Asalemo and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 185

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/925

GENERAL ADMINISTRATIVE DIVISION         )
           Re      AGAIMALO ASALEMO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date21 March 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid family allowance in respect of her daughter Christina for the period 20 October 1999 to 5 February 2001. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant family allowance in respect of her daughter Christina for the period 20 October 1999 to 5 February 2001.

[SGD] N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY – family allowance – cancellation – arrears of family allowance – whether review sought within the meaning of the Act – whether Applicant entitled to family allowance during period of daughter's absence

LEGISLATION

Social Security Act 1991 – sections 878 and 887
Social Security (Administration) Act 1999 – sections 78 and 109

CASE LAW

Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138
Re Antoniou and Department of Family and Community Services [2001] AATA 1008
Re Department of Social Security and Trevisan (1990) 22 ALD 537
Re Frost and Department of Social Security (AAT 10360, 17 August 1995)
Re Vitalone and Department of Social Security (1995) 38 ALD 169

REASONS FOR DECISION

21 March 2002 Ms N Isenberg, Member

The application

This is an application by Agaimalo Asalemo ("the Applicant") for review of the decision by the Social Security Appeals Tribunal ("SSAT") made on 20 March 2001, which varied the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 16 February 2001. The SSAT varied the original decision by affirming that part of the decision to not pay arrears of an increased rate of family payment for the period 20 October 1999 to 30 June 2000 and remitting that part of the decision In relation to family tax benefit to the Respondent for reconsideration in accordance with the SSAT's directions. The original decision was affirmed by an authorised review officer on 1 March 2001.
Appearances
At the hearing, the Applicant was represented by her solicitor, James Dagnall, and the Respondent was represented by Bernard Slattery of Centrelink.
Documentary evidence
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administration Appeals Tribunal Act 1975 ("the T Documents"). In addition, the following documents were tendered to the Tribunal:
Exhibit           Description    Date
A1      Applicant's submissions and statement 7 September 2001
A2      Applicant's bank statement – various
R1      Respondent's Statement of Facts and Contentions     1 February 2002
R2      Statement of Patricia Hanrahan   5 February 2002
R3      Statement of Mak Cuevas 30 January 2002
R4      Customer Record Access Monitor Report – computer print-out         19 October 1999 – 11 November 1999

Background

The Applicant had been in receipt of family allowance In respect of her five children, including her daughter Christina. Unfortunately Christina became involved in drugs and ran away from home and the Applicant and her husband decided to send her to her grandmother in West Samoa. Within a few days of her departure in October 1999 the Applicant attended the Centrelink office in Mt Druitt to advise that her daughter was overseas and to request continued family allowance payment in respect of Christina. The following day her application was refused and payment for Christina was cancelled. A letter to this effect was generated advising the Applicant of this.
On Christina's return in early 2001 the Applicant again attended the Centrelink office at Mt Druitt and sought arrears in family allowance for the period Christina was overseas. The Centrelink delegate made a decision that arrears of family allowance could not be paid to the Applicant, as she had not sought a review of the original decision to cancel the family allowance with respect to Christina within 13 weeks of being notified. This decision was notified by letter dated 16 February 2001 (T15).
On 1 March 2001 an authorised review officer reviewed and affirmed the decision that the Applicant could not be paid arrears under either the Social Security Act 1991 or the Social Security (Administration) Act 1999 (T18).
The Applicant sought a review by the SSAT. The decision was varied by the SSAT, so that that part of the decision in relation to family allowance was affirmed (the subject of this application) and that part of the decision in relation to family tax benefit was remitted to the Respondent for reconsideration in accordance with the SSAT's directions (T2). The SSAT also found that Christina was only temporarily absent from Australia.
Applicant's submissions
The Applicant contends that when she first attended Centrelink she had a conversation with a Centrelink officer, now identified as Mr Cuevas, who told her she was unable to receive family allowance while Christina was overseas. She was upset by this advice and it was submitted, her conduct at that time, in accordance with the authorities, sufficed to amount to an application for review.
As to the letter formally advising the Applicant that her family allowance for Christina would be cancelled for the duration of her time overseas (T15), the Applicant may not have received that letter as her house had burnt down. The significance of the letter is that it contains advice as to appeal mechanisms.
The Applicant attended Centrelink again about three weeks later and had another conversation with Mr Cuevas, again expressing dissatisfaction with the decision in relation to not being able to receive family allowance during Christina's absence.
At no time, other than in the letter from the Respondent dated 16 February 2001 (T15) (which may not have been received by the Applicant) was the Applicant advised of her appeal rights.
Issues before the tribunal
The first issue in this application was whether the Applicant sought review of the decision dated 16 February 2001 to not pay her arrears of family allowance in respect of her daughter Christina, within the meaning of the Act. The solicitor for the Respondent said there was no dispute that if the Applicant were found to have had the conversations as alleged, then her conduct amounted to an application for review.
The second issue was whether the Applicant was entitled to family allowance during the period of her daughter's absence. The SSAT found that Christina was only absent from Australia temporarily. Therefore, if the Tribunal finds that the Applicant had sought a review of the decision that she was not entitled to family allowance in respect of Christina during her absence overseas on either 19 October 1999 or at some other time in the 13 weeks after Christina's departure, then the Applicant would be entitled to family allowance in respect of Christina for the duration of her absence. If the Tribunal finds that the Applicant did not seek a review until February 2001 then she would not be entitled to family allowance in respect of Christina until that time.
Legislation
The parties agreed that if the Tribunal found that the date of the Applicant's application for review was in October or November 1999 then the applicable legislation is section 887(1) and (3) of the Social Security Act 1991 ("the Act"). Sections 878 and 887 of the Act were replaced from 20 March 2000 by section 109 of the Social Security (Administration) Act 1999. These new sections however are nearly identical to the former sections 878 and 887 of the Act, and do not alter the practical application of the law. Section 887 of the Act relevantly states:
"887(1) The day on which a determination under section 878 or 883 (the "favourable determination") takes effect is worked out in accordance with this section.
…
887(3) If:
(a) a decision (the "previous decision") is made in relation to a family allowance; and
(b) a notice is given to the recipient advising the recipient of the making of the previous decision; and
(c)the recipient applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the recipient sought the review."
If however, the date of the application for review was 13 February 2001, the date the Applicant attended the Centrelink office after Christina's return, then the applicable provisions are sections 78 and 109(2) of the Social Security (Administration) Act 1999. Those sections relevantly provide:
"78. Rate increase determination
If the Secretary is satisfied that the rate at which a social security payment is being, or has been, paid is less than the rate provided for by the social security law, the Secretary must:
(a) determine that the rate is to be increased to the rate provided for by the social security law; and
(b) specify the last-mentioned rate in the determination.
…
109(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."
In any event, where a person seeks a review more than 13 weeks after being told of the decision in writing, any rate increase can only occur from the date the request is made.
Evidence
the applicant
The Applicant gave evidence that in October 1999 almost her entire house burnt down. At the same time she was very concerned about the behaviour of her daughter Christina, who was 13. She was taking drugs and had run away from home. The Applicant and her husband decided to send Christina to her grandmother in West Samoa. This cost $1200 in airfares and she departed on 15 October 1999.
On 19 October 1999 the Applicant said she attended the Mt Druitt Centrelink office. She spoke to someone at reception and was given a form to complete. She did this without assistance and waited to be called. At the time she was not sure of the date of Christina's return as it would 'depend on how she is'. She would come back when she was better.
The Applicant said she gave Mr Cuevas the form. There was no further information required and he told her she could not claim family allowance while Christina was overseas. She could claim again if and when Christina returned. She thought this was unfair but accepted what he said 'because he worked there'. She thought he must 'know the rules' and she was 'so unhappy'. Mr Cuevas said that the interview was finished. In all it lasted about five minutes. At the time her financial situation was 'really bad' because the house had burnt down and the family needed somewhere to live. Later she got about $2000 from the insurance company.
As to the letter of 20 October 1999 (T5) she could not now remember if she received it, although she had told the SSAT that she could remember receiving it. She possibly did not receive it. In any event it would not have made much difference because of what she had been told.
A few weeks later she went again to the Mt Druitt Centrelink office as she had been asked to produce her husband's income tax assessment. Again she queued at reception and had to wait. While there, she again saw Mr Cuevas and after attending to her business in relation to the income tax assessment, again asked about Christina. She was told she could apply if and when Christina returned. She 'got upset'. At the time she was supporting Christina, sending money to her mother when she could afford to do so.
The Applicant could not now recall if she had been asked about the conversations with Mr Cuevas when she appealed to the SSAT.
In early 2001 Christina returned to Australia. The following day the Applicant went to Centrelink. She asked if she could claim for the time Christina was away. 'People in accounting' said that she could not and she should have applied while Christina was overseas. Again she was not told that she could appeal against that decision. She later received a letter which told her she could appeal to the SSAT which she did. She did not previously know about the appeal process.
In cross-examination the Applicant's attention was invited to the Application to Receive Family Allowance During an Absence Overseas (T3), and in particular, questions 4, 5 and 6. The Applicant said she had phoned her mother on a Wednesday to ask her to take Christina. On the Friday Christina flew out. She told her mother to let her know if there was anything she needed. She sent her mother money when she could afford it. She inquired if her mother could be paid by Centrelink and was told her mother could get the family allowance but not her. She did not want to do this as she felt Christina would put pressure on her grandmother to give her the money.
The Applicant was asked to look at the decision of the SSAT (T2, p4), as follows:
"Accordingly the tribunal asked Mrs Asalemo for more detail about what occurred when she attended Centrelink to notify of Christina's departure. Mrs Asalemo explained that she told Centrelink that Christina had gone to live with her mother (Christina's grandmother) in West Samoa. The officer asked her if she wanted her mother to claim family payment for Christina, but she replied that she did not want this to occur. Mrs Asalemo said that she explained to the officer that she was ending Christina overseas as she had commenced taking drugs, and also running away from home. Consequently Mrs Asalemo did not want Christina to know that her grandmother was being paid family payment for her, as she was fearful that Christina would obtain those payments and spend it on drugs. …The officer told Mrs Asalemo that she could not be paid family payment for Christina while Christina was overseas. The officer said that if Christina returned to Australia within 4 years she would be repaid the family payment not paid for Christina.
In response to the tribunal's questions, Mrs Asalemo said that she did query the Centrelink officer regarding the law applying to Christina's overseas absence. She said that the officer explained that sometimes a 2 year absence was allowed, and at other times a 4 year absence was allowed. She also asked how her mother could claim family payment for Christina when her mother was not in Australia, but the officer did not respond.
…."
The Applicant said she could not remember what questions were asked of her, or what her responses were, before the SSAT.
The Applicant was asked about the events of 19 October 1999. She said she went to the Mt Druitt Centrelink office in the morning. There were not many people there. There are reception points for different types of benefits and she went to the family allowance reception area. There she saw a male officer and told him that she wanted to report her daughter going overseas. He gave her a form to fill out. She was called by 'a Filipino man', now identified as Mr Cuevas. She sat at his work-station and the interview was not more than 10 minutes duration. He entered her name in the computer, as she did not know her number to enter on the form.
The Applicant was asked if Mr Cuevas told her she could not be paid for Christina when Christina left Australia. She said she could not be sure what was said. Following her attendance, the rate at which she was paid family allowance was reduced.
On the occasion about three weeks later when she attended with her husband's income tax assessment, she again saw Mr Cuevas. She said he told her she could get money for Christina if she was away for two to four years. She told him she was not happy. He said words to the effect: 'you can't do anything, that's the law.' She was 'upset' but not crying. She said she definitely made it clear that she was unhappy.
She said that on both occasions she was told by Mr Cuevas that she could seek 'back pay' when Christina came back to Australia and that is why she went straight in to Centrelink when Christina returned.
patricia mary hanrihan
Ms Hanrihan had worked at Mt Druitt Centrelink since March 1997 and, until January 2000 had been engaged in the family allowance section. Ms Hanrihan was shown Exhibit R4 and asked to decipher it. From her interpretation of the document she told the Tribunal that it appeared that on 19 October 1999, at about 4 pm, Anne Stewart, who worked on reception, had produced an income statement in respect of the Applicant.
The document also showed that early the following day, at about 7.15 am Rosemary Oldroyd had entered that a document (T3) had been lodged the previous day and had been referred to her, Ms Hanrihan, as case manager for the Applicant.
Later that day, the record shows, she made a note (T4) that she had considered the document, recording:
"a/n advised child Christina left aust to live with grandmother in west samoa from 15/10/99"

Ms Hanrihan had formed her view to cancel the Applicant's family allowance in relation to Christina on the basis of the information contained in the form (T3). She did not see the Applicant.
In relation to processing customers who attend the office, she said if the person on reception could not deal with an inquiry then the customer was set down for an appointment – a 'walk in' – and would be seen that day. She said that if the case manager was not available, and sometimes there was a delay of three to four days, then a customer may be asked if they wanted to see someone else instead.
Ms Hanrihan said that if a customer objected to a decision she would advise them of their appeal rights. As original decision-makers they would be expected to reconsider the decision at that time, especially if there was new information.
It is a common occurrence that children leave Australia unaccompanied. Ms Hanrihan said she would be surprised if an officer did not ask, when presented with a form such as that completed by the Applicant, whether the child was leaving Australia permanently. Irrespective of this however, the officer would still be obliged to inform a customer of their appeal rights.
She said she would find it hard to believe that an officer would tell a customer that they could get arrears on return of the child. She stated that it just did not make sense, in that if the person were entitled to a payment, then they would be paid 'now'.
In cross-examination Ms Hanrihan was asked if the form filled out by the Applicant was adequately completed. She said it contained sufficient information for her to be able to make a decision. Her attention was invited to the requirement that the form be signed by both parents of the departing child and that, in this case, only Mrs Asalemo had signed the form. She repeated that it contained sufficient information for her to be able to make a decision. The significant point was that there was no return date specified. She assumed because the Applicant had said in question 4 that the purpose of Christina's overseas visit was stated as: "to live with my mother" that this was a permanent arrangement. "Stay" or "visit" may indicate otherwise. She agreed that sometimes customers may have difficulty with forms.

Ms Hanrihan agreed that if the Applicant had been spoken to on the previous day she may well have been told that she was not entitled to family allowance during Christina's absence. Someone trained in family allowance could make that assessment.
In relation to the document Exhibit R4 Ms Hanrihan said that the document only shows those officers who had entered the Applicant's record. She said that someone could walk up to any officer and make an enquiry.
In re-examination Ms Hanrihan said that if the Applicant had wanted to advise that her daughter's absence was only temporary then she should have included that information in answer to question 5. She did not regard the information provided as ambiguous. The only further information she required was to confirm on the computer that Christina had been regarded up till that time as a dependant.
mak cuevas
Mr Cuevas has worked with Centrelink (and its predecessor the Department of Social Security), since 1992. He has been at the Mt Druitt office since 1995. For the whole of his time at Centrelink he has been engaged in family allowance matters as a member of the counter staff.
He stated that at the Mt Druitt office there are two reception points. The left one deals with family allowance matters, and some other matters. He has never been stationed at the reception area because of his disability. He works, sitting down, near reception.
Mr Cuevas said he sees a lot of customers and thought Mrs Asalemo 'looked familiar'. Mr Cuevas was asked if he recalled Mrs Asalemo approaching him in October 1999 with a query about her daughter Christina going overseas. Mr Cuevas said there were a lot of people coming into the office and there were a lot of people going abroad. He said Mrs Asalemo might have approached him but he does not recall.
Mr Cuevas was asked about the Applicant's contention that she had told him that her daughter was going overseas and that he told her she could not be paid family allowance and that that was the law. He said that he would have told her that if her daughter was leaving 'for good' the family allowance would be cancelled. If the child was not leaving permanently then payment would be paid for six months and it would be three years before it was cancelled.
Mr Cuevas said that if the Applicant had said 'I'm unhappy with that' then she could ask for a review, and then a review by an ARO and then appeal to the SSAT. He said he took his job seriously and if he thought a person was unhappy he would tell them about their appeal rights. Centrelink customers are also informed of their appeal rights by letter. If the customer had disputed the decision then he would have explained that if the child were going overseas permanently Centrelink would cut off the family allowance.
Mr Cuevas was asked about the Applicant's contention that he had told her that she should apply when Christina returned from overseas as she would continue to be entitled to family allowance for two to three years. He said that she could lodge a claim but the granting of family allowance was dependent on the law.
As to his knowledge of arrears payments, Mr Cuevas said there was a '13 week rule', that is, there is a need to appeal within 13 weeks of an original decision being made. Further, Mr Cuevas said that it was routine to talk to colleagues if a case was 'tricky'.
Mr Cuevas was shown Exhibit R4 and agreed that his user ID ('LPY') did not appear on the document.
In cross-examination Mr Cuevas said he saw about 20 customers a day. He agreed that family allowance is his area of expertise and that he could give advice regarding entitlement to family allowance. Mr Cuevas was shown the Applicant's application for family allowance at T3 and asked if, on the basis of the information therein, whether he would have told a customer that payments would be stopped. In response he said he had never seen the document before and that it was 'Trish's work'. By 'Trish' he meant Ms Hanrihan. On the information in the document he said he would have come to the same view as 'Trish'. The form clearly belonged to Trish because it had her name on it and the Applicant was one of her customers. If the form had been his he would have kept it.
Mr Cuevas was asked about giving advice to customers. He said that if a customer is unhappy he tells them about their appeal rights, if it is necessary to remind them as the information is 'in the letter' they receive from Centrelink once a decision is made. He said that customers get upset. Sometimes they exhibit threatening behaviour such as throwing things. He agreed that on some occasions he might not advise a customer of their appeal rights. He said he seldom discusses matters of dissatisfaction because he is doing his best to help the customers and his customers are generally happy because they get their entitlements. Sometimes, he cannot meet their requirements, such as when they are not entitled and he then explains to them why they are not entitled.
In re-examination Mr Cuevas said the procedure when a form was issued by reception was that it went back to reception and it would be checked there. It might be able to be done at reception. Because the Applicant's form is marked 'Trish' the most likely course was that it went to Trish's pigeonhole. His own practice is to sign the form. He said It was 'not possible' that Trish had been unavailable and had asked him to see Mrs Asalemo. If he had done so then his log-on would have been recorded on Exhibit R4. He said that if a customer sees him, whether 'on appointment or not' and the request is very easy then he will do it, then and there.
Mr Cuevas told the Tribunal that the form was a very minor one and it would have been acted on by reception. It would never have been referred to counter staff. He also said that his desk is located near reception and that people just stop and ask him things. He agreed there were occasions when he required people to attend to produce income tax assessments.
Submissions
the applicant
The Applicant's solicitor opened by submitting that the Applicant's account of events made sense. With the house fire and her concerns to remove Christina from undesirable influences, she went to Centrelink for assistance as soon as possible. The SSAT found her evidence plausible.
In the Applicant's submission the issue for the Tribunal was not whether the Applicant had been given wrong advice but whether she was told her application was to be rejected. Both Ms Hanrihan and Mr Cuevas thought on the basis of the application that it should be rejected. It was more likely than not that if told this, the Applicant would have been distressed, given her urgent need for money.
The Tribunal was referred to the evidence of Mr Cuevas in which he did not agree that on every occasion he would advise an upset person of appeal rights because they would be informed in the letter from Centrelink. Furthermore, Mr Cuevas was not able to categorically say he had no contact with Mrs Asalemo, only that there was probably no contact with her. He had come to this view on the basis of a notation on the form in relation to Ms Hanrihan, and because of his usual practice.
The Applicant had never appealed against any decision before and was unfamiliar with the process. If she received the letter informing her of the adverse decision and of her appeal rights (and this was unclear) and had read the letter, she had already expressed her dissatisfaction the day before the letter was generated.
Mr Dagnall, for the Applicant, said it was difficult to understand why the Applicant would falsely allege that she had been given information by Mr Cuevas, if in fact she had been given information by the receptionist, who, it appears, was Ms Oldroyd.
Mr Dagnall said, referring to Exhibit R4, that the procedures of Centrelink were not so streamlined that it could not be categorically said that the Applicant did not speak with Mr Cuevas. Mr Cuevas gave evidence, which may be considered honest and truthful, but he had agreed that people did approach him directly and he was genuinely concerned to help them. In those circumstances there was no reason to make a computer record, or indeed, to remember now that he had had that conversation.
Finally, the Applicant's solicitor submitted that the Applicant should be given the benefit of the doubt, given the beneficial nature of the legislation. The Applicant's informal inquiry should be taken as an application for review. In this regard he referred the Tribunal to a number of cases handed up, (and referred to above), and in particular to Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138.
the respondent
The Respondent's advocate agreed with the application of the law put forward on behalf of the Applicant, but said that the matter involved a question of fact only, namely, whether the Applicant had sought review of the decision in either of her alleged attendances at Centrelink. He conceded that the 'magic words' (ie that a review is sought) are not required. The matter for the Tribunal was to determine, on the balance of probabilities, the threshold issue of what had happened.
The Tribunal's attention was invited to the computer record of activity (Exhibit R4). This type of document records activity in relation to a Centrelink customer and the information is captured whenever there is activity in relation to that customer. Even if a Centrelink officer just looked at the customer's record that search would be recorded. Therefore the Tribunal should accept, on the basis of the computer record, that Mr Cuevas made no inquiry in relation to Mrs Asalemo.
Mr Slattery, for the Respondent, said that there was no dispute that Mrs Aselemo's circumstances were difficult, but her evidence before the Tribunal did not indicate a passionate exchange, or dispute, or that she queried or challenged the decision in a manner which, having regard to the authorities, would amount to a request for a review.
He invited the Tribunal's attention to the record of the Applicant's evidence before the SSAT where there was no mention of a Filipino man giving negligent advice. He described her recollection of her evidence before the SSAT in March 2001 as 'indifferent' and said that her account of events in October 1999 must also be cast into doubt.
Mr Slattery put forward what he considered to be the likely scenario of how the Applicant's form was lodged at Centrelink. He said there was independent and corroborated evidence of the general practice in relation to the transfer of work between officers. Late on 19 October 1999 (not in the morning as Mrs Asalemo had said) the Applicant attended the uncrowded Centrelink office at Mt Druitt. She went to the reception point for family allowance matters and indicated that her child had left Australia and was given a form. The officer she saw at reception was, in all likelihood, Ms Stewart. The Applicant filed out the form and brought it back. Either Ms Hanrihan herself or Ms Oldroyd wrote 'Trish' on the form. Just after 4.00pm Ms Oldroyd made an entry on the computer and the form was placed in Ms Hanrihan's pigeonhole overnight. The next day, at 7.16 am, before the office opened, Ms Oldroyd was calling up and recording unfinished activities. Ms Hanrihan took the form from her pigeonhole and assessed it. Her assessment did not take place in the presence of the Applicant. Ms Hanrihan made a reasonable decision that Christina had left Australia permanently for overseas, because it was written on the form that she had gone 'to live with' Mrs Asalemo's mother and no return date was specified.
Mr Slattery said there was a remote possibility that Mr Cuevas would have looked at Mrs Asalemo's record. In any event, it would be unusual that he had given incorrect information as alleged, particularly in view of his experience in family allowance matters. What was clear was that he definitely did not enter the Applicant's record and he very probably did not deal with Mrs Asalemo on the occasion of her first visit to the Centrelink office when Christina was discussed. If he had done so the computer record would show this.
Similarly, in relation to the second occasion when Mrs Asalemo said she discussed Christina, Mr Slattery said it was doubtful that she would attend the same person to agitate about the decision if she had already been given unfavourable information on the previous occasion. Again there was no entry of the discussion. In summary, therefore, the scenario suggested by the Applicant was said, by the Respondent, to be unrealistic, unreliable, and a remote possibility only.
As to the substantive decision, it was submitted by the Respondent that the correct decision had been made on the basis of the information provided.
In summary, the Respondent's position was that the Tribunal should find that the SSAT was correct and that the Applicant did not seek review of the decision until February 2001 when Christina had returned.
In response to the Respondent's submissions, the Applicant's solicitor said that the Applicant's account was a real possibility and not a remote one, and that the Respondent's evidence was not so compelling that the Applicant's account was extraordinary. To say that her evidence before the Social Security Appeals Tribunal was inconsistent is inaccurate in that she did there refer to one officer with whom she had both discussions. As to a lack of 'passionate exchange', he said the Applicant's evidence was that she was 'quite upset'. As to the time of day that the Applicant attended the Centrelink office the Applicant may have been mistaken but there was no reason for her to be untruthful about that. In any event, it made no difference to the substance of her evidence.
Decision
The issues in this matter were limited to the consideration of whether Mrs Asalemo had sought an application for review of the Centrelink decision, which reduced her family allowance because her daughter Christina had gone overseas, within 13 weeks of that decision. If the Tribunal finds that the Applicant did seek such a review, then the Tribunal must also decide if the decision was the correct and preferable one.
It was not in dispute that the Applicant attended the Mt Druitt Centrelink office on 19 October 1999. She lodged a form (T3) applying for family allowance in respect of her daughter Christina whom she had sent overseas.
The evidence from the Centrelink officers was to the effect that the computer records show that the first staff inquiry that day in relation to Mrs Asalemo was at 4.00pm. Ms Hanrihan, who made the decision that the Applicant was not entitled to family allowance in respect of Christina, did not make the decision until the following day. The Tribunal accepts that the decision about which Mrs Asalemo complains was made on 20 October 1999. That being the case there was, on the previous day, no decision about which to seek a review.
If Mrs Asalemo did speak to Mr Cuevas that day, and the Tribunal need make no finding in that regard, any such conversation, in the Tribunal's view, would have been an expression of Mr Cuevas' opinion, and not the decision per se.
The Applicant's further evidence was that a few weeks later she again attended the Mt Druitt Centrelink office in response to a request to produce her husband's income tax assessment. While there, it was her evidence that she again saw Mr Cuevas and, after attending to her business in relation to her husband, she said she asked about Christina. Mrs Asalemo said she told Mr Cuevas she was not happy and he had said words to the effect: 'You can't do anything, that's the law.' She was upset but she was not crying. She said she definitely made it clear that she was unhappy with the decision.
The Tribunal notes that while Mrs Asalemo was asked in detail about her first attendance at the Centrelink office there were few questions in cross-examination about her second attendance.
As to the evidence of Mr Cuevas, the Tribunal found him to be an experienced Centrelink officer who impressed the Tribunal with his diligence and willingness to help members of the public.
Mr Cuevas said his work-station is located near reception and that people just stop and ask him things. He said that if a customer sees him, whether 'on appointment or not' and the request is very easy then he will do it, then and there. This is consistent with the evidence of Ms Hanrihan who said in relation to Exhibit R4 that that document shows only those officers who had entered the Applicant's record and that someone could walk up to any officer and make an inquiry. In addition, Ms Hanrihan said, in relation to processing customers who attend the office, that the person on reception could ask a customer if they wanted to see someone else if the case manager was not available.
Mr Cuevas did not specifically recall Mrs Asalemo approaching him but said she may have. He sees about 20 customers a day and stated that he thought she 'looked familiar'.
Mr Cuevas said that family allowance is his area of expertise and that he could give advice regarding entitlement to family allowance. He conceded that there were some occasions when he may not advise a customer of his or her appeal rights.
Taking into account the evidence as a whole, the Tribunal is satisfied that it is likely that the Applicant attended the Centrelink office in about mid November 1999 and while there in connection with another matter, saw Mr Cuevas. Being helpful, he tried to explain the decision about which she expressed concern. There was evidence before the Tribunal that such an exchange could occur informally without an entry being made on the computer. In accepting the Applicant's evidence that she was upset (although not crying) the Tribunal found she made it clear that she was unhappy with the decision. After reviewing the authorities referred to, the Tribunal finds that that expression of concern should have been interpreted as being a request for review of her situation, and therefore sufficed for the purposes of section 887of the Act.
Having come to this view, it remains for the Tribunal to determine the substantive issue, namely whether the Applicant was entitled to family allowance in respect of Christina during the period of her absence.
The SSAT had found (paragraph 21, T2, p9) that Christina remained an 'Australian resident' within section 7(2) of the Act during the period of her absence overseas. The Respondent, in its Statement of Facts and Contentions did not dispute this finding (E xhibit R1). Having regard to all the evidence, and particularly with the benefit of hindsight, the Tribunal also finds that Christina remained an Australian resident during this period. The effect is that her mother was entitled to family allowance for that period.
Having found that the Applicant was so entitled and that her application for review was made within 13 weeks of the decision under review, then the Applicant is entitled to the relevant benefit from the date of that decision, namely 20 October 1999.
For reasons which are unclear to the Tribunal, the SSAT had considered the Applicant's entitlement up to 30 June 2000. Her family allowance had only been re-instated on Christina's return on or about 5 February 2001 and it is for the whole of this period for which she was entitled to family allowance in respect of Christina.
Accordingly, the Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant family allowance in respect of her daughter Christina from 20 October 1999 until 5 February 2001.

I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: O. Caragianni           .....................................................................................
  Associate
Date of Hearing  5 February 2002

Date of Decision  21 March 2002
Solicitor for the Applicant              Mr Dagnall
Advocate for the Respondent       Mr Slattery

[2002] AATA 185

21 March 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Appeal

Standing

Social Security

Administrative Decisions (Judicial Review) Act 1977