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

[2008] AATA 177

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 177

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2007/4706

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LIAM THOMAS BRADLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date29 February 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

SOCIAL SECURITY – youth allowance – proof of parents’ income – non-lodgement of tax return – suspension of payments – cancellation of payments – notification of decisions – application to review decisions within 13 weeks – whether general telephone enquiries are applications for review – decision affirmed

Social Security (Administration) Act 1999

REASONS FOR DECISION

29 February 2008  Mr C. Ermert, Member

INTRODUCTION

1.      Liam Bradley was in receipt of youth allowance from Centrelink, the agency that provides services for the respondent.  For family reasons, Liam’s allowance was paid into an account of his father, Kieran John Bradley.  As a result, Kieran Bradley became Liam’s telephone contact for Centrelink.  However, Liam remained the mail contact.  On 1 May 2006 Centrelink wrote to Liam requiring a copy of Kieran’s tax return for the 2005 year.  As Centrelink received no response to the letter, Liam’s youth allowance payments were suspended and subsequently cancelled with effect from 22 May 2006.

2.      Kieran Bradley made some general enquiries of Centrelink about the suspension or cancellation of youth allowance but did not identify the enquiries with Liam’s Centrelink file.  From those enquiries, Kieran Bradley gained the impression that the youth allowance payments were not cancelled but only suspended.  He also had the impression that there would be no detriment to Liam’s youth allowance payments if he delayed lodging a tax return until 30 June 2007 and providing the information to Centrelink at that time.  He had a tax-related reason for delaying the lodgement of his tax return. 

3.      In mid-May 2007 Kieran Bradley lodged his tax return with Centrelink.  He contacted Centrelink on 18 May 2007 and was told that Liam’s youth allowance payments had been cancelled on 22 May 2006 and that a 13 week limitation period applied to a request for a review of the decision to suspend and cancel youth allowance.  Until then, he was not aware of the 13 week requirement as he had not read the details of the relevant letters sent to Liam and had not been so advised by Centrelink officers.  Kieran Bradley immediately requested a review of the cancellation decision.  Payment of Liam’s youth allowance recommenced with effect from 18 May 2007.

4.      On 6 July 2007 an authorised review officer of Centrelink affirmed the decision to cancel Liam’s youth allowance from 22 May 2006 and to commence his youth allowance on 18 May 2007 and not earlier.  On 28 August 2007 the Social Security Appeals Tribunal (SSAT) affirmed the Centrelink decision.  This matter is a review of that SSAT decision.

THE HEARING

5. At the hearing Liam Bradley was represented by his father, Kieran Bradley. The respondent was represented by Mr Faisal Bakhtiar, a Centrelink advocate. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I also accepted two submissions from Kieran Bradley, submitted by facsimile after the hearing, dated 3 January 2008 and 21 January 2008, and a submission in response from Mr Bakhtiar dated 4 February 2008.  Mr Bradley lodged a further, unsolicited, submission on 21 February 2008.  The tenor of this submission is that Mr Bradley contacted Centrelink within the 13-week period.  As will become clear, this contact is irrelevant as it did not amount to evidence of a request for review.  I did not take this submission into account.  Therefore, it was not necessary to solicit a response from Centrelink.

THE ISSUE

6. Section 109(1) of the Social Security (Administration) Act 1999 (the Act) relevantly provides:

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.

7.      In this case there is no dispute that Liam was notified of the decision to suspend and subsequently cancel the payment of his youth allowance.  The issue is whether there was an application for a review of the decision within the 13 week period of the notification.

AGREED FACTS

8.      The following facts are not in dispute:

(a)On 1 May 2006 Centrelink sent a letter to Liam Bradley requiring proof of his parents’ income and requesting that he provide a copy of his parents’ Tax Assessment Notices for the 2005 financial year within 21 days of the date of this request or your payment may be stopped (T8, page 34);

(b)The requested information was not provided to Centrelink until May 2007;

(c)On 22 May 2006 Centrelink wrote to Liam Bradley advising Your Youth Allowance has been suspended because we have not received a reply to a letter we sent you … YOUR RIGHTS … Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you may only get back payment from the date you ask (T9, pages 37-39);

(d)On 21 August 2006 Centrelink cancelled Liam Bradley’s youth allowance payments and advised him in writing Your Youth Allowance has been cancelled from 22 May 2006 because we have not received a reply to letters we sent you … YOUR RIGHTS … It is important to ask for the decision to be reviewed as soon as possible.  This is because if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to the decision, or any back payment, might only be able to take effect from the date you ask (T10, page 40);

(e)On 18 May 2007 Kieran Bradley contacted Centrelink, initiating a review of the cancellation decision by an Authorised Reviewing Officer; and

(f)Liam Bradley was granted youth allowance payments from 18 May 2007.

EVIDENCE

9.      In his evidence Kieran Bradley said that he telephoned Centrelink when he noticed that Liam’s youth allowance payments were not being received into his account.  He said that he was advised that the payments were suspended and that he needed to send in his tax return.  Kieran Bradley said that a couple of weeks later he received a letter saying the payments were cancelled so he rang Centrelink again about the youth allowance, querying the terms suspended and cancelled and was told that everything would be fine when he lodged his tax return.  Kieran Bradley stated he made further contact with Centrelink about family allowance and at the same time made another enquiry about youth allowance and was told that he had until 30 June 2007 to lodge his tax return.  Kieran Bradley conceded that his calls to Centrelink were general calls and not identified in relation to the file of Liam Bradley.

10.     In support of his evidence regarding his telephone calls to Centrelink Kieran Bradley submitted extracts of his telephone account showing, in particular, the itemised calls to 1300 numbers in May and June 2006.  He stated further that if he had been made aware of the 13 week period he would have lodged his tax return and advised Centrelink.  Kieran Bradley agreed that he did not accept the offers of the Centrelink officers to connect him with the youth allowance section to make more specific enquiries.  He said this was because from his general enquiries he was not aware of a problem and therefore not aware of the need to make specific enquiries in regard to Liam’s youth allowance payments. 

11.     Mr Bakhtiar submitted that there was nothing in Centrelink’s records that indicated that contact was made within the relevant 13 week period.  In response to the telephone accounts lodged by Kieran Bradley, Mr Bakhtiar submitted that a call recorded on 2 June 2006 was made to Centrelink’s Disability, Sickness and Carers telephone number and that Centrelink’s Youth and Student Services telephone number does not appear on the account statement.  Mr Bakhtiar submitted further that the call on 2 June 2006 was before the decision was made to cancel Liam’s youth allowance.  He contends that the telephone accounts lack probative value in that they do not establish with sufficient certainty that an actual request to review the cancellation decision was made.

12.     In answer to my question of whether general telephone enquiries are recorded by Centrelink, Mr Bakhtiar said that unless a caller provides information  such as a name, address, customer reference number, there is no way to actually record information on the customer’s record. 

CONSIDERATION

13.     From his account of the sequence of events, I accept that Kieran Bradley may have contacted Centrelink after noticing the cessation of youth allowance payments and soon after the letter dated 22 May 2006 was sent to Liam advising of the suspension of the payments.  The record of a telephone call made on 2 June 2006 to Centrelink assists in corroborating Kieran Bradley’s evidence.  Although there is no direct evidence in the statement of his telephone account, I accept as possible that Kieran Bradley telephoned Centrelink on other occasions in June 2006, which would be within the 13 week period.  However, Kieran Bradley’s clear evidence was that his telephone calls were only general enquiries and that he did not accept the offers from Centrelink staff to connect him with the Youth Allowance Section to enable him to make specific enquiries.  This evidence is in line with the record of the telephone call on 2 June 2006, which was made to Centrelink’s Disability, Sickness and Carer’s telephone number.

14.     From his non-specific enquiries Kieran Bradley appears to have gained an incorrect understanding of the requirement for him to provide details of his tax returns.  He also appears to have acquired no knowledge of the requirements of the Act as they relate to the 13 week period to apply for a review of the suspension and cancellation decisions.  Kieran Bradley gave evidence that he did not read the detail in the notices sent to Liam Bradley, which contain the information on the 13 week review.  I accept that without an awareness of the 13 week requirement to apply for a review of the decision it is probable that Kieran Bradley saw no need to make more specific enquiries of the relevant Centrelink staff regarding his son’s youth allowance payments. 

15. Section 109(1) of the Act requires a person to apply to the Secretary for a review of the decision.  From the evidence it is clear that Kieran Bradley did not know that he had to apply for a review and that the application had to be within 13 weeks of notification of the decision.  The requirement to apply within 13 weeks was contained in the notices sent by Centrelink, but his evidence was that he did not fully read the notices.  He also gained no knowledge of the requirement from his general telephone calls to Centrelink.  Without the knowledge of the requirement it is unlikely that Kieran Bradley did actually apply for a review of the decision.  Indeed it was only in May 2007 when he provided a copy of his tax return that Kieran Bradley became aware of the requirement to apply for a review and submitted his application which resulted in the recommencement of Liam’s youth allowance payments.

16. I accept that Kieran Bradley made general enquiries of Centrelink, some of which related to the suspension and cancellation of youth allowance payments. However, I do not accept that these could be construed to be an application for a review of the decision. Accordingly, I find that Kieran Bradley did not apply for a review of the decisions to suspend and later to cancel the youth allowance payments to Liam Bradley. As a consequence, I find that section 109(1) of the Act was not satisfied in regard to the suspension of youth allowance payments as notified on 22 May 2006 and the cancellation of payments as notified on 21 August 2006.

17.     I find that the earliest date of an application for review of the decisions was 18 May 2007.  As this date is more than 13 weeks after the 21 August notification, section 109(2) applies.  In this case Liam Bradley’s youth allowance payments were correctly re-commenced on 18 May 2007.

DECISION

18.The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Olympia Sarrinikolaou
  Clerk

Date of Hearing:  14 December 2007

Date of Decision:  29 February 2008

Advocate for the applicant:                 Mr K. Bradley, father of applicant

Advocate for the respondent:             Mr F. Bakhtiar, Centrelink Legal Services