of the cancellation of youth allowance on 18 December 2000 is not sufficient of itself for a finding to be made in the applicant's favour in relation to non-receipt of the notification of the decision. Section 237 of the Act states that if notice of a decision under social security law is sent by prepaid post to the last known postal address of the affected person, notice has been given to that person "unless the contrary is proved". Centrelink's records indicate that notice of the cancellation was sent by post to the applicant at his correct address on 18 December 2000. The applicant and his mother gave evidence that they do not recall having seen that letter and the Tribunal accepts that evidence. However, they have been unable to provide any evidence that notice was not sent by Centrelink to the correct address following that cancellation. The Tribunal finds that Centrelink complied with the notice provisions required under the Act in relation to cancellation of youth allowance on 18 December 2000.
There is scope for backdating of payments to the date of original cancellation where there has been an application for review and the decision to cancel is overturned. However, s109(1) of the Act only allows for such backdating when the application for review is made within 13 weeks after the notice of decision is given. When a review application is made more than 13 weeks after notice of a decision, s109(2) specifically states that a favourable determination only dates back to the day on which the application for review was made.
In this matter, the applicant reapplied for youth allowance on 5 April 2001 and applied for review of the cancellation decision on 12 April 2001. Notice of the decision to cancel youth allowance was given on 18 December 2000. The applicant applied for review on 12 April 2001, 16 weeks after the notice of cancellation was sent. He reapplied for youth allowance on 5 April 2001, 15 weeks from the date of the notice of cancellation and was granted the allowance from that date. In the metropolitan area of Melbourne, letters are generally delivered on the next business day. Under s160 the Evidence Act 1995, postal articles sent anywhere within Australia are deemed to have been received at that address within four working days of postage. Since 18 December 2000 was a Monday, the applicant is presumed to have received the letter by Friday 22 December 2000, at the latest. This means it would still have been more than 13 weeks from notification of the cancellation decision until the applicant contacted Centrelink and applied for review. The Tribunal finds that s109(2) applies to this matter. Even if the Tribunal were to overturn the cancellation, youth allowance cannot be backdated to the date of cancellation since it was more than 13 weeks from notification of the decision to the application for review.
In relation to the cancellation of the applicant's youth allowance on 18 December 2000, the Tribunal finds that the notice provisions of s237 of the Act have been met. The applicant has not been able to prove that the notices of 20 November 2000 or 18 December 2000 were not given appropriately. The cancellation decision therefore stands.
In terms of youth allowance granted from 5 April 2001, s13(1) of the Act does not allow for the payment to be backdated any further back than the date on which the applicant contacted Centrelink in relation to the particular claim. It is undisputed that the applicant's first contact with Centrelink after the cancellation was 5 April 2001. The Tribunal finds that the applicant's current grant of youth allowance cannot be backdated beyond 5 April 2001.
DECISION
The Tribunal affirms the decision under review.
I certify that the twenty- one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Regina Perton, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  7 September 2001
Date of Decision:  1 November 2001
Solicitor for the Applicant:           Nil — self-represented
Solicitor for the Respondent:       Nil — Mr T. Baker, Advocate with Centrelink