Alexander and Secretary, Department of Employment and Workplace Relations

[2006] AATA 54

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL           № V2005/560

GENERAL ADMINISTRATIVE  DIVISION

Re:             GEORGE L. ALEXANDER

Applicant

And:          SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Mr C. Ermert, Member

Date:25 January 2006

Place:Melbourne

Decision:The decision under review is affirmed.

(sgd) C. Ermert

Member

SOCIAL SECURITY– disability support pension – applicant residing outside Australia but in Australia on 1 July 2004 – portability of pension – maximum period of payment – information from Centrelink – whether estoppel applies

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 Schedules 1A, 6

Social Security Act 1991 s 1217

Social Security (Administration) Act 1999 s 149(4)

Acts Interpretation Act 1901 s 8

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93

Minister for Immigration, Local Government and Ethnic Affairs v Buksh 26 ALD 399

Re Makris and Secretary, Department of Family and Community Services [2005] AATA 375

Re Rajcinoski and Secretary, Department of Employment and Workplace Relations [2005] AATA 1222

REASONS FOR DECISION

25 January 2006Mr C. Ermert, Member

INTRODUCTION

1.       Mr Alexander arrived in Australia in 1980 and commenced employment.  In October 2000, as a result of a medical condition, he was granted a Disability Support Pension (DSP).  He returned to Romania in 2001, and again in 2002, but on each occasion came back to Australia for medical treatment that was not readily available in Romania.  On 15 March 2003 Mr Alexander departed Australia permanently to live in Romania with his family.  In May 2003 (T6) Mr Alexander was advised by Centrelink that he had been classified as severely disabled.  At that time this classification meant that his DSP could be paid indefinitely while he was overseas.

2.       Mr Alexander subsequently received a letter from Centrelink dated 29 March 2004 (T7) which advised him of changes to the Social Security legislation to apply from 1 July 2004.  These changes would shorten to 13 weeks the length of time that DSP could be paid while he was overseas.  The letter stated that the new rules would not apply to him until he returned to Australia.  However, Mr Alexander found the letter confusing and sought further clarification.  He had the letter translated for him, he consulted the staff at the Australian Consulate and on 30 April 2004 he telephoned the International Centrelink Line (T8).  As a result of his understanding of these conversations, Mr Alexander decided to return to Australia; which he did on 9 May 2004.

3.       On his return Mr Alexander contacted the Centrelink office at Prahran to clarify the letter of 29 March 2004.  He contends that he was told that if he then went back to Romania he would be entitled to DSP for only 13 weeks.  As a result he did not return to Romania but stayed in Australia.  In fact, Mr Alexander could have left Australia before 1 July 2004 and retained the unlimited portability of his DSP.  Mr Alexander does not want to live in Australia.  His disability prevents him from working.  He would prefer to live with his family in Romania but he can not afford to lose his DSP.

4.       Mr Alexander requested a review of the decision to cancel his DSP after 13 weeks if he were to live overseas.  An Authorised Review Officer (ARO), in a decision dated 8 September 2004 (T16), decided that the decision to cancel the DSP after a period of 13 weeks in the event that Mr Alexander decided to leave Australia was correct.  Mr Alexander appealed this decision to the Social Security Appeals Tribunal (SSAT).  On 30 May 2005 the SSAT affirmed the decision of the ARO.  That decision is the subject of this application.

THE ISSUES

5.       The relevant legislation is the Social Security Act 1991 (the Act) which was amended by the Family and Community Services and Veterans Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (the Amending Act). Clause 12 of Schedule 6 of the Amending Act amended s 1217 of the Act to provide that the maximum portability for a DSP recipient is 13 weeks unless that person meets the qualifying circumstances, including suffering from a terminal illness. Clause 19 of the Amending Act introduced s 135 to Schedule 1A of the Act which provides a saving provision if a person is receiving a DSP and is absent from Australia at the commencement of the Schedule.  Clause 20(1) of Schedule 6 provides that the new provisions apply to any absences from Australia that start on or after 1 July 2004.

6.       In this case there is no dispute that Mr Alexander is a DSP recipient who has been classified as severely disabled.  Further, there is no contention that Mr Alexander is suffering from a terminal illness.  There is also no dispute that MrAlexander was physically present in Australia on 1 July 2004.  Therefore, he clearly does not meet the saving provision of s 135(1) which requires the person to be absent from Australia at the commencement of this clause, namely 1 July 2004.  The main point of contention in this case is whether the legislator intended that a person who was present in Australia on 1 July 2004 for a short stay would lose their unlimited portability pension rights.  This is a matter of interpretation of the Amending Act.

7. There is no dispute that prior to his return to Australia on 9 May 2004 Mr Alexander had the benefit of unlimited portability of his DSP. As he was in Australia on 1 July 2004 the effect of the Amending Act is to reduce that portability to 13 weeks. This raises a second point of contention, namely, whether, under the provisions of s 8 of the Acts Interpretation Act 1901, his benefit or accrued right can be taken away without clear intent expressed in the legislation.

8.       A further issue is whether the respondent is estopped from asserting that Mr Alexander’s pension entitlement has been reduced from a life entitlement to 13 weeks as a result of representations made by Centrelink staff providing Mr Alexander with incorrect advice.

9.       Mr Kistler of counsel represented the applicant.  In his submission Mr Kistler also contended that the respondent was in breach of its duty of care in providing incorrect advice to the applicant.  Had it not been for that incorrect advice Mr Alexander would not have been in Australia on 1 July 2004 and he would have retained the unlimited portability of his DSP.

10.Thus the issues in this matter are:

·Has the respondent incorrectly interpreted s 135(1) of Schedule 1A of the Amending Act?

·Do the provisions of the Acts Interpretations Act 1901 preserve an accrued right of unlimited portability?

·Should the respondent be estopped from applying the 13 week limit? and

·Was the respondent in breach of a duty of care?

11.     The standard of proof for the consideration of these issues is on the balance of probabilities.

HAS THE RESPONDENT INCORRECTLY INTERPRETED S 135(1) OF SCHEDULE 1A OF THE AMENDING ACT?

12.     In his written submissions Mr Kistler, for the applicant, stated that Mr Alexander returned to Australia on 9 May 2004 in an attempt to clear up the uncertainty in relation to his future entitlement to a DSP pension and with no intention of permanently residing in Australia.  He contended that:

The legislator could not have intended that a person who satisfies s 135(1) and enters Australia on 1 July 2004, for a short temporary stay, would lose their unlimited portability pension rights.  The reading of the entire section could not have intended to abrogate the substantial rights of the applicant.

13.     Mr Zita, a Centrelink advocate representing the respondent, argued in the Secretary’s Statement of Facts and Contentions that the savings provisions of Schedule 1A, clause 135 are clear in their meaning.  He stated:

…only those customers who were absent from Australia, ie, physically not in Australia – and who return thereafter for a limited period of time are meant to be saved.  ‘Absent’ has a clear and unambiguous meaning, ie, not physically present.  If a customer was in Australia on 1 July 2004 then the savings provisions do not apply in any circumstance.

The Explanatory Memorandum accompanying the Amending Act refers to the savings provision in new clause 135 of Schedule 1A for ‘severely disabled’ Disability Support Pension customers.  It clearly refers to a Disability Support Pension recipient with unlimited portability being absent from Australia on 1/7/04 for this clause to apply.  If Parliament’s intention was to allow all such customers to be ‘saved’ from the new limitations then there would have been no need to include this restriction.

14.     The relevant section of the Second Reading Speech for the Amending Act states:

From 1 July 2004, the allowable period of temporary overseas absence for portable social security payments will be reduced from 26 to 13 weeks.  The changes will apply to absences from Australia on or after 1 July 2004. The new portability period will … apply to disability support pension.  However it will be possible to grant unlimited portability to a severely disabled disability support pensioner who returns overseas after a short visit to Australia. (p 23)

15.     There is no lack of clarity in regard to the reduction of portability for disability support pensioners to 13 weeks for absences from Australia on or after 1 July 2004.  The possibility of a grant of unlimited portability is subject to additional comment in the Explanatory Memorandum to the Amending Act.  The relevant sections state:

Schedule 6 amends the Social Security Act to reduce the allowable period of temporary overseas absence for portable social security payments from 26 to 13 weeks. The new portability period will apply to disability support pension (DSP) without distinction … although there will be capacity to grant an unlimited portability period to a severely disabled disability support pensioner in defined circumstances.

….

These rules are amended to reduce to 13 weeks the maximum portability period for those social security payments that are currently portable for 26 weeks.  The exception is DSP for a severely disabled person which currently has unlimited portability.  Under the new rules, DSP will be portable for up to 13 weeks although there will be capacity to determine unlimited portability for severely disabled people with a terminal illness (emphasis added) (p 38).

16. This restriction of the exception to those people with a terminal illness is matched by the wording of the amended s 1218AA(1) of the Act which provides that the Secretary may determine an unlimited period of portability for a person who is terminally ill.

17.     In a further clarification of the intent of the amendments the Explanatory Memorandum states:

These amendments are intended to encourage people who are workforce age and on income support payments to remain in Australia and be available to contribute through employment or social participation (p.39)

18. In considering the relevant sections of the Second Reading Speech and the Explanatory Memorandum I find them to be entirely consistent with s 135(1) of Schedule 1A of the Amending Act and with s 1218AA(1) of the Act as interpreted by the respondent. Accordingly, I find that there has been no incorrect interpretation or application of the provisions of those Acts.

DO THE PROVISIONS OF THE ACTS INTERPRETATIONS ACT 1901 PRESERVE AN ACCRUED RIGHT OF UNLIMITED PORTABILITY?

19. Mr Kistler referred to s 8 of the Acts Interpretation Act 1901 and contended that the applicant’s right to an unlimited portability disability pension can not be taken away without a clear intent expressed in the legislation.

20. With respect to accrued rights, s 8 of the Acts Interpretation Act 1901 provides:

8         Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears (emphasis added) the repeal shall not:

(a)…

(b)…

(c)Affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed: …

21.     In his reasons for decision in Re Makris and Secretary, Department of Family and Community Services [2005] AATA 375, Senior Member Allen discussed, in considerable detail, the question of accrued rights and the application of s 8 of the Acts Interpretation Act 1901 in a similar situation. He found:

In my opinion, s 8 has no application in this matter as the amending act has expressed a contrary intention. … The Applicant has no accrued right and the period during which Disability Support Pension can be paid whilst he is overseas is that period mandated by the Social Security Act 1991 at the time of the decision under review.

22.     I consider that the relevant circumstances of this matter are substantially the same as those in Makris; and therefore I adopt the same reasoning as Senior Member Allen in regard to the issue of accrued rights. Accordingly, I find that Mr Alexander has no accrued rights resulting from the provisions of s 8 of the Acts Interpretation Act 1901.

SHOULD THE RESPONDENT BE ESTOPPED FROM APPLYING THE 13 WEEK LIMIT?

23.     Mr Kistler’s submission on this issue was that:

In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR at p.93, Gummow J stated that where there is no question of illegality or ultra vires, estoppel may be raised in respect of the exercise of statutory discretion only at the operational level rather than at the planning or policy level (p.115)(sic).  The applicant contends that he acted to his detriment by reliance on representations made by Centrelink.  Ryan J at p.101 referred to a case where the corporation by its engineer stated that permission for the use of land as a builder’s yard was not in fact and law required, which was mistaken.  The council was estopped from denying that it had exercised its discretion in the manner it said it had done.

24.     Closer examination of the decision by Ryan J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 shows that the matters referred to on p.101 relate to cases involving the exercise of a discretion. This case is distinguished from the matters referred to by Ryan J in that there is no question of the exercise of a discretion by the respondent. The only possible discretion available to the Secretary is contained in the provisions of s 1218AA(1) which would require Mr Alexander to have a terminal illness. He does not have a terminal illness; therefore there is no avenue for the exercise of discretion.

25.     On the issue of discretion Mr Zita referred, in the Secretary’s Statement of Facts and Contentions, to the Full Federal Court decision in Formosa and Kurtovic that rejected the notion that a decision was invalid because of estoppel.  Mr Zita continued:

…The decision as to the applicant’s portability entitlement is to be determined by an application of the law, and does not involve the exercise of a discretionary power.  There is simply no choice in this matter.  It is a matter of applying the law, without the use of discretion, and in this respect estoppel clearly has no role to play whatsoever.

26.     Mr Zita further submitted:

In the alternative, if it is accepted the Respondent’s actions caused Mr Alexander to act to his detriment, it is the Secretary’s contention that, in relation to administrative law, the doctrine of estoppel firstly cannot operate so as to prevent or hinder the formation or alteration of government policy, and secondly, that a public body cannot be prevented or hindered by the doctrine of estoppel from performing its statutory duties.

27.     A similar issue of estoppel was raised in Re Rajcinoski and Secretary, Department of Employment and Workplace Relations [2005] AATA 1222. In that case Senior Member Friedman, referring also to Kurtovic and Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, found:

In any event, Mr Rajcinoski’s submission that the respondent is estopped from limiting the portability of his DSP is misconceived.  The principle of estoppel has no application in matters that involve the determination of a person’s rights, instead of the exercise of a statutory discretion.  As Davies and Gummow J held in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at p.125, estoppel by representation cannot extend the authority of the decision-maker beyond that given by the statute.  Similarly, in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, Gummow J observed at page 208:

As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament.  Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.

Therefore, regardless of any advice or information Mr Rajcinoski received from Centrelink, the Tribunal is required to decide this application in accordance with the relevant provisions of the Social Security Act.

28.     I consider that the relevant circumstances of this matter are substantially the same as those in Re Rajcinoski; and therefore I adopt the same reasoning as Senior Member Friedman in regard to the issue of estoppel.  Accordingly, I find that in this case the respondent is not estopped from applying the 13 week limit.

WAS THE RESPONDENT IN BREACH OF A DUTY OF CARE?

29.     Mr Alexander’s evidence was that he telephoned Centrelink from Romania on 30 April 2004 to clarify the letter sent to him on 29 March 2004 (T7 p17).  During that conversation he was told if the letter says you have to come back, you have to come back.  As a result of that advice Mr Alexander returned to Australia.  On 10 May 2004, after his return, Mr Alexander telephoned the Prahran Centrelink office where he was told that the letter did not apply to him but if you go back to Romania now, you will only be entitled to DSP for 13 weeks.  On the basis of this advice Mr Alexander did not return to Romania and as a result he was still in Australia on 1 July 2004.  Mr Kistler submitted that this constituted a breach of duty of care by the respondent.

30.     In support of this contention, Mr Kistler referred to  Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399 in which the Federal Court upheld an appeal against the decision of Einfeld J. One of the grounds upon which the primary judge had set aside the decisions refusing the applications for an extended entry permit was that the respondent was supplied with inappropriate forms, manifesting a breach of the Department’s duty to take reasonable care to give correct information.

31.     In the Secretary’s Statement of Facts and Contentions, Mr Zita did not accept that Mr Alexander was given erroneous information which influenced his decisions to return to Australia and then to remain in Australia on the date of 1 July 2004.

The letter sent to Mr Alexander on 29 March 2004 advising of the changes from 1 July 2004 (T7 p17) refers to people who are outside Australia on 1 July 2004 and returning to Australia on or after this date.  The record of Mr Alexander’s conversation with a Centrelink officer on 30 April 2004 (T8 p18) clearly indicates the changes from 1 July 2004 were explained to him and that he indicated he would be returning to Australia permanently (with only short returns to Romania).  The record of conversations with Mr Alexander on 12 May 2004 (T11 p21 & T12 p22) provide conflicting information.  The record of conversation on 25 June 2004 (T13 p23) also suggests Mr Alexander was provided with correct information.  The record of the conversation clearly refers to portability of his Disability Support Pension after 1 July 2004.  At no time did Mr Alexander indicate he was to return to Romania prior to 1 July 2004.

32.     The only written advice given to Mr Alexander was the letter of 29 March 2004 (T7 p17). It states:

Social Security and Family Assistance legislation will change from 1 July 2004.  The length of time that most Australian payments, including Disability Support Pensions, can be paid whilst overseas will be shortened to 13 weeks.

If you are already outside Australia on 1 July 2004 the new rules will not apply to you until you return to Australia.  …

A further change to the legislation from 1 July 2004 provides that your payment may be suspended or cancelled while overseas if you do not notify Centrelink of your overseas absence.

If you are thinking about travelling on or after 1 July 2004 you must call Centrelink International Services Line to find out how these changes will affect your payment.

This letter is for information only

33.     The first paragraph provides a brief explanation of the changes to be effected.  The second paragraph is a clear statement that the changes will not apply to persons outside Australia on 1 July 2004 until they return to Australia.  The remainder of the letter is not as clear. However, the only advice offered is to contact Centrelink if a person is thinking about travelling on or after 1 July 2004.  I find that there is no incorrect advice contained in this letter that could be considered to have influenced Mr Alexander to return to Australia.

34.     In regard to Mr Alexander’s telephone conversations with Centrelink staff I find the evidence to be conflicting.  The Centrelink records of the conversations are at variance with Mr Alexander’s account of the conversations.  There is no way in which the discrepancy can be resolved with the material available from the hearing.

35.     To assist in determining the issue I had regard to the decision in Minister for Immigration, Local Government and Ethnic Affairs v Buksh 26 ALD 399, raised by Mr Kistler, where the Federal Court found:

In particular, there was no evidence, beyond his statement … as to what was said in any conversation he may have had with any such officer.  There is thus no satisfactory basis upon which to conclude that the officer gave incorrect or inadequate advice to the respondent concerning the course which he should follow.   (p.404)

36.     With similar reasoning to that in Buksh, I consider the conflicting evidence in this case to be an unsatisfactory basis upon which to conclude that Centrelink gave incorrect or inadequate advice to Mr Alexander.

37.     In regard to the question of duty of care, I refer again to the matter of Re Makris.  In his reasons for decision Senior Member Allen stated:

I reject the submission that Centrelink has a general duty of care to welfare recipients over and above its duty to administer social welfare legislation in accordance with law and impartiality.  In particular, I reject any suggestion that Centrelink is in some manner or form a legal, financial or other adviser to welfare beneficiary.

38.     This finding accords with the Federal Court in Buksh where their Honours found:

In this regard we agree with what was said by Davies J when considering a similar question in Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211.  At 212, his Honour said:

“In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed.  But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made”.

39.     The circumstances of this case are essentially the same as in Makris and similar to Buksh.  Accordingly, I adopt the same reasoning and reject the submission that the respondent was in breach of a duty of care.

DECISION

40.     The issues in this case were:

·Whether the legislators intended an outcome as has occurred in the case of Mr Alexander?

·Whether the provisions of the Acts Interpretations Act 1901 preserve an accrued right of unlimited portability?

·Whether the respondent is estopped from applying the 13 week portability as a result of the representations made by Centrelink officers? and

·Whether the respondent was in breach of a duty of care?

41.     On each issue I have found against the applicant.

42.     The reviewable decision of the SSAT dated 30 May 2005 is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr C. Ermert, Member

(sgd)     Elite Aloni
             Clerk

Date of Hearing:  12 December  2005

Date of Decision:  25 January 2006
Counsel for the applicant:             Mr P. Kistler
Solicitor for the applicant              Victoria Legal Aid
Advocate for the respondent:       Mr W. Zita, Centrelink