Blackall and Secretary, Department of Family and Community Servic Es

[2003] AATA 815

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/985

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Leigh Blackall

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date7 August 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................

RP Handley
  Deputy President 

CATCHWORDS

SOCIAL SECURITY – newstart allowance – whether the Applicant was eligible for newstart allowance whilst not in Australia – whether Applicant’s absence from Australia was for a humanitarian purpose allowing newstart payments to continue in his absence - examination of the Applicant’s reason for leaving Australia – examination of the organisation Community Communication Online and its purpose -  held that the Applicant’s absence from Australia did not fall within the definition of humanitarian purpose – decision of the Respondent affirmed.

Social Security Act 1991 ss 1212B, 1212D, 1217, 1217(1), 1218

REASONS FOR DECISION

7 August 2003 Mr RP Handley, Deputy President          

1.      This is an application by Leigh Blackall (“the Applicant”) for a review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 14 May 2002 which affirmed a decision of a delegate of the Secretary of the Department of Family and Community Services (“the Respondent”) to cancel the Applicant’s newstart allowance when he was outside Australia from 21 November 2001 to 6 December 2001.

2. At the hearing, the Applicant represented himself and the Respondent was represented by Cheryl Collis, Advocate, of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”).

Background

3.      The Applicant, Leigh Blackall, was born on 1 May 1975 and is aged 28.  He was in receipt of newstart allowance, when, on 16 November 2001, he advised Centrelink that he would be travelling outside Australia from 21 November 2001, returning on 6 December 2001 (T p30).   He stated in his letter of notification that the reason for his travel was to represent an Australian non-government organisation called Community Communications Online (“c2o”) at the annual meeting of an international non-government organisation called the Association of Progressive Communications (“APC”) in Montevideo, Uruguay.  c2o and APC were to share the cost of his airfare and made arrangements for his accommodation, but he was not paid for attending the conference.  He stated that through attending the conference, he was actively seeking work with non-government organisations recognising his skills.  He asked for consideration of his position and expressed the hope that an arrangement could be made so that his record with Centrelink would not be affected. Mr Blackall received no response to this letter from Centrelink before leaving Australia on 21 November 2001.

4.      On 10 December 2001, Mr Blackall’s newstart allowance was cancelled for the period when he was out of the country and reinstated from 7 December 2001.   On 28 February 2002, Mr Blackall requested a review of the decision to cancel his newstart allowance (T p43). 

5.      On 12 March 2002, an Authorised Review Officer of Centrelink affirmed the decision (T20).   On 12 Aril 2002, Mr Blackall lodged an application for a review of the decision by the Social Security Appeals Tribunal (“SSAT”).  The SSAT affirmed the decision on 14 May 2002 and the decision was notified to Mr Blackall on 21 May 2002 (T p5).

6.      On 15 July 2002, Mr Blackall lodged an application for a review of the SSAT decision by the Tribunal.

Relevant Legislation

7. The relevant provisions relating to portability are set out in Part 4.2 of the Act. Section 1217(1) provides in the Table at the end of the section, that a person on newstart allowance can be absent from Australia for a period of 26 weeks for the following purpose:

(a)        to seek eligible medical treatment;

(b)       to attend to an acute family crisis;

(c)       for a humanitarian purpose.  

8.      However, the 26 week portability period is subject to continuing qualification for the payment and nothing in the legislation confers the right to be paid if not qualified for the payment (s 1212D).  As long as the person is qualified for the payment, the payment can be made for temporary absences up to 26 weeks.

9. Section 1212B defines humanitarian purpose:

For the purposes of this Part, a person's absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:

(a) for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or

(b)      for purposes relating to the adoption of a child by the person; or

(c)      for a purpose specified in the regulations for the purposes of this paragraph.

Evidence

Leigh Blackall (the Applicant)

10.     Mr Blackall said he returned to Australia from Taiwan in September 2001 having worked there as a Cultural Affairs Officer for the Department of Foreign Affairs and Trade.  He started receiving newstart allowance in about June 2001 and entered into a “Preparing for Work Agreement” signed on behalf of Centrelink by a Customer Service Officer called Mark at Centrelink’s King Street, Newcastle office.

11.     In November 2001, Mr Blackall was undertaking volunteer work for c2o involving on-line requests to edit documents and prepare submissions for funding.  This took him about three to four hours a week.  Mr Blackall hoped that this volunteer work, for which he was not paid, would lead to employment with c2o.  In mid-November 2001, a few days before writing his letter to Centrelink dated 16 November 2001 (T p30), Mr Blackall was asked by c2o to attend a conference in Montevideo, Uruguay, as their representative.   He suspected that there might be a problem with his leaving Australia while he was receiving newstart allowance so he wrote to Centrelink on 16 November 2001 with a view to negotiating something with his Case Manager.  Mr Blackall’s recollection is that he faxed the letter to Centrelink on that date.  He usually either faxed letters from his home computer or from a fax machine at the Post Office.

12.     Having had no reply to this letter, Mr Blackall telephoned Centrelink’s 1300 number and asked that an officer at the Newcastle office telephone him.  No officer responded to his request.  Mr Blackall therefore went into the Newcastle office on about 19 November 2001 and spoke to the officer who had signed his “Preparing for Work” agreement whom he knew as Mark.  Mr Blackall described Mark as being of Aboriginal appearance and having an Aboriginal flag in his office.  He explained to Mark that he wanted a response to his letter because he was worried that payment of his newstart allowance might be affected by his going overseas and that a lay off period might be imposed.  Mark reassured him that there would be no problem.  He was led to believe that everything would be OK and that if there were to be a cancellation, he would be put straight back on to newstart allowance with no loss of payments.

13.     When Mr Blackall got home from Uruguay on 6 December 2001, he received a letter from Centrelink dated 20 November 2001 (T p34) saying his newstart allowance had been cancelled.  Mr Blackall was shocked when he telephoned Centrelink and was told that he would not receive any newstart allowance payments for the period when he was outside Australia.  Mr Blackall said it took some time for the decision not to pay him newstart allowance during his absence to be reviewed.  He did not check the specific provisions of the Act until three to six months afterwards, having spoken to the Manager of the Newcastle office.

14.     Mr Blackall said his inability to go overseas to represent c2o without this affecting his newstart allowance, influenced his ability to work for c2o.  As a result of his experience and that in relation to a later visit to Johannesburg for c2o, he decided to take up employment elsewhere.  He now works for the Department of Education and Training.

Submissions

Applicant

15.     Mr Blackall noted that Centrelink did not respond to the concerns raised in his letter of 16 November 2001.  Even the letter of 20 November 2001 (T p34), which he received after returning to Australia, does not address these concerns.  Mr Blackall followed up his letter with a phone call and visit to the Newcastle office where he received reassurance from Mark.  Mr Blackall said Centrelink had an obligation under the terms of his “Preparing for Work Agreement” to support him in looking for work. He contended that Centrelink should have considered his situation and permitted him special consideration in his efforts to find work.

Respondent

16. Ms Collis said the Respondent contends that newstart allowance was not payable to Mr Blackall during his temporary absence from Australia as this was not for a reason specified in s 1217 of the Act.

17.     She contended that Centrelink responded promptly to Mr Blackall’s letter of 16 November 2001 in its letter of 20 November 2001.  She acknowledged, however, that this was probably a computer generated letter, possibly sent from a remote location and not from the Newcastle office.

Consideration of the Law and Findings

18.     The issue for the Tribunal to determine is whether the decision to cancel Mr Blackall’s newstart allowance during his absence from Australia was correct.  The Tribunal finds that Mr Blackall was asked to go overseas to attend a conference in Montevideo, Uruguay, in connection with volunteer work that he did for a community organisation called c2o.  The Tribunal accepts Mr Blackall’s evidence that such volunteer work might have led to his employment by c2o.  The request to attend the conference in Uruguay as c2o’s representative was made to Mr Blackall only a few days before his letter to Centrelink on 16 November 2001 (T p30).

19.     The Tribunal accepts Mr Blackall’s evidence that he contacted Centrelink by telephone after sending his letter of 16 November 2001 and, having received no response, followed this up by going to the Newcastle office on about 19 November 2001 and speaking to an officer called Mark.  Mr Blackall felt reassured after speaking with Mark that there would be no problem with the payment of his newstart allowance while he was overseas, and he therefore departed Australia on 21 November 2001.  The Tribunal finds that Mr Blackall did not receive Centrelink’s letter dated 20 November 2001 (T p34) until his return on 6 December 2001.

20. Section 1217 provides that a person receiving newstart allowance can be absent from Australia for a period of 26 weeks for the purpose of (a) seeking eligible medical treatment, (b) attending to an acute family crisis, or (c) for a humanitarian purpose. There is no discretion to permit absences from Australia for other purposes. Section 1212B states that a person’s absence is for a humanitarian purpose if the purpose involves custody or certain other legal proceedings, is for a purpose relating to the adoption of a child by the person, or is for a purpose specified in the regulations. No relevant regulations have been made.

21. The Tribunal finds that Mr Blackall’s reason for being absent from Australia was not for the purpose of seeking medical treatment or attending to a family crisis; nor does it fall within the definition of humanitarian purpose in s 1212B. Thus, Mr Blackall’s absence from Australia was not for a purpose permitted by the Act in relation to the payment of newstart allowance and the decision to cancel payment of his newstart allowance while he was absent from Australia was correct. The Tribunal therefore affirms the decision under review.

22.     The Tribunal notes that Mr Blackall may wish to consider referring the matter to the Commonwealth Ombudsman whose functions include investigating complaints of maladministration.  It should be possible to identify the Centrelink officer who signed Mr Blackall’s “Preparing for Work Agreement” in about June 2001, whom Mr Blackall states is the person he spoke with when he attended the Centrelink office in King Street, Newcastle on about 19 November 2001.  Where the Commonwealth Ombudsman finds evidence of maladministration, he/she has the power to make recommendations in respect of that maladministration, including a recommendation as to the payment of compensation to a person affected by the maladministration.  It would then be up to the Department of Family and Community Services to decide whether to make such a payment. 

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  7 August 2003
Date of Decision  7 August 2003
Representative  for the Applicant             Self represented
Representative for the Respondent          Ms C Collis, Advocate, Centrelink