Brittan and Department of Family and Community Services

[2001] AATA 506

DECISION AND REASONS FOR DECISION [2001] AATA 506

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/618

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      IAN MICHAEL BRITTAN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Mr. I.R. Way, Member       

Date8 June 2001   

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

................(Signed)..............................
  I.R. WAY
  MEMBER

CATCHWORDS
SOCIAL SECURITY – Newstart allowance – entitlement cancelled whilst overseas
Social Security Act 1991: s593(1), (1A)

REASONS FOR DECISION

Mr. I.R. Way, Member                   

1. This is an application by Ian Brittan (the applicant) for review of the decision of the Social Security Appeals Tribunal (SSAT) dated 31 May 2000, affirming a decision made by Centrelink to cancel the applicant's Newstart Allowance (NSA) from 29 November 1999.  Centrelink's primary decision to cancel the applicant's NSA was made on 29 November 1999 and affirmed by an Authorised Review Officer on 31 March 2000. 

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T25). Oral evidence was given by the applicant and further documents were received into evidence for the applicant, as set out below.

   (a)Bundle of documents with respect to the applicant's claim to the Ombudsman  (Exhibit A1).

   (b)Statement dated 9 May 2001 with respect to employment opportunities for the applicant (Exhibit A2).

3. There is no dispute that the applicant left Australia and travelled to Brasil on 29 November 1999, returning to Australia on 10 February 2000 and that his NSA was cancelled on 29 November 1999. 

4. The applicant, in lodging his appeal, gave the following appeal reasons:

   "Appeal Reasons:
   I appeal cancellation of my newstart allowance from 29th November 1999 as I reasonably expected to receive continuing payments to cover living expenses on the basis of NO written Centrelink feedback advice of debt or penalty concerning previous international travel.  I cannot afford to travel for the fun of it without income.  I hoped to teach English and obtain income in Brasil.  I expected to make a statement of any income on my next newstart form.  I targeted a business region NOT a tourism destination like Rio, Brasilia or the Amazon.
   In summary:
   I blame Centrelink administrative process, poor timeliness/action and lack of clear written advice for the misunderstanding and my subsequent actions and penalty of loss of the central financial support.  Since a letter (dated 23rd August 1999) and a few phone calls with Joan Martin of Centrelink (Coffs Harbour) up to 14 September 1999, I received NO communication informing me of any debt or cancellation of my newstart allowance until 10 February 2000.  Letters mailed to my post office box were not read as I was overseas and I received NO email (address supplied in letter to Joan Martin 27th November 1999).  I also did not receive any advice until early February 2000 (Clink female 31 January 2000 forwarded from my brother) but Joan Martin would not communicate by email."

1. The principal issue in this matter is whether or not the decision to cancel the applicant's NSA on 29 November 1999 was correct and if so whether or not there are special circumstances pursuant to the Social Security Act 1991 (the Act), which should be considered in determining this matter.
   LEGISLATION

2. The relevant provisions of the Act are as set out below:

   "593(1)
   …..

   (g)       throughout the period the person:

   (i)subject to subsection (2B), is at least 21 years of age and has not reached the pension age;  and

   (ii)is an Australian resident;  and

   (iii)subject to subsection (1A), is in Australia;  and……

   593(1A) [Person seeking medical treatment outside Australia]  For the purposes of subparagraph (1)(g)(iii), if:

   (a)a person is, under Subdivision BA, not required to satisfy the activity test;  and

   (b)the person is temporarily absent from Australia;  and

   (c)the person is absent in order to seek medical treatment of a kind that is not available in Australia;

   the person is taken to be in Australia during:

   (d)if the period is not more than 3 months – the whole of the period;  or

   (e)if the period is more than 3 months – the first 3 months of the period."

CONSIDERATION

1. As stated above, there is no dispute that the applicant left Australia on 29 November 1999.   The provisions of the Act clearly state that if a person travels overseas such a person is not eligible for NSA.  Exemptions to this provision are provided in section 593(1A) where travel overseas is for medical reasons. 

2. Mr. Brittan travelled overseas to explore and, if possible, to engage in teaching English to people in Brasil who were planning to visit the 2000 Olympics in Sydney.  In his oral evidence, Mr. Brittan reinforced this as his sole purpose for travelling overseas.  As such he clearly falls within the provisions of the Act calling for cancellation of his NSA and the Tribunal so finds.

3. Turning then to the question of special circumstances.  At the hearing Mr. Brittan impressed the Tribunal as an entirely credible witness and his evidence was not in any way questioned by the respondent.  The Tribunal accepts that he travelled overseas on 29 November 1999 with the expectation that his NSA would continue while he sought employment overseas.  The Tribunal also accepts that he did this in good faith and in the absence of any timely notification to the contrary from the department.

4. In his evidence, Mr. Brittan stated that previously he had travelled overseas to Brasil in similar circumstances to the visit in question and that he had been paid NSA during this visit.  He was not informed, prior to undertaking his second visit, that these payments were being treated as overpayments.  The Tribunal notes that the SSAT, in considering this matter and deciding to waive Mr. Brittan's debt owed to the Commonwealth as a result of the overpayments said:

   "17.  The Tribunal has found that Mr. Brittan gave notice of his intention to leave Australia when he submitted his Newstart application claim form on about 16 July 1999.  He made the decision to travel overseas in early July so his advice was within the fourteen day period required.  Mr. Brittan took every reasonable action to advise of his intended overseas travel with his discussion of this with his case worker and in submitting his form.  He was not required to submit another newstart allowance claim form until 24 September which was after his return.  The Tribunal notes that this form is not on the Centrelink file.
   18.  Mr. Brittan believed that he would receive newstart allowance if he travelled overseas and looked for work.  He regarded the response of his Employment National case worker and the Centrelink officer as supportive of his decision.  He had met his notification obligations although he had no awareness of the fact that newstart allowance was not payable when he was not in Australia."  (T2/7)

1. With respect to access to mail while he was overseas, the applicant stated that there were no arrangements to clear his post office box while he was away and that he had unsuccessfully attempted to arrange email address of Departmental officers.  He said that he had internet access to his bank account but it was not until shortly before he arrived home that he became aware that NSA payments were not being credited to his bank account. 

2. The Tribunal appreciates why the applicant was concerned to discover on return to Australia that his NSA was not paid while he was on his second overseas trip;  and that this caused him financial difficulty.  The Tribunal notes that the SSAT exercised an available discretion in waiving the debt arising from overpayment of NSA to Mr. Brittan when he was first overseas.  The Tribunal is also mindful that the communication difficulties between the applicant and Centrelink at that time bear similarity to the circumstances in this matter.  However, while the provisions of the Act allow discretion in a number of areas such is not the case with respect to the issues in this matter, apart from a person seeking medical treatment outside Australia.

3. It follows therefore from the finding in paragraph 8 that the Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I.R. Way, Member

Signed:         .....................................................................................
           R. Hayes, Associate

Date/s of Hearing  10 May 2001
Date of Decision  8 June 2001       
Applicant  Mr. Brittan, himself 
Respondent  Mr. S. Letch, departmental advocate