Butler and Secretary, Department of Family and Community Services and Anor

[2005] AATA 763

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/358

GENERAL ADMINISTRATIVE DIVISION

Re:         GEORGE ANTHONY BUTLER

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

First Respondent

SECRETARY,
  DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Second Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             10 August 2005

Place:            Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY - method of lodging newstart activity statements – correspondence nominee – refusal to accept forms - jurisdiction  

Administrative Appeals Tribunal Act 1975 ss 3(3), 37
Social Security Act 1991 s 631

Social Security (Administration) Act 1999 ss 16, 67, 68, 72, 123H, 144, 179, 181

Acts Interpretation Act 1901 s 25C

REASONS FOR DECISION

10 August 2005  Regina Perton, Member

1.      George Anthony Butler (the applicant) has been in dispute with Centrelink over a range of issues for some time.  Centrelink officers act as delegates of the Secretary to the Department of Family and Community Services (the first respondent) and of the Secretary to the Department of Employment and Workplace Relations (the second respondent).  On 27 October 2004, the second respondent took over the administration of Newstart Allowance (NSA) from the first respondent.  In this matter, which arises out of four decisions made by the Social Security Appeals Tribunal (SSAT) on 31 March 2005, the delegates acted on behalf of each of the respondents at different times in relation to the ongoing dispute with the applicant.  For convenience, the Tribunal will refer to both respondents as the respondent.

2.      The SSAT affirmed decisions of the respondent’s delegate not to accept applications for Newstart Allowance (NSA) lodged on 22, 23 and 29 December 2004 and to write-off rather than waive a debt of $461.50, being an advance of NSA paid on 5 November 2003.  The SSAT also decided that it did not have jurisdiction to deal with two matters: the first, whether the respondent should have accepted an application for payment of NSA lodged on 5 August 2004 and the second, a decision to refuse payment of NSA, effective from 23 July 2004 as a result of the non‑acceptance of the forms.   

3.      At the hearing on 20 June 2005, the applicant was represented by Ms Shayne Monaghan.  Ms Kayren Paul, a Centrelink advocate, represented the respondent.  The applicant gave evidence by telephone.  The Tribunal concurrently took evidence in relation to another application for review lodged by the applicant (V2005/246).  At the applicant’s request, the consideration of another related application for review (V2005/288) has been deferred.

4. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21) (the AAT Act) and additional documents provided by the applicant and respondent prior to the hearing.

BACKGROUND

5.      The applicant, who was born on 22 July 1963, has been receiving NSA for several years.  The applicant’s NSA has been suspended or cancelled from time to time and then reinstated.  At present, he is not receiving NSA due to an ongoing dispute with Centrelink over the method of lodgement of forms and other matters.  One of the key factors leading to this application for review has been the direction that the applicant lodge forms in person at the Centrelink office and the applicant’s refusal and/or inability to do so.  The applicant has completed the relevant fortnightly forms, but has either asked Ms Monaghan to lodge the forms on his behalf at the Centrelink office or faxed the forms.  The issues under consideration arise primarily because of Centrelink’s refusal to accept the forms that Ms Monaghan has tendered at its office or that the applicant has faxed; and its insistence that all forms be lodged by the applicant in person.

6.      On 22 June 2004, an authorised review officer (ARO) of the respondent set aside a decision of a delegate to refuse a claim for NSA which had been lodged by fax on 14 May 2004.  The applicant was notified of the ARO’s decision on 16 July 2004.  On 21 July 2004, the ARO sent a further letter to the applicant stating that his fortnightly claims for payment must be lodged in person due to directions given by the respondent’s delegate.  On 2 August 2004, Ms Monaghan lodged a number of original forms on the applicant’s behalf at the Centrelink office which were accepted and the applicant was paid NSA between 14 May 2004 and 22 July 2004.  On 5 August 2004, Ms Monaghan attempted to lodge the applicant’s signed, but photocopied, form for the period from 23 July 2004 to 5 August 2004 at the Centrelink office.   However, she was told that the form would not be accepted as it was not the original form sent to the applicant, and furthermore, that he was required to lodge the form in person.  On 6 August 2004, the applicant faxed the form, which had been rejected on the previous day, to the Centrelink office.  However, it was not accepted and his NSA payments ceased from 23 July 2004.  The decisions concerning the non-acceptance of the forms and cancellation of NSA were affirmed on review by an ARO.  The SSAT found that it did not have jurisdiction to deal with these matters.   

7.      Ms Monaghan was appointed as the applicant’s correspondence nominee on 21 December 2004.  On 22, 23 and 29 December 2004, she attempted to lodge fresh fortnightly forms for NSA on the applicant’s behalf at the Centrelink office, without success.  An ARO subsequently confirmed the decision to refuse lodgement of the forms on the basis that a direction had been made that the applicant was required to lodge the forms in person.   The SSAT also affirmed the decision.

8.      While the SSAT, in its decision of 31 March 2005, considered the issue of whether the applicant’s debt was incurred as a result of the advance of NSA, that issue had already been dealt with on 25 January 2005 by a differently constituted SSAT.  The applicant lodged an application for review of that SSAT decision on 17 March 2005 and it is the subject of a separate decision by this Tribunal (V2005/246).

EVIDENCE

9.      Prior to the hearing, the applicant provided the Tribunal with a considerable number of documents in which he described in detail his dispute with Centrelink in relation to his claims for, and Centrelink’s cancellation of, his NSA; and the impasse in relation to the method of lodgement of claims for its payment.  He also provided copies of original documents he held, which he deemed relevant to this and other applications for review under consideration. 

10.     Among the documents tendered by the applicant were copies of the instructions given by the respondent as to how the fortnightly requests for payment, which the applicant was required to complete, were to be delivered.  One set of instructions requires the applicant to post the form by Thursday 5 August 2004 in a stamped, addressed envelope to Centrelink’s Dandenong office.  A second photocopied form, which was to be returned on a Monday (the actual date of return has been blocked out on the copy), requires the applicant to return the form personally to the Dandenong office.   

11.     In his oral evidence, the applicant indicated that Centrelink had not provided all of the documents relevant to his case and he expressed his concerns about deliberate concealment of certain material as well as breaches of his right to privacy.

12.     The applicant told the Tribunal that there was no requirement for the forms he provided to Centrelink to be the original printed form.  He pointed out that forms that are returned by fax are not originals and that Centrelink often accepts claims by fax.  He said that he had completed and signed photocopies of forms he received, and kept the originals so that he had evidence of what he had submitted, as Centrelink had mislaid or destroyed many of his documents in the past.  He indicated that Centrelink officers should not refuse to accept original signatures on photocopies of forms.  He also pointed out that he had been allowed to lodge forms by fax or through Ms Monaghan prior to August 2004.   

13.     The applicant said that it was unreasonable for Centrelink to require him to lodge forms personally given his state of health.  He stated that his Health Care Card had been cancelled concurrently with his NSA and, while he was aware he could apply separately for a fresh card, he was not prepared to do so as he could not afford ongoing treatment or medication without any income.  He stated that he was not able to provide medical certificates to Centrelink because his previous doctor would not see him.  He also said that he was not prepared to attend a hospital clinic in his region as he had lost faith in the local hospital network due to incorrect treatment in the past.  The applicant described the negative impact on his mother of his financial and health difficulties, as well as the impact on Ms Monaghan.

14.     Ms Monaghan confirmed the applicant’s account of his relationship with Centrelink and his health and financial issues.  She described her difficulties in trying to persuade Centrelink officers to accept forms she attempted to lodge on the applicant’s behalf.

CONSIDERATION OF THE ISSUES

15. The Tribunal does not have the power to deal with every dispute arising under social security law. Its jurisdiction is limited by the provisions of the AAT Act and the Social Security (Administration) Act 1999 (the Administration Act). Sections 179 and 181 of the Administration Act provide that the Tribunal may only review a social security decision that has been reviewed by the SSAT. However, the SSAT is not entitled to review all decisions made by the respondent. Section 144 of the Administration Act sets out the decisions which the SSAT cannot review (Non‑reviewable decisions), and which, consequently, the AAT cannot review. 

16.     Non-reviewable decisions include those decisions under s 16 of the Administration Act which describe the ways in which a claim for a social security payment may be made and the section empowers the respondent to specify the manner in which a written claim can be lodged. A decision by the respondent to give a notice under Subdivision B of Division 6 of Part 3 of the Administration Act, which encompasses s 67 to s 74 of the Administration Act, is also a non-reviewable decision.

17. Section 68 of the Administration Act allows the respondent to direct a recipient of a social security payment to inform Centrelink about matters that might affect the person’s payment. This provision includes documents such as fortnightly returns, such as those that the applicant was required to lodge. Section 72 sets out the powers of the respondent in relation to how the information is to be provided. Section 72(1)(c) allows the respondent to specify how the person is to give the information or statement to Centrelink.

18. The dispute between the applicant and respondent concerning the manner of providing the fortnightly forms to Centrelink arises out of a direction given pursuant to s 68 and s 72. The Tribunal does not have the power to review a decision as to how a social security recipient is to lodge a notice with the respondent. The Tribunal therefore agrees with the SSAT that there is no jurisdiction to review the respondent’s decisions refusing the forms tendered in early August 2004 through Ms Monaghan’s attendance at the Centrelink office or by fax.

19. Section 631 of the Social Security Act 1991 provides for cancellation of NSA where a person has not complied with a requirement made under s 68 of the Administration Act. The applicant’s NSA was cancelled as the result of Centrelink’s refusal to accept the forms he attempted to lodge in early August 2004, for the fortnight commencing 25 July 2004. As the Tribunal has no power to change the decision on the manner of lodgement of the forms, it has no option but to accept that the cancellation was appropriate. The SSAT found that it could not deal with the cancellation as the matter had not been the subject of a review by an ARO. The applicant has pursued a number of reviews of Centrelink decisions and given the blurring of which particular issues were dealt with in various reviews, it is unclear whether the applicant had sought review of this matter prior to the SSAT decision. Regardless of whether the SSAT made its decision on the basis that the matter was outside its jurisdiction, the Tribunal is unable to set aside the cancellation due to its inability to review the direction regarding the method of lodgement of the forms.

20. Ms Monaghan’s attempts to lodge forms on the applicant’s behalf on three occasions in late December 2004 are also affected by the jurisdictional boundaries on the Tribunal’s powers of review in the Administration Act. At the time of the applicant’s attempted lodgement of the forms on 22, 23 and 29 December 2004, the direction regarding personal lodgement was still in force. Division 2 of Part 3A of the Administration Act sets out the appointment process for nominees and their functions and responsibilities. Section 123H(1) provides that a correspondence nominee can undertake any action on behalf of the benefit recipient except for certain activities, which are set out in s 123H(4).

123H(4)   If, under a provision of the social security law, the Secretary:

(a)gives to a benefit recipient who has a correspondence nominee a notice making a requirement of the benefit recipient;

(b)…

subsection (1) does not authorise the correspondence nominee to do an act that is required by the notice or the notification, as the case many be, to be done by the benefit recipient

21.     The respondent gave notice to the applicant prior to December 2004 that he was required to lodge his forms in person; and that directive was still in force at the time Ms Monaghan, as the applicant’s correspondence nominee, attempted to lodge forms on the applicant’s behalf.  As indicated above, the Tribunal does not have the legal power to change a delegate’s direction about how a form is to be lodged.  Therefore, the Tribunal has no choice but to affirm the decision of the SSAT that Ms Monaghan was not entitled to lodge forms on the applicant’s behalf in December 2004.

ADDITIONAL COMMENTS

22.     In this case, were the Tribunal empowered to change the method for lodgement of fortnightly forms, it would have decided that lodgement requirements could be met either by fax or by Ms Monaghan delivering the documents on the applicant's behalf.  Regrettably, it cannot do so because it lacks jurisdiction to make such an order.  It is clear to the Tribunal that the applicant has been willing to comply with the respondent’s direction in relation to completing fortnightly forms but has, for medical and/or other reasons, convinced himself he is unable to personally visit the Centrelink office. 

23.     Ms Paul, in a supplementary Statement of Facts and Contentions, indicated that the requirement that NSA recipients lodge their application for payment forms in person is part of a strategy to ensure that the correct payment is being paid to the correct person.  The Tribunal notes that there is no suggestion or evidence in this matter of fraudulent signatures or identity or other such issues that may have mandated personal attendance.  The evidence indicated that the applicant and Ms Monaghan are well-known by the staff of the relevant Centrelink office.  Furthermore, despite the lack of a medical certificate covering the full period, an ARO and the SSAT, in a separate, outstanding, application for review (that the applicant specifically requested that the Tribunal defer reviewing (V2005/288)), granted the applicant an exemption from the activity test for NSA until 30 April 2004.  Based on the evidence before it, the Tribunal is satisfied that the applicant is in dire financial, and possibly medical, circumstances.  The Tribunal hopes that Centrelink reconsiders its directive concerning personal lodgement of fortnightly returns for the period from 23 July 2004 to the present, in light of the evidence of the applicant’s circumstances.  The Tribunal also hopes that the applicant will expeditiously seek medical attention for his health problems and provide a report to the respondent.  If his preferred doctor is unwilling to continue to have the applicant as his patient, the applicant ought to consider an alternative source of medical assistance.  

24. Another issue raised by the applicant in his submissions was the refusal of a Centrelink officer to accept a photocopied form with an original signature on it. Section 16(2) of the Administration Act states that a claim must be in accordance with a form approved by the Secretary. Section 25C of the Acts Interpretation Act 1901 also states that where a form is prescribed, substantial compliance rather than strict compliance is sufficient.  The Tribunal is of the view that a photocopy of a form with the answers written in original ink should be considered sufficient compliance with a Centrelink directive to lodge a particular form.   

DECISION

25.     The Tribunal affirms the decisions under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  20 June 2005
Date of decision:  10 August 2005
Advocate for the applicant:          Ms S Monaghan
Advocate for the respondent:       Ms K Paul, Centrelink