Camille Lee and Secretary, Department of Social Services
[2014] AATA 630
[2014] AATA 630
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1238
Re
Camille Lee
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 1 September 2014 Place Perth The Tribunal sets aside the decision under review and remits the matter to the Secretary for reconsideration in accordance with the Tribunal’s recommendation in paragraph 43 of the following Reasons for Decision.
...(Sgd) CR Walsh.............
Senior Member CR Walsh
CATCHWORDS
Social Security – entitlement to Austudy in relevant period – overpayment – debt due to the Commonwealth – whether all or part of debt should be waived – whether debt solely attributable to administrative error made by the Commonwealth – whether “special circumstances” exist –whether debt should be written off – entitlement to Newstart Allowance in relevant period – notional entitlement – decision under review set aside and remitted to the Secretary for reconsideration in accordance with the Tribunal’s recommendation.
LEGISLATION
Social Security Act 1991 – s 568 – s 569(1) – s 569A – s 569C – s 569E(2) – s 569G – s 569H – s 593 – s 593(1)(b) – s 601(1) – s 601(1A) – s 601(4) – s 601(5) – s 603A – s 603AA – s 603AB – s 1223(1) – s 1223ABE(2) – s 1236(1) – s 1236(1A) – s 1236(1B) - s 1237A(1) – s 1237AAC – s 1237AAD
Social Security (Administration) Act 1999 – s 68
CASES
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security (1984) 6 ALD 1
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133
Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 739
Groth and Secretary Department of Social Security [1995] FCA 1708
Re Ivovic and Director General of Social Services [1981] AATA 57
Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659
REASONS FOR DECISION
Senior Member CR Walsh
1 September 2014
INTRODUCTION
Ms Lee seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 24 February 2014, which affirmed a decision of a Centrelink Authorised Review Officer (ARO), dated 23 November 2013, who, in turn, affirmed Centrelink’s decision, dated 14 October 2013, that Ms Lee had a debt due to the Commonwealth of $3,645.25 arising out of an overpayment of Austudy (including a “Student Start-up Scholarship” payment of $1,025) in the period 29 July 2013 to 27 September 2013 (Relevant Period) which debt could not be waived due to Centrelink’s administrative error or “special circumstances” (under s 1237A(1) or s 1237AAD, respectively, of the Social Security Act 1991 (SSA)) or written-off (under s 1236(1) of the SSA).
FACTS
Ms Lee has been receiving Austudy payments from Centrelink since 8 February 2010.
On 5 August 2013, Ms Lee was granted a “Student Start-up Scholarship” payment of $1,025.
In the Relevant Period, Ms Lee was undertaking a Bachelor of Sports Science degree at Murdoch University, Western Australia.
On 14 October 2013, Centrelink decided to cancel Ms Lee’s Austudy payments on the basis that she had an insufficient study load and was not a full-time student in her university course and raised a debt of $3,645.25 for the Relevant Period (Original Centrelink Decision).
On 12 November 2013, Ms Lee requested an internal review of the Original Centrelink Decision by a Centrelink ARO.
On 23 November 2013, an ARO reviewed and affirmed the Original Centrelink Decision (ARO Decision).
On 2 December 2013, Ms Lee applied to the SSAT for a review of the ARO Decision.
On 24 February 2014, the SSAT affirmed the ARO Decision (SSAT Decision). In summary, the SSAT decided that:
· Ms Lee was paid Austudy (including a “Student Start-up Scholarship”) that she was not entitled to receive;
· the amount of Ms Lee’s debt, as calculated by the ARO (being $3,645.25), was correct;
· Ms Lee’s debt arose because she provided incorrect information to Centrelink about her study status. Therefore, Ms Lee’s debt was not solely attributable to an “administrative error” made by Centrelink such that it is not appropriate to waive the debt under s 1237A of the SSA;
· in Ms Lee’s case no “special circumstances” exist which warrant the waiver of her debt under s 1237AAD of the SSA;
· as Ms Lee has capacity to repay the debt it is not appropriate to write-off the recovery of Ms Lee’s debt under s 1236(1) of the SSA; and
· Ms Lee was not entitled to Newstart Allowance in the relevant period as she did not meet the relevant requirements for Newstart Allowance in that period.
On 7 March 2014, Ms Lee applied to this Tribunal for a review of the SSAT Decision. Ms Lee’s stated “Reasons for Application” are as follows:
I don’t think I should have to pay the money back. If I was not eligible for austudy I was eligible for newstart allowance and therefore should be back paid. I was undertaking an ‘approved activity’ during the time as it was practicum for the course which I thought was full time as I was completing 25 hours per week for this.
ISSUES
The relevant issues for consideration by the Tribunal are whether:
(i)Ms Lee was paid Austudy which she was not entitled to in the Relevant Period. If “yes”, whether:
(a) the overpayment of Austudy is a debt due to the Commonwealth;
(b)all or part of the debt should be waived (due to Centrelink’s administrative error or “special circumstances”) or written off; and
(ii)Ms Lee was entitled to be paid Newstart Allowance in the Relevant Period.
ANALYSIS
Entitlement to Austudy
Section 568 of the SSA sets out the general qualification rules for the payment of Austudy. Of relevance to this application is s 568(a) of the SSA which states that a person is qualifies for an Austudy payment in respect of a period if, throughout the period, the person satisfies the “activity test” (in s 569 of the SSA). It is not in dispute that Ms Lee satisfied the other qualification requirements for Austudy in the Relevant Period, namely that she was of “austudy age” and an “Australian resident”, for the purposes of s 568(b) and s 568(c) of the SSA, respectively, in the Relevant Period.
Section 569(1) of the SSA provides that a person satisfies the “activity test” in respect of a period if the person satisfies the Secretary that, throughout the period, the person is “undertaking qualifying study”.
Section 569A of the SSA provides that a person is “undertaking qualifying study”, for the purposes of s 569(1) of the SSA, if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii)was enrolled in the course and satisfied the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(iii)was enrolled in the course and satisfied the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c)the person is a full-time student or a concessional study-load student in respect of that course (see section 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H). [Emphasis added]
There is no dispute that Ms Lee satisfied s 569(1)(a), (b) and (d) of the SSA in the Relevant Period. That is, it is common ground that Ms Lee was enrolled in an “approved course of education”, within the meaning of s 569B of the SSA (being a Bachelor of Sports Science degree at Murdoch University, Western Australia), and that she satisfied in progress rules, in s 569G and s 569H of the SSA, in the Relevant Period.
What is in dispute is whether Ms Lee was a “full-time student” in respect of her Bachelor degree course in the Relevant Period for the purposes of s 569A(c) of the SSA.
Section 569C of the SSA states that a person is a “full-time student” “in respect of a course” if:
(a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester) – the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period – the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period. [Emphasis added]
The phrase “normal amount of full-time study” in respect of a course is defined in s 569E of the SSA, which states:
(1) For the purposes of this Subdivision, the normal amount of full-time study in respect of a course is:
(a) if:
(i)the course is a course of study within the meaning of the Higher Education Support Act 2003; and
(ii)there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;
the full-time load for the course; or
……….
(2) Without limiting subsection (1), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week. [Emphasis added]
According to the Secretary, to determine what the “full-time load” in relation to a particular course of study is, Centrelink uses the information contained on its computer “database”. This information is provided to Centrelink by the educational institution which provides the particular course. The “full-time load” for a course may be based on the total number of “credit points” per Semester or on hours, depending on the course and the institution concerned. When a person applies for Austudy, Centrelink uses the information on its database to determine what the “full-time load” for the applicant’s course is.
In Ms Lee’s case, Centrelink’s database showed that the “full-time load” and, it follows, the “normal amount of full-time study” for a Bachelor of Science degree at Murdoch University is 12 credit points per Semester.
In accordance with s 569C(a) of the SSA a person must undertake in respect of the course for the relevant period at least 75% (i.e. at least three quarters) of the normal amount of full-time study. For Ms Lee, that equates to 9 credit points per Semester.
Ms Lee’s enrolment records from Murdoch University for the Relevant Period show that she was enrolled in 16.6% of normal full-time study in Semester 2 of 2013 (being 2 credits per Semester from 29 July 2016). As such, Ms Lee was not a “full-time student” in respect of her Bachelor of Science degree in the Relevant Period for the purposes of s 569A(c) of the SSA. It follows that Ms Lee was not “undertaking qualifying study” in the Relevant Period (within the meaning of s 569A of the SSA), did not satisfy the “activity test” in the Relevant Period (for the purposes of s 569(1) of the SSA) and did not qualify for the payment of Austudy in the Relevant Period (i.e. because she did not satisfy s 568(a) of the SSA).
Debt Due to the Commonwealth
Section 1223(1) of the SSA provides that if a social security payment (including Austudy) is made to a person and the person obtains the benefit of the payment, and the person was not entitled for any reason to obtain that benefit, the amount of the payment is a “debt due to the Commonwealth” by the person which is taken to arise when the person obtains the benefit from the payment.
Centrelink’s records show that Ms Lee was paid a total of $3,645.25 in Austudy payments (including a “Student Start-up Scholarship” payment of $1,025) in the Relevant Period. For the above reasons, Ms Lee was not entitled to this payment of Austudy and, pursuant to s 1223(1) of the SSA, it constitutes a “debt due to the Commonwealth”.
As stated above, Ms Lee was also paid a “Student Start-up Scholarship” of $1,025 in the Relevant Period. In accordance with s 1223ABE(2) of the SSA, since Ms Lee was not a “full-time student” in her course in the Relevant Period, and did not undertake full-time study at the end of 35 days after her course commenced, the scholarship amount of $1,025 is also a “debt due to the Commonwealth”. Therefore, Centrelink has correctly included this amount in Ms Lee’s total debt to the Commonwealth of $3,645.25.
Waiver of Debt
Administrative error by Centrelink
Section 1237A(1) provides that the Secretary must waive the right to recover the proportion of a debt that is “attributable solely to an administrative error made by the Commonwealth” if the debtor received the payment or payment that gave rise to that proportion of the debt in good faith.
Before the Relevant Period the following occurred:
· On 20 May 2013, Centrelink wrote to Ms Lee advising her that their records showed that Ms Lee’s course of study was ending soon (on 14 June 2013) and requesting that she advise Centrelink within 28 days if that date had changed and what she intended to do in the “next available study period” (i.e. Semester) (20 May 2013 Letter). The back of the 20 May 2013 Letter stated:
Changes in Your Circumstances
You must tell us within 14 days about any event or change in circumstances that happen or when you become aware that are likely to happen. If you don’t tell us your payment may be affected.
· On 6 June 2013, Ms Lee sent a Centrelink “Mod ST Study Details” form to Centrelink (Mod ST Study Form). At question 10 of the Mod ST Study Form, Ms Lee indicated that her Bachelor of Sports Science degree required her to attend 20 hours per week of “formal course work or lectures”. At question 11 of the Mod ST Study Form that she was enrolled in the course “full-time”. However, at question 13 of the Mod ST Study Form Ms Lee indicated that she was “unsure” if her course was “full-time” or “part-time”; and
· On 22 June 2013, Centrelink wrote to Ms Lee confirming that she would be paid Austudy from June 2013 onwards on the basis that she was studying a “Tertiary Group B Course” at Murdoch University “full-time”. The letter also stated that: “If your study load changes or if you cease to study you should let [Centrelink] know within 14 days” (22 June 2013 Letter).
The 22 June 2013 Letter also stated:
The amount of Austudy you receive may need to be changed if there are changes in your circumstances. If you are paid too much Austudy because you don’t tell us when you are required to do so, we may ask you to pay it back.
Section 68 of the Social Security (Administration) Act 1999 (Administration Act) provides that the Secretary may give to a person to whom a social security payment is being paid a “notice” requiring the person to provide various information relating to changes in their circumstances and/or information that may affect their social security payment. The 20 May 2013 Letter and the 22 June 2013 Letter clearly constitute “notices” for the purposes of s 68 of the Administration Act.
The overpayment of Austudy to Ms Lee was made as a result of Ms Lee providing incorrect information to Centrelink about her enrolment details in the Mod ST Study Form. By her own admission, Ms Lee was unclear whether she was studying full-time or part-time in the Relevant Period. Ms Lee stated:
I did not knowingly make a false statement or give a false representation of my study load. My understanding was that study load was based on hours, not a point system. As I was completing 25 hours of sports practicum (volunteer work/work experience) a week, my understanding was this satisfied the requirements for a full time student.
According to Ms Lee, she did not respond to the 22 June 2013 Letter to advise Centrelink that she was not studying “full-time” in the Relevant Period (as she indicated at question 11 of the Mod ST Study Form) because, at the time, she believed that because she was completing 25 hours of sports practicum a week she was, indeed, a “full-time” student. This belief was based on her understanding at the time that whether a student was full-time was determined according to the number of weekly contact hours of the student and not on the number of credit points to be completed by the student each Semester. In other words, Ms Lee did not think there were any “changes” to advise Centrelink of at that time. In the Tribunal’s opinion, Ms Lee’s confusion on this issue is understandable given that the Mod ST Study Form specifically asks (at question 10) “How many hours per week do you attend formal course work or lectures?” Perhaps Ms Lee’s response would have been quite different if the Mod ST Study Form instead asked how many credit points she would be completing each Semester in her course.
It is not in dispute that Ms Lee did not knowingly make a false statement or representation to Centrelink regarding her study load in the Relevant Period and that she provided incorrect information to Centrelink (i.e. that she was enrolled in her course “full-time”) inadvertently, based on her false understanding of what Centrelink considered “full-time” in the context of a Bachelor of Sports Science degree at Murdoch University.
Despite this, it remains the case that, in the circumstances, it cannot be said that Ms Lee’s debt is “attributable solely to an administrative error” made by Centrelink for the purposes of s 1237A(1) of the SSA. Consequently, Ms Lee’s debt cannot be waived under s 1237A(1) of the SSA.
Special circumstances
Section 1237AAD of the SSA allows the Secretary to waive the right to recover all or part of a debt due to the Commonwealth if the Secretary is satisfied that:
· the debt did not result wholly or partly from the debtor or another person “knowingly”: (i) making a false statement or representation; or (ii) failing or omitting to comply with a provision of the SSA or the Administration Act;
· there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the debt; and
· it is more appropriate to waive, than to write off, the debt or part of the debt.
To reiterate, it is common ground that Ms Lee did not “knowingly” make a false statement or representation or fail or omit to comply with any of the provisions of the social security legislation. The relevant issue for consideration, therefore, is whether in Ms Lee’s case “special circumstances” exist that make it desirable to waive her debt.
“Special circumstances” is not defined in the Act but it is a phrase which has been extensively considered in case law. Some of the most frequently cited cases include Dranichnikov v Centrelink [2003] FCAFC 133 at [66]; Beadle and Director-General of Social Security (1984) 6 ALD at 3 [2]; Groth and Secretary Department of Social Security (1995) FCA 1708 at [12]; Re Ivovic and Director General of Social Services [1981] AATA 57 at [45]; Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 and Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80]. Broadly, for a finding of “special circumstances” to be made, the circumstances must be such that they take the case out of the ordinary – are unusual, uncommon or exceptional.
Ms Lee told the Tribunal that in the Relevant Period she suffered from poor health, as a result of recurrent chronic right ankle and knee pain (post traumatic) and major depression and that she took analgesics and anti-depressant medication to treat her conditions. Ms Lee provided Centrelink Medical Certificate from Dr Bamidele Babalola (dated 3 August 2014), a report from Dr Uyana Gayani Dayaratna (dated 28 July 2014) and a report from Physiotherapist Mr James Loh (dated 2 August 2014) as evidence of this. Ms Lee said that she continues to suffer from depression and provided a report from Dr Leah Geonzon (dated 6 March 2014) and a GP Mental Health Care Plan between herself and Dr Dayaratna (dated 19 August 2014) to support this.
Ms Lee also she said that she has no capacity to repay the debt as her expenses exceed her income. She said that she currently has no source of income other than her Centrelink (Newstart Allowance) payments and has had to borrow money from friends. Ms Lee stated that as a result of her medical conditions she had very high medical expenses and if she were required to repay the debt she would be put in a position of severe financial hardship. She provided a statement of financial expenses and some invoices to support this.
Whilst Ms Lee’s circumstances are difficult, they are not sufficiently out of the ordinary to be considered “special” for the purposes of s 1237AAD of the SSA. Ms Lee’s challenging personal and financial circumstances are not unusual, uncommon or exceptional for a person in receipt of income support payments from Centrelink. Accordingly, Ms Lee’s debt of $3,645.25 cannot be waived under s 1237AAD of the SSA.
Write-off of Debt
Section 1236(1A) of the SSA provides that the Secretary may, on behalf of the Commonwealth, decide to write-off a debt under s 1236(1) of the SSA for a stated period or otherwise:
…….if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to pay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
It is not in dispute that Ms Lee satisfies s 1236(1A)(a), (c) and (d) of the SSA. That is, it is common ground that: (i) Ms Lee’s debt is not irrevocable at law within the meaning of s 1236(1B) of the SSA; (ii) Ms Lee’s whereabouts are known; and (iii) it is cost effective for the Commonwealth to take action to recover Ms Lee’s debt. However, what is in dispute is whether Ms Lee has “no capacity to pay the debt” for the purposes of s 1236(1A)(b) of the SSA.
It was submitted in the Secretary’s Statement of Facts, Issues and Contentions, dated 15 July 2014, (at [33.2]) that “Ms Lee has capacity to pay the debt through small fortnightly withholdings of $20 from her ongoing social security payments” (i.e. from her ongoing Newstart Allowance). Ms Lee does not agree with this submission. Ms Lee says that she currently has no income other than her Newstart Allowance, she has high medical expenses (due to her ongoing medical conditions) and that she has to continue to borrow money from friends that she now has to repay (i.e. in addition to having to repay her Centrelink debt). At the hearing, the Secretary told the Tribunal that Centrelink’s fortnightly withholdings from Ms Lee’s Newstart Allowance were subsequently reduced from $20 to $15 and, further, that on 14 August 2014 the withholdings were suspended altogether until November 2014, based on its review of Ms Lee’s circumstances. Centrelink intends to review Ms Lee’s circumstances again in November 2014.
Based on the evidence, the Tribunal is not convinced that Ms Lee presently has the capacity to repay her Centrelink debt. This view is reinforced by Centrelink’s recent decision to suspend its fortnightly withholdings from Ms Lee’s Newstart Allowance until November this year, based on its recent review of Ms Lee’s circumstances. Consequently, the Tribunal recommends that the Secretary writes-off Ms Lee’s debt (totalling $3,645.25) until Ms Lee is in a position to repay the debt (for example when she has recovered from her medical conditions and is earning an income through employment).
Entitlement to Newstart Allowance
It is Ms Lee’s contention that if she was not entitled to Austudy payments in the Relevant Period she would have been entitled to Newstart Allowance in the Relevant Period and should, therefore, be “back paid” the relevant amount: see paragraph 10 above. That is, according to Ms Lee, she was “notionally entitled” to Newstart Allowance for the Relevant Period.
The concept of “notional entitlement” is contained in s 1237AAC of the SSA (titled “Waiver where debtor or debtor’s partner would have been entitled to an allowance”), which states:
(1) If:
(a) a debt arises from overpayments made to the debtor; and
(b)the debtor or the debtor’s partner does not claim family payment or family allowance for the period the overpayments were made; and
(c)an amount of family payment or family allowance would have been payable for the period when the overpayments were made if the debtor or the debtor’s partner had lodged a claim;
the Secretary must waive the right to recover the debt to the extent set out in subsection (2).
(1A) If:
(a)A debt arises from overpayments to a youth allowance recipient (the debtor); and
(b)The debtor would have been an FA child of another person for the period when the overpayments were made if the debtor had not been a youth allowance recipient; and
(c)An amount of family allowance would have been payable to the other person in respect of the debtor for the period when the overpayments were made if:
(i)The debtor had been an FA child of the other person for that period; and
(ii) The other person had lodged a claim;
The Secretary must waive the debt to the extent set out in subsection (2A). [Emphasis added]
It is clear from the words used in s 1237AAC of the SSA that the section is intended to apply specifically to family payment or family allowance and youth allowance but not to Austudy and Newstart Allowance. This application concerns Ms Lee’s entitlement to Austudy or Newstart Allowance in the Relevant Period. Consequently, s 1237AAC, and the concept of “notional entitlement” has no relevance to this case. Section 1237AAC of the SSA, which embraces the concept of “notional entitlement”, is to be contrasted with the waiver provisions of s 1237A (Waiver of debt arising from (administrative) error) and s 1237AAD of the SSA (Waiver in special circumstances), which do not contain the concept of “notional entitlement”. As such, the issue of “notional entitlement” is not relevant to this application.
To have qualified for Newstart Allowance in the Relevant Period, Ms Lee would have had to meet the following requirements in s 593 of the SSA:
· be unemployed;
· satisfy the “activity test”( in s 601 of the SSA), if required;
· be prepared to enter into an Employment Pathway Plan (EPP), or, if one already exits, a replacement EPP;
· comply with the terms of an EPP while it is in force;
· be an Australian resident or be exempt from the residence requirement by virtue of s 7(1);
· be at least 22 years of age but under the age pension age; and
· not be receiving youth allowance.
Ms Lee claims to have been unemployed in the Relevant Period.
Ms Lee does not fall into the category of not being satisfied the “activity test” for the purposes of s 593(1)(b)(ii) of the SSA and, therefore, must satisfy the “activity test” in s 601(1) of the SSA.[1] The “activity test” in s 601(1) of the SSA states that, subject to s 601(1A) and s 601(5) of the SSA, a person satisfies the “activity test” in respect of a period if the person satisfies the Secretary that, throughout the period, the person is actively seeking and willing to undertake paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
[1] A person must satisfy the activity test in s 601(1) of the SSA unless the person is taken to satisfy the activity test or is not required to satisfy the activity test by virtue of s 603 of the SSA (training camp exemption), s 603A of the SSA (special circumstances exemption), s 603AA of the SSA (people aged 55 of over and engaged in work), s 603AB of the SSA, s 601(4) of the SSA (i.e. the person is complying with the terms of their Employment Pathway Plan and is in a class of persons specified by the Minister, being a person with “low capacity to work” or who is receiving “stream 4 services”) or s 601 (the Secretary determines that the person should be taken to satisfy the activity test).
According to Ms Lee, she did satisfy the “activity test” in the Relevant Period since she was actively seeking and willing to undertake paid work in Australia in that period. However, this is inconsistent with what is said in the SSAT Decision (at [43]) as follows:
Miss Lee told the Tribunal that she was engaged in “prac” for 25 hours each week, and could not have looked for a job during the period under review. Accordingly the requirements for payment of newstart allowance could not be satisfied as her evidence was not consistent with a conclusion that during the relevant period, she was available and willing to undertake suitable work.
Ms Lee told the Tribunal that at her hearing before the SSAT she provided email confirmation that she applied for jobs in the Relevant Period. However, no such evidence was provided to this Tribunal. When asked by the Tribunal whether she would have had time to work in the Relevant Period (i.e. due to her study commitments and 25 hours of practicum a week), Ms Lee answered “yes”. She said that she had capacity to work in the afternoons or evening in the Relevant Period.
However, based on the lack of documentary evidence supporting Ms Lee’s statement that she applied for jobs in the Relevant Period and the SSAT’s findings (based on Ms Lee’s evidence before it), it is difficult to conclude, on the balance of probabilities, that Ms Lee did actively seek and was able to undertake paid work in the Relevant Period in satisfaction of the “activity test” in s 601(1) of the SSA. Consequently, the Tribunal finds that Ms Lee was not qualified for Newstart Allowance in the Relevant Period under s 593 of the SSA. In any event, since no claim for Newstart Allowance was in fact made by Ms Lee in respect of the Relevant Period, Centrelink was not in a position to assess Ms Lee for such a claim. Such an assessment cannot be made retrospectively.[2]
[2] See Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659 at [29] and Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 739 at [12].
DECISION
For the above reasons, the Tribunal sets aside the SSAT Decision and remits the matter to the Secretary for reconsideration in accordance with the Tribunal’s recommendation in paragraph 43 of these Reasons for Decision.
54. I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh.
…(Sgd) M Sunits.........
Associate
Dated 1 September 2014
Date of hearing 29 August 2014 Representative for the Applicant Self Representative for the Respondent Ms S Y Long Solicitors for the Respondent Australian Government Solicitor
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