Butler and Secretary, Department of Family and Community Services

[2004] AATA 735

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/480

GENERAL ADMINISTRATIVE DIVISION

Re:         GEORGE ANTHONY BUTLER

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             13 July 2004

Place:            Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - suspension of newstart allowance ‑ failure to attend appointment with psychologist - whether reviewable and reasonable

Administrative Appeals Tribunal Act 1975 ss 3(3), 37
Social Security Act 1991 s 23

Social Security (Administration) Act 1999 s 63(3), (3A), (5), (11)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

REASONS FOR DECISION

13 July 2004  G.D. Friedman, Member

1.      This is an application by George Anthony Butler (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 March 2004 which found that the SSAT had no jurisdiction to review a decision requiring the applicant to attend an appointment on 18 November 2003.  The SSAT also affirmed a decision dated 8 December 2003 of an authorised review officer of Centrelink to suspend the applicant’s newstart allowance because he failed to attend an appointment on 18 November 2003.

2.      At the hearing of this matter on 6 July 2004 the applicant represented himself, assisted by Ms S. Monaghan, and Mr M. Todd, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T55) plus one exhibit (Exhibit A1) lodged by the applicant.      

BACKGROUND

4.      The applicant was born on 22 July 1963.  He was in receipt of newstart allowance from March 2001 to 2 June 2003, with an exemption from the activity test due to incapacity.  When his exemption expired the applicant continued to receive newstart allowance.  On 6 October 2003 the applicant’s newstart allowance was suspended due to his failure to contact Health Services Australia Ltd and make an appointment to attend a medical review.

5.      After reviewing the decision, an authorised review officer set aside the suspension, and advised the applicant, by letter dated 28 October 2003, that he was  required to attend an appointment with a psychologist at 9:00 a.m. on 18 November 2003 (the appointment).  On 29 October 2003 Centrelink sent a letter to the applicant with details about the appointment, and stated that his failure to attend the appointment may lead to the cessation of newstart allowance.

6.      On 18 November 2003 the applicant’s nominee attended Centrelink with a letter from the applicant, explaining that the applicant would not be attending the appointment.   

7.      On 1 December 2003 Centrelink decided to suspend the applicant’s newstart allowance because he had not attended the appointment.  On 12 December 2003 the applicant lodged an application with the SSAT for review of the decision requiring him to attend the appointment with the psychologist.  On 8 December 2003 an authorised review officer affirmed the decision to suspend his newstart allowance.   On 4 February 2004 the applicant sought review of the 8 December 2003 decision by the SSAT.  On 12 February 2004 the SSAT decided that it had no jurisdiction to review the decision to require the applicant to attend the appointment with the psychologist.  On 23 March 2004 the SSAT affirmed the decision to suspend the applicant’s newstart allowance.  On 21 April 2004 the applicant lodged an application with the Tribunal for review of the SSAT decisions.

8.      The issues before the Tribunal are whether the requirement to attend the appointment was a reviewable decision and whether the decision to suspend the applicant’s newstart allowance for failing to attend the appointment was correct.

EVIDENCE

9.      Before the hearing the applicant provided a number of documents (Exhibit A1) in which he described the events leading to the suspension of his newstart allowance.  In oral evidence he said that, after receiving the letter from Centrelink dated 28 October 2003, he contacted Centrelink and stated that he did not wish to attend the appointment, but was not told that attendance was voluntary.  He said that he did not receive the letter dated 29 October 2003.  The applicant explained that he was unable to attend the appointment for medical reasons, and sent a representative to Centrelink with a letter of explanation.  He told the Tribunal that he considered this to be a reasonable and sufficient account of his non-attendance.

10.     The applicant stated that the decisions under review should be set aside because a number of documents, including medical reports, had been obtained by Centrelink without his consent.  He also referred to several instances where Centrelink officers had breached privacy laws by obtaining and disclosing information held about him, and he claimed that this invalidated decisions that had been made against him.  The applicant pointed to actions by particular Centrelink officers which he said were unhelpful and insulting.  He noted that Centrelink had refused to take his claims seriously or to provide genuine assistance to him, which had led to a deterioration of his health problems.

11.     The applicant emphasised that he is suffering extreme financial difficulties as a result of Centrelink’s failure to grant him any benefits.  He stated that, despite his medical problems, he wished to seek appropriate employment, and his newstart allowance should be restored.     

CONSIDERATION OF THE ISSUES

12. In respect of the requirement to attend an appointment, Mr Todd submitted that the referral by Centrelink was not a decision under s 23(1) of the Social Security Act 1991, which provides that:

“decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;

Note:   subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines "decision" as including:

·   making, suspending, revoking or refusing to make an order or determination;

·   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

·   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

·   imposing a condition or restriction;

·   making a declaration, demand or requirement;

·   retaining, or refusing to deliver up, an article;

·   doing or refusing to do any other act or thing.

Mr Todd said that the referral did not have the …character or quality of finality, an outcome reflecting something in the nature of a determination (Mason J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Therefore, it was not a reviewable decision. He said that the appointment was a preparatory step in the process of determining the applicant’s continuing entitlement to newstart allowance.

13. In respect of the decision to suspend the applicant’s newstart allowance, s 63(3) of the Social Security (Administration) Act 1999 (the Act) provides that Centrelink may require, among other things, a person to attend an appointment for a specific purpose in the consideration of the person’s entitlement to newstart allowance: 

63.(3)      If the Secretary is of the opinion that a person to whom this subsection applies should:

(a)       attend an office of the Department; or

(b)       contact the Department; or

(c)       attend a particular place for a particular purpose; or

(d)       give information to the Secretary;

the Secretary may notify the person that he or she is required, within a specified time, to:

(e)       attend that office; or

(f)        contact the Department; or

(g)       attend that place for that purpose; or

(h)       give that information;

as the case may be.

14. Section 63(3A) of the Act provides that s 63(3) applies to a person who is receiving, or has made a claim for, newstart allowance. Section 63(5) of the Act provides that:

63.(5)      If:

(a)the Secretary notifies a person to whom subsection (3) applies of a requirement under that subsection; and

(b)       the requirement of the notification is reasonable; and

(c)       the person does not comply with the requirement;

newstart allowance or special benefit is not payable and if, at a later time, newstart allowance or special benefit becomes payable to the person, an administrative rate reduction period applies to the person.

Section 63(11) of the Act provides that the notification of the requirements in s 63(3) must inform the person of the effects of the requirement.

15.     Mr Todd submitted that the letters to the applicant dated 28 October 2003 and 29 October 2003 fulfilled Centrelink’s obligations under the Act to inform him of the requirements in relation to the appointment.  He stated that, in the circumstances of this case, the requirement by Centrelink that the applicant attend a psychologist was reasonable.

16.     In reaching a decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

17.     In respect of the requirement to attend the appointment, the Tribunal notes that, for the purposes of the Act, a decision …must resolve an actual substantive issue (Deane J in Bond).  In the matter before it the Tribunal agrees with Mr Todd, that the requirement for the applicant to attend the appointment was a preparatory step to the determination of the applicant’s continuing entitlement to newstart allowance, and did not resolve the issue.  Therefore, the Tribunal finds that the requirement was not a reviewable decision for the purposes of review by the SSAT or the Tribunal.

18.     In respect of the decision to suspend the applicant’s newstart allowance, the Tribunal accepts the applicant’s evidence that he feels frustrated and angry over the way he believes Centrelink has handled his claims.  The Tribunal also notes that the applicant is keen to work, but is not willing to provide the medical and other information requested by Centrelink or to comply with all the requirements specified by Centrelink that would enable him to receive newstart allowance.  It is clear that the applicant has lost confidence in Centrelink‘s ability to treat him fairly.

19.     The Tribunal accepts that the applicant has suffered from health problems for a long time, and that he feels strongly that he is not in a position to provide the medical evidence that has been sought by Centrelink.  However, the Tribunal agrees with Mr Todd that, in view of the applicant’s medical situation and the difficulties he has faced in obtaining medical evidence to support his claims that he is unable to work or study at present, the requirement that he attend the appointment was reasonable under s 63(5)(b) of the Act, in order to clarify his entitlement to newstart allowance or another type of payment.  The applicant was notified of the appointment and the effects of the requirement to attend by letters dated 28 October 2003 and 29 October 2003 (s 63(11) of the Act).

20.     The Tribunal finds that the applicant failed to attend the appointment as required and did not seek an alternative appointment, as he believed that there was no necessity for him to see a psychologist.  Although he sent a representative to Centrelink with a letter, he did not provide medical evidence for his failure to attend.  In all the circumstances, the Tribunal finds that the decision to suspend the applicant’s newstart allowance under s 63(5) of the Act was correct.

DECISION

21.     The Tribunal affirms the decisions under review.

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

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  6 July 2004
Date of decision:  13 July 2004
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Mr M. Todd, Centrelink