ALEX LONGSTAFF and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 413
•4 July 2012
[2012] AATA 413
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0994
Re
ALEX LONGSTAFF
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 4 July 2012 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
Catchwords
SOCIAL SECURITY – newstart allowance – advance payment – no entitlement to advance payment within 12 months of previous advance – no discretion to consider questions of fairness or special circumstances – decision affirmed
Legislation
Social Security Act 1991, ss 23(1), 1061A(3), (4), (5)
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President
4 July 2012
INTRODUCTION
The applicant has asked this Tribunal to review a decision of the Social Security Appeals Tribunal (“SSAT”) made on 28 February 2012.
The SSAT decided to affirm a decision made on 1 February 2012 by an Authorised Review Officer of Centrelink. Centerlink had decided that Mr Longstaff was not entitled to an advance payment of his newstart allowance as he had received an advance payment in the previous 12 months.
THE ISSUE
The principal issue to be determined by the Tribunal is whether the applicant is entitled to be paid an advance payment of newstart allowance following his request of 23 January 2012.
THE LAW
Part 2.2 of the Social Security Act 1991 (“the Act”) sets out the rules relating to advance payments of social security entitlements. Newstart allowance is such an entitlement (see s 23(1) of the Act).
Section 1061A(1) of the Act states the general circumstances in which a person may qualify for an advance payment of their social security entitlement. It is not in dispute that Mr Longstaff satisfies the requirements in that subsection of the Act.
Although a person may satisfy the general requirements for entitlement to an advance payment they may nevertheless be disqualified from receiving such a payment.
Section 1061A(3) of the Act sets out several disqualifying factors when a person is receiving an age pension, disability support pension, carer payment or widow B pension. That sub-section does not apply in this case.
However section 1064A(4) does apply here as Mr Longstaff was receiving a form of social security entitlement not covered by section 1061A(3) of the Act. Sub-sections (4), (5) and (6) provide as follows:
“Disqualification—other social security entitlements
(4) A person is not qualified for an advance payment of a social security entitlement not covered by subsection (3) if:
(a) the maximum amount of advance payment to which the person would be entitled under Division 4 is less than $250; or
(b) the person has received an advance payment, or an instalment of an advance payment, of a social security entitlement and has not fully repaid the advance payment; or
(c) the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed; or
(d) the person owes a debt to the Commonwealth (whether arising under this Act or not) that is recoverable under Part 5.2 by means of deductions from the person’s social security payment.
Note: Paragraph (a) does not prevent payment of an advance payment in instalments of less than $250.
(5) Paragraph (4)(c) does not apply to a person:
(a) who is receiving a pension PP (single); and
(b) who applies for an advance payment within the period of 28 days after ceasing to be a member of a couple.
(6) Paragraph (4)(d) does not apply to a person if:
(a) the debt the person owes to the Commonwealth arose as a result of the person’s parenting payment rate changing from benefit PP (partnered) to pension PP (single); and
(b) the amount of the debt is smaller than the amount of advance payment to which the person would be entitled under Division 4”.
Sub-section (5) is not relevant to this case as Mr Longstaff was receiving newstart allowance and not parenting payment (single).
IS THE APPLICANT ENTITLED TO RECEIVE A FURTHER ADVANCE?
Mr Longstaff has been in receipt of newstart allowance since 12 November 2007.
It is not in dispute in these proceedings that he received a lump sum advance of $500.00 on 27 July 2011 and the Tribunal so finds.
On 23 January 2012 Mr Longstaff telephoned Centrelink requesting a further advance payment of newstart allowance. As indicated in the SSAT decision he said he urgently needed the advance to pay for fines he had incurred.
Mr Longstaff’s difficulty is that, in accordance with section 1061A(4)(c) of the Act, he is not entitled to be paid a further advance until a period of 12 months has elapsed from the date the previous advance was paid.
Mr Longstaff was therefore disqualified from being paid a further advance until 27 July 2012.
CONCLUSION
The Tribunal is bound by the provisions of the Act. There is no discretion in the Act or elsewhere allowing the Tribunal to consider questions of fairness or special circumstances.
The meaning of section 1061A(4)(c) is clear. Until a period of 12 months has elapsed since the date of an earlier advance a recipient of newstart allowance has no entitlement to a further advance. As Mr Longstaff had been paid an advance on 27 July 2011 he was not entitled to a further advance when he made his request on 23 January 2012.
DECISION
The decision under review is affirmed.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of [Sgd Administrative Assistant]
Dated 4 July 2012
Date(s) of hearing Hearing on the papers
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