Baldonado and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 303

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2007/3635

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROLMAR BALDONADO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date15 April 2008

PlaceSydney

Decision The decision under review is affirmed.   

..............[sgd].........................

Dr I Alexander

Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – failure to lodge ‘Application for Payment’ form –automatic cancellation of payments – special circumstances – decision under review affirmed

Social Security (Administration ) Act 1999 – ss 68(2), 95(1), 95(2)

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

REASONS FOR DECISION

15 April 2008            Dr I Alexander, Member

INTRODUCTION

1.Mr Baldonado seeks review of the decision of the Social Security Appeals Tribunal to affirm the decision of Centrelink to cancel his Newstart Allowance payments.

2.Centrelink cancelled the payments pursuant to s 95(1) of the Social Security (Administration) Act 1999 (“the Act”) on the grounds that Mr Baldonado failed to lodge an “Application for Payment” form on the due date as determined by a notice issued pursuant to s 68(2) of the Act.

ISSUES

3.The issues to be decided by the Tribunal are:

i)Was the Newstart Allowance correctly cancelled?

ii)Were there special circumstances such that it is appropriate to determine, pursuant to s 95(2) of the Act, that the requirement of s 95(1) to automatically cancel the Newstart Allowance payments does not apply in Mr Baldonado’s case?

EVIDENCE

4.Mr Baldonado had received Newstart Allowance on several occasions since 1999 totalling approximately two years.

5.On 23 November 2006 Centrelink wrote to Mr Baldonado advising him to complete an enclosed “Application for Payment” form and to return this form to Centrelink on 6 December 2006. Both the letter and the form itself clearly indicated that payment would stop if the form was returned late.

6.Mr Baldonado did not lodge an Application for Payment form on the required date, but contacted Centrelink by telephone on 14 December 2006 claiming that he had not received the relevant form.

7.When Mr Baldonado subsequently attended Ryde Centrelink on 19 December 2006 he brought a bundle of letters that included the letter of 23 November 2006 and the enclosed Application for Payment form.

8.On 20 December 2006 Centrelink cancelled Mr Baldonado’s Newstart Allowance as of 23 Novemeber 2006.

9.On 22 December 2006 Mr Baldonado commenced employment as a film editor that is still current.

10.In his oral evidence at the hearing, Mr Baldonado conceded that the letter of 23 November 2006 had been sent to the correct address and that he had received the letter within 2 days of the recorded date.

11.Mr Baldonado, however, claimed that his failure to complete and return the required form on the due date was merely an oversight. He claimed that the format of the covering letter was different to previous letters, and therefore he did not realise it was related to an application for payment. He admitted that he had not read the letter and failed to notice that an application form had been enclosed.

12.At the time of the hearing the Tribunal did not have available to it a copy of an earlier covering letter sent to Mr Baldonado which it could refer to for the purposes of comparison. The Respondent subsequently provided copies of the covering letters sent to Mr Baldonado on 15 September 2006 and 23 November 2006, both in the form they are electronically stored by Centrelink.

13.The electronic copies demonstrated that the relevant content of the two letters was essentially the same. In particular, I note that both letters had the same introduction with a heading “IMPORTANT INFORMATION” followed by a statement that “Your Application for Payment Form is enclosed. You must personally take this form to your local Centrelink office”.

14.Furthermore, each letter, plus the enclosed and unchanged Application for Payment form, amounted to about several pages.

15.Mr Baldonado, in a subsequent submission, stated that the electronic copies did not show the letters in the form in which he had received them and he claimed that the format had “camouflaged the details”, thus leading to his oversight.

16.Mr Baldonado also claimed in his oral evidence that, despite being aware of the usual procedure for application for payment, he had assumed that there had been some change because on his last visit to Centrelink an officer had told him that changes in the payment procedure were being considered.

17.However, in response to a question from the Tribunal, Mr Baldonado conceded that if any significant change in the payment procedure were to be implemented that he would have expected Centrelink to inform him of such changes in writing prior to implementation.     

18.In the course of his evidence, Mr Baldonado indicated that he had no difficulties in reading or speaking English and that he had obtained a Masters qualification from the Australian Film Television and Radio School.

CONSIDERATION

19.It is clear from the evidence before me that Centrelink had correctly cancelled Mr Baldonado’s Newstart Allowance payments.

20.It is also clear from the evidence that Mr Baldonado had received the appropriate notification and the correct application form, but that he did not read the letter and did not return the Application for Payment form on the relevant date.

21.In deciding whether Mr Baldonado’s reasons for failing to read the letter and to make an application for payment by the due date amount to “special circumstances” I am mindful that the Act does not define “special circumstances”.

22.In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 Besanko J, after having considered all the relevant authorities, said at [33]:

… the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or unusual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

23.I find Mr Baldonado’s reasons for not reading the letter and failing to apply for payment were somewhat unconvincing, particularly as he is a reasonably educated man with postgraduate qualifications who had received Newstart Allowance on five occasions over several years and was very familiar with the procedure for application for payment.

24.On the issue of the different format of the letters, I am not satisfied that the differences would have been such that Mr Baldonado would have been confused as to the nature of the letters.

25.It would be reasonable to expect that a person with Mr Baldonado’s education and experience with Centrelink procedures would understand the significance of six pages of documentation from Centrelink and would read the documents properly.

26.For the above reasons I am not satisfied that the circumstances of Mr Baldanado’s case are unusual or uncommon.

27.I find, therefore, that there are no special circumstances in this case that would satisfy me so that it would be appropriate to determine that the requirements of s 95(1) of the Act do not apply.

DECISION

28.For the above reasons the decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed:         ............................[SGD]...............................................
  Associate

Date of Hearing:  14 March 2008
Date of Decision:  15 April 2008
Appearance for the Applicant:  Self-Represented
Solicitor for the Respondent:     Ms R Harlock, Centrelink Legal Services