Burstyner and Secretary, Department of Family and Community Services

[2005] AATA 938

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL          № V2004/1251

GENERAL  ADMINISTRATIVE  DIVISION

Re:            SHANE MALONE BURSTYNER

Applicant

And:         SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             27 September 2005

Place:Melbourne

Decision:      The Tribunal affirms the decision under review

(sgd) Regina Perton

Member

SOCIAL SECURITY – failure to provide information – cancellation of disability support information – manner of service of notices – third party information – decision under review affirmed

Social Security (Administration) Act 1999 ss 68, 72, 81, 192, Division 4 of Part 3A, Division 1 of Part 5

Acts Interpretation Act 1901 ss 28A, 29

REASONS FOR DECISION

27 September 2005   Regina Perton, Member

1.      Recipients of social security benefits are required to provide comprehensive information about their assets and finances to Centrelink, which administers programs on behalf of the Department of Family and Community Services.   When a recipient is a potential beneficiary of a trust or income from other individuals or companies, Centrelink generally seeks information about the trust and the person or entity.  Sometimes the information is sought from the recipient; at other times from persons who control the potential source of the income. 

2.      This case concerns Shane Burstyner, a recipient of disability support pension (DSP) who suffers from schizophrenia.  He is a potential beneficiary of family trusts.  It illustrates that Centrelink can seek information about an adult recipient’s income, including documents, from parties related to the beneficiary who are not Centrelink clients themselves.  Unfortunately, Shane has been caught in the cross-fire, in a dispute between his father, Henry Burstyner, and Centrelink over disclosure of information.  Centrelink cancelled his pension due to his and his father’s failure to provide Centrelink with details about the assets and management of trusts of which Shane was a potential beneficiary.  His father has argued that Centrelink does not require nor is it entitled to receive that information.   

3.      Shane had been the recipient of DSP and other Centrelink benefits for some years when this particular dispute arose.   During February and early March 2004, Centrelink sought information from Shane concerning a short period of employment and other matters.  Shane’s father and brother, who are both solicitors, attempted to communicate with Centrelink on behalf of Shane, but their attempts were thwarted due to privacy legislation requirements. 

4.      On 18 March 2004, Shane and Henry Burstyner attended an interview at Centrelink.  Centrelink’s notes indicate that Shane told an officer that he held three bank accounts jointly with his partner, who works full-time, but he does not know her income; and that he changes address from time to time.  After the interview, Centrelink requested further information about a number of financial matters including the family trust of which Shane Burstyner was a discretionary beneficiary.  Henry Burstyner, who controls the trust, objected to providing details both at the interview and subsequently in writing.  

5.      On 31 March 2004, Shane’s DSP was suspended for failing to reply to correspondence.  On 5 May 2004, Henry Burstyner and Shane’s mother, Dr Judith Burstyner, were appointed as correspondence nominees for their son, which allowed them to deal with Centrelink on their son’s behalf.   On 4 June 2004, Shane’s DSP was cancelled for failing to reply to correspondence.

6.      An authorised review officer affirmed the Centrelink decision. The Social Security Appeals Tribunal (SSAT) on 27 September 2004 also determined that the cancellation of Shane’s DSP was correct.  On 4 November 2004, Shane applied for review of the decision.

7.      The major issue before the Tribunal is whether Shane Burstyner’s DSP should have been cancelled.  Other, subsidiary, issues before the Tribunal are:

·   Is Centrelink entitled to seek financial information from a social security recipient and/or another person?

·   If so, were notices seeking information appropriately served?

Is Centrelink entitled to seek financial information from a social security

recipient and/or another person?

8. Henry Burstyner, who appeared on behalf of his son at the hearing, stated that at the interview on 18 March 2004, a Centrelink officer had given him a form to fill out concerning the trust. He said that he told the officer at the time, and reiterated in writing, that he did not believe either he or Shane should have to provide such details. He submitted that people who are not in receipt of social security benefits should not have to provide Centrelink with information. Henry Burstyner argued that s 192 of the Social Security (Administration) Act 1999 (the Administration Act) which contains a general power allowing Centrelink to obtain information from a person, does not extend to a person who is not the recipient of benefits. He also submitted that there is a distinction between the power to require information and to compel information.  Henry Burstyner stated that Centrelink had sufficient information available to be able to make a decision on Shane’s entitlements without having to seek further details about the trust.

9. David Perdon, the advocate representing Centrelink, pointed out that the SSAT had determined that service of notices on Shane concerning the trust was valid pursuant to ss 68 and 72 of the Administration Act. Sections 68 and 192 are both provisions that allow Centrelink to obtain information from a person in relation to matters relevant to his social security payments. Mr Perdon argued that Shane had been served with a notice to provide information within a certain period and had failed to do so.

10. There is no case law, of which the Tribunal is aware, clarifying whether s 192 of the Administration Act applies to persons other than persons seeking or receiving social security benefits. The Social Security Guide published by the Department of Family and Community Services ( in relation to Part 5 of the Administration Act, states that:

Centrelink's power to obtain information
Centrelink has wide-ranging powers to obtain information or require documents to be produced that are relevant to decisions made under social security law. Information may relate to:

·qualification,

·payability,

·the application of international agreements,

·concession cards,

·financial supplements, or

·the location or financial position of debtors.

These powers may apply to any person, including a customer or a third party.

11. The explanatory memorandum and second reading speeches concerning the Administration Act are not helpful in ascertaining the scope of section 192. There is no mention of the specific provision in the second reading speech. The explanatory memorandum concerning Division 1 of Part 5 (which includes s 192) indicates that the Division binds the Crown in all its capacities and applies to all persons, irrespective of their nationality or citizenship.  It also provides that a request may be made of a person to give information and provide a document if it is considered relevant to a number of specified matters.

12. Regardless of whether Henry Burstyner can be required to give information to Centrelink in his own right, the Tribunal is satisfied that Centrelink can request Shane Burstyner to provide details relevant to his DSP under s 68 or s192. The Tribunal is satisfied that details of family trusts, of which a social security recipient is a potential beneficiary, is relevant information for Centrelink purposes.

13.     Furthermore, once Henry Burstyner became Shane’s correspondence nominee on 5 May 2004, Centrelink was entitled to serve the notices on him that it would otherwise have served on Shane and to expect compliance with those notices (Part 3A, Division 4, of the Administration Act). However, the Tribunal notes that the notice under consideration in this matter was served prior to Henry Burstyner’s appointment as correspondence nominee.

Were notices seeking information appropriately served?

14.     Henry Burstyner submitted that neither he nor Shane had received a notice from Centrelink dated 18 March 2004 asking for details of family trusts (of which Shane was a discretionary beneficiary) or rental and partner income details etc.    

15.     Centrelink records indicate that a letter was sent to Shane Burstyner on 18 March 2004 addressed to the post office box that had been his registered postal address since 25 October 2000.  Centrelink asked Shane to provide a range of documents including his and his partner’s latest bank statements, details of any trusts in which he was a possible beneficiary and his partner’s eight most recent payslips. The letter also spelled out the possible consequences of failing to provide the information, namely cancellation of his DSP.  Some of the requested documents were provided to Centrelink on 29 March 2004.   On 31 March 2004, Shane’s DSP was suspended.  The SSAT has already found that the suspension was premature as it took place less than 14 days after the letter to Shane.  The Tribunal agrees with the SSAT that the suspension was premature. 

16.      Henry Burstyner wrote to Centrelink on 20 April 2004 objecting to the suspension of his son’s payments.  He referred to an earlier letter he had sent to Centrelink dated 18 March 2004 to which he had not had a response.  In that earlier letter, Henry Burstyner had objected to providing any information to Centrelink about the family trust.

17.     On 5 May 2004, Shane’s parents were approved as correspondence nominees.  On 4 June 2004, Shane’s DSP was cancelled due to his failure to respond to Centrelink’s request.

18. Centrelink’s letter dated 18 March 2004 constituted notice to Shane to provide certain information to Centrelink. His failure to do so led to the eventual cancellation of DSP. Sections 28A and s 29 of the Acts Interpretation Act 1901 direct that an assumption is to be made that if Centrelink sends a notice by prepaid post to the last known address of a person, the person is deemed to have been given the notice.  Notice is deemed to be given even if the person to whom the letter was addressed did not see the letter; as may have occurred in this case.  The Tribunal is somewhat perplexed as to why Shane would have provided some of the material requested on 29 March 2004 if he had not been requested to do so, either in person at the interview or by post.   Based on Centrelink’s records, the Tribunal is satisfied that Centrelink notified Shane Burstyner that it required certain information from him and that he did not provide all that was requested of him, in particular the PT (private trust) module. 

Was cancellation of Shane Burstyner’s DSP  valid?

19. Section 81 of the Administration Act allows Centrelink to cancel or suspend DSP where the recipient has been given notice pursuant to section 68 and has not complied with a requirement of that notice. The Tribunal is satisfied that Shane Burstyner was given notice pursuant to section 68 and failed to comply with all the requirements of the notice. Therefore, the cancellation of DSP on 4 June 2004 was valid.

20.     The Tribunal notes that further information concerning Shane’s financial affairs has been provided to the SSAT and to this Tribunal.  Centrelink may now have much of the outstanding financial information it required of Shane Burstyner.  However, even if all the relevant documents have now been provided, the Tribunal is not in a position to reinstate DSP.  The Tribunal’s power is limited to an examination of the decision under review, namely the decision on 4 June 2004 to cancel DSP. 

DECISION

21.     The Tribunal affirms the decision under review.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  10 March 2005
Date of decision:  27 September 2005
Advocate for applicant:                Mr Henry Burstyner, Solicitor
Advocate for respondent:            Mr David Perdon, Centrelink