Barbouris and Secretary to the Department of Family and Community Services

[2002] AATA 1248

DECISION AND REASONS FOR DECISION [2002] AATA 1248

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/927
GENERAL ADMINISTRATIVE DIVISION
  Re:         JOHN BARBOURIS
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             4 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - failure to provide information - cancellation of youth allowance - non-receipt of notice - date of effect of resumption of payments
   Social Security (Administration) Act 1999 s109(2), 237(1), 237(2), 237(3)

REASONS FOR DECISION

4 December 2002  G.D. Friedman, Member

1. This is an application by John Barbouris (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 July 2002.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 31 May 2002 that the applicant was not entitled to be paid youth allowance (YAL) from 7 December 2001 to 1 April 2002 because he had failed to request a review of the decision to cancel YAL within 13 weeks of notification of the decision.

2. With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (T1-T19) and a submission dated 25 November 2002 on behalf of the Secretary to the Department of Family and Community Services (the respondent).
   BACKGROUND

3. In 2001 the applicant was in receipt of YAL as a full-time student at Lalor Secondary College, with payments to continue until 6 December 2001.  On 8 November 2001 Centrelink sent the applicant a form requesting information on his proposed course of study for 2002.  On 6 December 2001 Centrelink sent a letter to the applicant informing him that YAL had been cancelled because Centrelink had not received the information.  After contact from the applicant's mother (Ms M. Barbouris) on 2 April 2002, Centrelink reviewed the YAL entitlement, and in a letter dated 21 June 2002 advised the applicant that payments had been resumed from 2 April 2002.  On 31 May 2002 an authorised review officer affirmed the decision.  On 4 June 2002 the applicant sought review of the authorised review officer's decision by the SSAT. The SSAT having affirmed the decision, on 29 August 2002 the applicant lodged an application with the Tribunal for review of the decision by the SSAT.
   EVIDENCE

4. In evidence to the SSAT Ms Barbouris stated that the applicant had authorised the payment of YAL to her bank account, together with her own pension.  She said that she found the payments confusing and she had difficulty identifying each payment.  She stated that the applicant had authorised her to open mail from Centrelink and to deal with Centrelink on his behalf.  She said that she always completed the necessary Centrelink forms without delay, and had no reason to believe that the applicant's entitlement to YAL had changed because the applicant remained a full-time student in 2002.  Ms Barbouris told the SSAT that she did not receive the letter dated 6 December 2001 and was unaware that the applicant's YAL had been cancelled until 2 April 2002 when she raised the issue of the applicant's YAL while making enquiries about her own pension.

5. Ms Barbouris told the SSAT that, because neither she nor the applicant had received the letter dated 6 December 2001, they could not be expected to know that YAL had been cancelled, and the applicant should receive YAL for the period 7 December 2001 to 1 April 2002.
   CONSIDERATION OF THE ISSUES

6. The relevant sections of the Social Security (Administration) Act 1999 (the Act) are:

   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.
   …

   237.(1)     If notice of a decision under the social security law is:

   (a)delivered to a person personally; or

   (b)left at the address of the place of residence or business of the person last known to the Secretary; or

   (c)sent by prepaid post to the postal address of the person last known to the Secretary;

   notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

   237.(2)     Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
   237.(3)     If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.

7. The respondent, in its Statement of Facts and Contentions, submitted that, under s109(2) of the Act, the applicant may be paid YAL only from 2 April 2001 as this was the date on which the applicant sought review of the original decision to cancel his YAL. It submitted that, under s237 of the Act, the letter dated 6 December 2001 was addressed correctly and was sent by pre-paid post. Therefore, notice of the decision to cancel YAL should be taken to have been given to the applicant.

8. In reaching its decision, the Tribunal takes into account the written material, including submissions made by the respondent. 

9. On the material presented, the Tribunal has no reason to disagree with the applicant or Ms Barbouris that they did not receive the letter dated 6 December 2001.  However, the Tribunal accepts the respondent's submission that, under s237 of the Act, the letter was addressed correctly and was sent by pre-paid post. Therefore, notice of the cancellation of YAL is taken to have been given to the applicant by Centrelink.

10. The Tribunal agrees with the respondent's further submission that, under s109(2) of the Act, the applicant's request for a review of the decision to cancel YAL was made on 2 April 2002, which is more than 13 weeks after notice was given. Accordingly, a favourable determination on the applicant's application for review of the original decision may take effect only from the date of the application, 2 April 2002.
    DECISION

11. The Tribunal affirms the decision under review.

    I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:
    G.D.Friedman, Member

    (sgd)       Olympia Sarrinikolaou
                  Clerk

    Date of hearing:  Nil:  decision on papers

    Date of decision:  4 December 2002
    Advocate for applicant:               Self-represented
    Advocate for respondent:            Ms P. D'Cunha, Centrelink