Begley and Secretary, Department of Social Services (Social services second review)
[2022] AATA 12
•7 January 2022
Begley and Secretary, Department of Social Services (Social services second review) [2022] AATA 12 (7 January 2022)
Division:GENERAL DIVISION
File Number: 2020/3245
Re:Teylar Begley
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:7 January 2022
Place:Perth
The Reviewable Decision, being the decision of the authorised review officer dated 17 February 2020, as varied by the Social Services and Child Support Division of this Tribunal in a decision dated 28 April 2020, is affirmed.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Newstart Allowance – date from which Applicant’s Newstart Allowance is to be increased – Applicant ceased receiving income by way of trust distributions from a family trust which was included in the calculation of his rate – whether Applicant received notice of decision – whether and when the Applicant requested a review of the decision – Applicant entitled to payment at an increased rate – date of effect – application determined on the papers – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security (Administration) Act 1999 (Cth) s 78, 109, 109(1), 179(2)(b), 237Social Security Act 1991 (Cth) s 23(12)
CASES
Brockhurst and Secretary, Department of Social Services [2016] AATA 326
Carey and Secretary, Department of Social Services [2016] AATA 926
Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279
McPherson and Secretary, Department of Social Services [2020] AATA 12
Polydorou v Secretary, Department of Social Services [2014] FCA 1059Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw and Ors [2007] AATA 1691
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
7 January 2022
BACKGROUND
Mr Begley commenced receiving Youth Allowance from 27 February 2018 (T6/175), which became a Newstart Allowance from 7 December 2018 (T13/194; T14/196).
Prior to his receiving the Youth Allowance, Mr Begley received some income by way of distributions from a family trust.
However, even though Mr Begley was no longer receiving any trust distributions, this income had been included to calculate the rate of his Youth Allowance and Newstart Allowance.
When Mr Begley made his initial online claim for Youth Allowance on 27 February 2018, he included an address which I will refer to as his Old Address (T5/170).
Centrelink sent notices dated 10 April 2018, 10 October 2018 and 9 November 2018 to Mr Begley at his Old Address stating decisions regarding his rates of Youth Allowance (T6; T8; T11).
Centrelink subsequently sent notices dated 11 December 2018, 18 December 2018, 13 February 2019, 15 March 2019, 1 April 2019, 18 April 2019, 11 June 2019, 24 June 2019, 24 June 2019, 12 July 2019, and 29 July 2019 stating decisions regarding his rates of Newstart Allowance (see T14; T15; T17; T19; T22; T24; T25; T27; T29; T31).
Both sets of notices stated that if he disagreed with a decision Centrelink had made, that he should ask for a review within 13 weeks, and if he did not do so, he may only receive his entitlement from the date he requested the review.
Mr Begley changed his contact details with Centrelink to an address I will refer to as his New Address on 18 April 2019 (T39/290), and from that time notices were sent to his New Address.
On 12 August 2019, Mr Begley contacted Centrelink and stated that he was no longer receiving trust fund payments. An electronic file note stated that the trust fund distributions had been calculated as income and had reduced his Newstart Allowance payments. It further stated that Mr Begley was asked to supply evidence about when the trust income ceased (T40/305).
Mr Begley subsequently provided information (on 5 September 2019 and 12 September 2019) concerning the trust, including a statutory declaration from the trustee stating that the trust was wound up on 29 June 2017 (T33/254), trust bank statements and a letter from the trust’s accountant confirming that the last distribution of income that Mr Begley received from the family trust was in the year ended 30 June 2016 (T34).
A Complex Assessment Officer (CAO) reviewed this information to assess whether Mr Begley was entitled to a higher rate of Youth Allowance from 27 February 2018 to 6 December 2018 and Newstart Allowance from 7 December 2018 to 11 August 2019. On 25 September 2019, the CAO decided that Mr Begley was only entitled to arrears from 12 August 2019 to 23 September 2019 (T36/262).
Mr Begley requested a review of this decision, and on 17 February 2020, an Authorised Review Officer (ARO) of Centrelink found that Mr Begley could be paid arrears of Youth Allowance and Newstart Allowance from an earlier date, being 1 July 2019 to 11 August 2019 (T36/260-264) (ARO Decision).
THIS APPLICATION
On 28 February 2020, Mr Begley sought review of the ARO Decision (T37/267) in the Social Services and Child Support Division of this Tribunal (AAT1).
On 28 April 2020, the AAT1 varied the ARO Decision to increase Mr Begley’s Newstart Allowance from 11 June 2019 (T2/6-10) (AAT1 Decision).
On 28 May 2020, Mr Begley filed an application seeking review of the AAT1 Decision in the General Division of this Tribunal (T1/1-5).
By operation of s 179(2)(b) of the Social Security (Administration) Act 1999 (Cth) (Administration Act), the Reviewable Decision is the ARO Decision dated 17 February 2020, as varied by the AAT1 Decision dated 28 April 2020.
THE SUBMISSIONS
Mr Begley believes that his Youth Allowance and Newstart Allowance should have been increased from an earlier date than the dates accepted by the ARO and the AAT1. He argued that these allowances should be increased from 27 February 2018, which was the date he commenced receiving the Youth Allowance.
However, the Secretary submits that the earliest date that Mr Begley’s Newstart Allowance can be increased from is 11 June 2019, and that the AAT1 Decision should be affirmed.
THE HEARING
Mr Begley has been represented by his uncle throughout his application. The hearing was vacated several times due to Mr Begley not being able to take time off work to attend.
The hearing was finally scheduled for a telephone hearing on 4 October 2021, being a date when Mr Begley indicated he could take time off work, however, he could not be contacted on the morning of the hearing.
Mr Begley’s uncle was, however, present. Mr Begley’s uncle, and Ms Jones-Bolla who represented the Secretary, consented to me determining the application on the papers in accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). I agreed that the issues could be adequately determined in the absence of the parties and directed that the matter could be determined without proceeding with the hearing.
As Mr Begley did not attend the hearing to give evidence and to have his evidence tested under cross-examination, I find that the documentary records of his dealings with Centrelink are the most reliable record of events, and I have made findings below on that basis.
CONSIDERATION
Did Mr Begley receive notice of the relevant decision?
In an email dated 10 September 2020 sent to the Tribunal Registry, Mr Begley submitted that he did not receive correspondence from Centrelink between 2011 to 2018. He claimed that he filled in his correct address, being the New Address when he signed up for a TAFE course in 2017, but that there was an “error” by Centrelink who had “refilled” the incorrect Old Address after he had “completed [his] side correctly”. The Secretary strongly refuted this allegation, referring to it as “baseless” (Respondent’s Statement of Issues, Facts and Contentions, para [5.23]).
I agree that the evidence before me does not support Mr Begley’s claim that Centrelink refilled the incorrect Old Address. The available evidence, namely Mr Begley’s online claim for Youth Allowance lodged on 27 February 2018, clearly includes his Old Address (T5/170).
I am also reasonably satisfied on the evidence before me, namely the contemporaneous Centrelink records, that Mr Begley only informed Centrelink of his New Address on 18 April 2019 (T39/290).
I can see that after Mr Begley changed his address, Centrelink sent notices, commencing with the notice dated 18 April 2019 (T24/236), to his New Address.
I therefore find that up until Mr Begley changed his address on 18 April 2019, Centrelink had nevertheless complied with s 237 of the Administration Act which required Centrelink to properly notify Mr Begley at his last known address, being the Old Address. Further, s 23(12) of the Social Security Act 1991 (Cth) confirms that s 237 of the Administration Act applies even if Mr Begley did not actually receive the notice (see for example, Brockhurst and Secretary, Department of Social Services [2016] AATA 326 at [30]; Carey and Secretary, Department of Social Services [2016] AATA 926 at [52]; McPherson and Secretary, Department of Social Services [2020] AATA 12 at [38]-[41]).
Accordingly, I find that Mr Begley is deemed to have been given the notices that were sent to his Old Address, even if he did not actually receive them.
I do acknowledge, however, that these types of deeming provisions can be confusing for applicants. In Polydorou v Secretary, Department of Social Services [2014] FCA 1059 at [34], Mortimer J acknowledged this, but noted that was how the legislation operated:
It is not difficult to understand the applicant’s bewilderment at the effect of a deeming provision such as s 237 of the Administration Act. Where continued access to social security payments depends on seeking review upon notification of an adverse decision, it is difficult for a person in the applicant’s position to understand how a legal fiction that he had notice of the adverse decision is allowed by the law to operate to his detriment. Nevertheless, that is what the Administration Act provides, for reasons no doubt related to consistent and predictable administration of the legislative scheme for social security payments.
Was Mr Begley entitled to an increased rate?
There is no dispute between Mr Begley and the Secretary that Mr Begley’s Youth Allowance and Newstart Allowances should be increased pursuant to s 78 of the Administration Act. This is because Mr Begley was paid at less than the rate provided for by the social security law due to his trust income being applied when he had ceased receiving any trust distributions.
The date of effect of the increase
However, the disagreement between the parties concerns the date of effect of this increase. Although Mr Begley contended that the date of effect should be the date his Youth Allowance and Newstart Allowances commenced, being 27 February 2018, s 109 of the Administration Act sets out how the date of effect is to be calculated.
Subsection 109(1) of the Administration Act provides:
(1) 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) within 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 determination embodying the original decision took effect.
The Applicant first requested a review when he contacted Centrelink on 12 August 2019 and advised that he was no longer receiving income by way of distributions from the family trust (T40/305). I find that this was an application for review because it was an inquiry about a decision, and not a mere request for information (Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279 at [28]; Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw and Ors [2007] AATA 1691 at [53]). That is, Mr Begley was effectively requesting that his rate of payment be corrected because he had not received any distributions under the family trust. I agree with the Secretary’s submission that there is no evidence to suggest that the Applicant sought review, or even that he had indicated any dissatisfaction with the rate decisions in any of the notices prior to that time.
Therefore, Mr Begley requested his review less than 13 weeks from the notice dated 11 June 2019 (T25/239). That notice was the “original decision” for the purpose of s 109(1)(a) of the Administration Act because it determined the rate of Mr Begley’s Newstart Allowance from 18 June 2019, together with advising the options for Mr Begley to seek a review if he did not agree with the decision.
The review also resulted in a favourable decision to pay the Applicant an increased rate of Newstart Allowance, thus satisfying s 109(1)(d) of the Administration Act.
Therefore, the effect of s 109(1) of the Administration Act is that the earliest date that Mr Begley is entitled to an increased rate of Newstart Allowance, that is the earliest date that he can be paid arrears from, is 11 June 2019. Consequently, he is not entitled to be paid any arrears earlier than this date, which would include any arrears of Youth Allowance.
DECISION
The Reviewable Decision, being the decision of the authorised review officer dated 17 February 2020, as varied by the Social Services and Child Support Division of this Tribunal in a decision dated 28 April 2020, is affirmed.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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Associate
Dated: 7 January 2022
Advocate for the Applicant: Mr P Begley Solicitors for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers
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