Andrew Bruvels and Secretary, Department of Social Services
[2013] AATA 901
[2013] AATA 901
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4195
Re
Andrew Bruvels
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 18 December 2013 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]................................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Applicant outside Australia for longer than the maximum portability period – Suspension of disability support pension – Applicant unaware of the change to the maximum portability period – No duty of care in Centrelink to advise of legislative change – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 1217, 1218, 1218AAA, 1218AA, 1218AB, 1218C
Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012 (Cth) Sch 2
Financial Management and Accountability Regulations 1997 (Cth) reg 9
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Re Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
Scott v Department of Social Security [2000] FCA 1241SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr R G Kenny, Senior Member
18 December 2013
The applicant was in receipt of DSP, which is paid in accordance with the Social Security Act 1991 (Cth) (“the Act”), when he departed from Australia on 6 February 2013 for the Philippines. He remained there before returning to Australia on 7 April 2013, some 8½ weeks later. On 20 March 2013, a Centrelink officer suspended the payment of the applicant’s DSP because he had exceeded his maximum portability period of six weeks for its continued payment. That decision was affirmed by an authorised person in Centrelink on 7 June 2013 and, in turn, by the Social Security Appeals Tribunal on 31 July 2013.
LEGISLATION, SUBMISSIONS AND ISSUES
Under s 1217(4) of the Act, the maximum portability period for payment of the DSP is six weeks. Prior to 1 January 2013, the maximum portability period was 13 weeks.
This was amended with effect from 1 January 2013 to six weeks.[1] The Act makes provision for exceptions to that limitation by enabling the portability period to be unlimited. Of potential relevance to that exception in this matter are ss 1218AAA, 1218AA, 1218AB, 1218C and 1218 of the Act. However, the applicant accepts that he does not meet the requirements of any of those exceptions. Rather, he contends that Centrelink should have advised him of the reduction of the portability period when he arranged to travel overseas for a period of 60 days.
[1] See the Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012 (Cth) Sch 2 s 59.
The applicant accessed the Centrelink web site in November 2012 prior to booking his return flight to the Philippines. The advice at that time was that a 13 week period of portability applied. He could not recall if he looked at the Centrelink web site after
1 January 2013 when the new portability limit was introduced. He also contacted Centrelink by phone on 7 January 2013 to advise that he was no longer undertaking a course of study. He believes that he also advised the Centrelink officer that his intention was to travel abroad. He submitted that the web site should have given notice of the pending change in the portability limit and that the officer with whom he spoke should also have provided him with that advice. Had this been done, he submitted, he would have arranged to be back in Australia within the new six week time-frame.
The applicant submitted that Centrelink was in breach of its duty of care to him by not informing him about the legislative amendment to the length of the maximum portability period.
For the respondent, Mr Nicholas Warren submitted that Centrelink did not have a general duty of care to provide its customers with information about changes of the kind made to the portability period, but that it was open to the applicant to lodge a claim under the scheme relating to compensation for defective administration. He submitted that there was no duty of care owed by Centrelink either at common law or under legislation.
In support of that proposition, Mr Warren referred to Scott v Department of Social Security,[2] Re Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[3] (“Murphy”) and Re Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[4]
[2] [2000] FCA 1241 at [20].
[3] [2010] AATA 115 at [17].
[4] [2011] AATA 488 at [19].
CONSIDERATION
There is little dispute about the facts in this matter. I am satisfied that the applicant remained outside of Australia for more than six weeks whilst in receipt of the DSP, that none of the exceptions under the Act extending portability were applicable to him and that Centrelink correctly suspended that payment at the end of the applicant’s absence from Australia for six weeks. I am also satisfied the applicant spoke with a Centrelink officer on 7 January 2013. However, Centrelink’s record of that conversation refers only to the cessation of the applicant’s study arrangements and not to his pending departure from Australia.[5] There is no evidence before me to indicate the date when the reduced portability limit was placed on the Centrelink web site.
[5] Exhibit 2.
In relation to whether a duty of care was owed to the applicant, I have noted the authorities cited by Mr Warren. In Murphy, the Tribunal said:[6]
Therefore, Mr Murphy’s submission that Centrelink had a duty to inform him of the legislative changes regarding deductible amounts from defined benefit income streams is incorrect. Centrelink had no such duty. Therefore, contrary to what Mr Murphy has said about Centrelink being negligent and deficient in its administration of his age pension, that cannot be correct.
[6] at [13].
As far as the terms of the Act are concerned, I agree with what was said in that case and
I am satisfied that it extends to the giving of advice about the reduction to the length of the portability period. However, the Guide to Social Security Law[7] makes it clear that Centrelink staff do owe a duty of care to persons in the applicant’ position. In s 1.3.4.10 of the Guide, the following appears:
1.3.4.10 Duty of Care
What does duty of care mean?
Australian Government employees have a duty of care to the public when performing their duties. This extends to any advice offered and any actions performed.
Breaches of duty of care
A breach of duty of care can result from negligent advice and/or a negligent action.
Compensation can only be paid if the Department or Centrelink has breached its duty to exercise reasonable care. The payment is made in accordance with regulation 9 of the Financial Management and Accountability Regulations 1997 (FMAR).
[7] For use of the Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
It is not clear that any breaches of duty, as set out in the Guide, occurred in this case. However, even if there were such breaches, the Tribunal does not have jurisdiction to determine compensation arrangements under the FMAR. The applicant has been made aware that he is able to approach Centrelink in relation to making a claim under the compensation for defective administrative action. In so far as the Act is applicable, the decision under review was correctly determined in that the portability period for the applicant’s DSP was for a maximum period of six weeks.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member.........................[Sgd]..............................................
Associate
Dated 18 December 2013
Date of hearing 13 November 2013 Applicant In person Solicitors for the Respondent Mr Nicholas Warren, Departmental Advocate
1
3
0