Carroll and Department of Family and Community Services - [2001] AATA 540

DECISION AND REASONS FOR DECISION [2001] AATA 540

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001 / 159

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BRUCE ANDREW CARROLL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. T. C. Brassil, AM, Member

Date15 June 2001
PlaceMelbourne

Decision The Tribunal decides to affirm the decision under review.

.........(Sgd) J. T. C. Brassil............
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – reducing employment prospects by moving to new place of residence without sufficient reason – period of non-payment – decision affirmed
Social Security Act 1991 s. 634

REASONS FOR DECISION

15 June 2001 Mr J. T. C. Brassil, AM, Member

This is an application for review of a decision made by a Centrelink delegate on 26 April 2000 and affirmed by an authorised review officer on 19 May 2000. The decision was that the applicant had moved his place of residence from Newcastle to Byron Bay, a place of lower employment prospects and, consequently, that his newstart allowance should be suspended for a period of 26 weeks. The Social Security Appeals Tribunal ("the SSAT") meeting in Brisbane on 24 July 2000 affirmed the decision.
The applicant was present at the hearing on 28 May 2001. The respondent was represented by departmental advocate Mr Terry Baker.
Documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence together with a Timeline prepared by Mr Baker from departmental records.
Facts
The applicant, Bruce Carroll, had lived in Melbourne where he had completed a two-year TAFE course in jazz guitar then went to Newcastle in New South Wales in order to practise and possibly find work.
Having been granted a newstart allowance there he lodged a medical certificate with the Newcastle CSC on 15 March 2000 which stated he was not fit for work for 3 months, from 7 March to 6 June.
He stated that an officer at the Newcastle CSC assured him that it was acceptable in the circumstances to move to a place such as Coffs Harbour in northern NSW.
On 28 March 2000 he presented at the Byron Bay Centrelink office where he was issued with a duplicate form covering the period 15 March to 6 June as he had not received the original.
He then lodged on 13 April a Customer Declaration in relation to his move to a new location on which he stated "advised by Newcastle office OK to move to Byron" as his reason.
The move to Byron Bay was not approved (T9) but notification of this decision was sent to his previous Newcastle address.
The departmental record shows at T12 the applicant was informed on 28 April 2000 at his correct address that "We cannot pay you Newstart Allowance until 26 April 2000 because you have reduced your chances of finding work by moving to an area of low employment" and then stated later in the same letter that "You cannot be paid Newstart Allowance until 25 October 2000".
It appears from departmental records that his newstart allowance was cancelled for 26 weeks from 26 April 2000. In evidence the applicant said this was not how it operated.
Legislation
The Social Security Act 1991 ("the Act") provides at section 634 the protocol for recipients of newstart allowance who move to an area of lower employment prospects. The significant subsections are as follows:
"634.(1) Subject to subsections (1B) and (2), if, in the opinion of the Secretary, a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a newstart allowance is not payable to the person for 26 weeks.
…
634.(3) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:
(a)moves to live with a family member who has already established his or her residence in that place of residence; or
(b)moves to live near a family member who has already established residence in the same area; or
(c)satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or a family member; or
(d)satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence)."
It was not proposed that either of subsections (1B) and (2) were applicable to the circumstances of this matter.
Issues before the Tribunal
The threshold issue was whether the applicant should be regarded as having moved, in his particular circumstances, to a place of residence that reduced his employment prospects. The secondary issue was whether he was given advice at the Newcastle CSC that his move would be approved by Centrelink and suspension would not apply.
Evidence
The applicant confirmed that he had moved from Newcastle to Byron Bay after he had received a medical certificate confirming that he could not work for three months, to 6 June 2000.
He was candid in stating he knew of the provisions for suspension of newstart allowance if he moved to a place of lower employment prospects and he accepted that Byron Bay, in his case, would have less prospects for his employment.
He said he had returned from Newcastle to Melbourne to attend his father's 70th birthday celebration. While in Melbourne he rang a 13 number and recorded in his diary that he had spoken to an officer named "Veronica". He stated that he raised with her the possibility of going if he had a medical certificate to relocate in Queensland at places such as Hervey Bay, Southport or Noosa and was told that would be acceptable.
When he returned to Newcastle he went to the local CSC to submit the medical certificate. His evidence was that he raised with the female officer there to whom he spoke the possibility of moving to Byron Bay and was assured this would be accepted by Centrelink. He was not able to recall the name of this officer.
He stated that after his arrival there he went to the Byron Bay office and was required to submit an application for re-location.
The suspension of his payments did not occur until 12 May. He had already commenced a yoga course in Byron Bay and had paid until the end of that month. He found this was beneficial to his medical condition. He stated that rather than lose the fees paid and because he felt better after each session he stayed in Byron Bay until the end of the month.
At the beginning of June he moved to Main Beach, Queensland, with the result that Centrelink resumed his newstart allowance payments.
He stated that his allowance, in effect, was only suspended for four weeks.
Submissions
The applicant submitted that he would never have moved to Byron Bay if he thought that his allowance would be suspended. He had known of the possibility and had made prior enquiries both in Melbourne and in Newcastle. He was entitled to have had relied on the advice given to him by the Centrelink officers.
He submitted that he did not dispute that Byron Bay was, for him, an area of lower employment prospects but he felt that he should not have been disadvantaged because he relied on the advice given to him from Centrelink. He felt that because he was not required to look for work while on the medical certificate that advice could be accepted without penalty.
He said he moved out of Byron Bay as soon as he could, without forfeiting the fees paid for the yoga course, particularly as the course was helping his recovery and his possible employment prospects.
On behalf of the respondent Mr Baker submitted that the Act applied to Mr Carroll and there was no provision for this section to be applied other than in the manner provided in the section, there was no discretion. The applicant had moved to an area which had the effect of reducing his employment prospects and, as none of the provisions of subsection 634(3) applied, the 26 week suspension was mandatory.
Consideration of the issues
The Tribunal is satisfied that the applicant did move to an area which reduced his employment prospects and thus, in the absence of any discretion, the provisions of subsection 634(1) of the Act should be applied.
However the Tribunal has come to the view that this technical breach by the applicant was, on the balance of probabilities, the result of his reliance on advice he believes he received from Centrelink officers in Melbourne and Newcastle. Whether he did receive incorrect advice is a matter for the Secretary rather than this Tribunal.
The Tribunal had the benefit of direct evidence from the applicant who was a very credible witness. His position was that he knew of the policy of Centrelink and he sought advice as to its application when he had a medical certificate stating he was unfit for work for 3 months. It is difficult to accept that he would have moved to Byron Bay knowing that he could lose his payments for 26 weeks. It is more probable that he did rely on the advice he believes he received.
The SSAT affirmed the decision but proposed that Centrelink investigate whether advice was given, and the nature of that advice, to the applicant by a Newcastle CSC officer. The information given to this Tribunal (see Timeline) was that although the file had been sent to Newcastle it had been returned for these proceedings before an investigation had been undertaken.
There is ample evidence of administrative error (see paragraphs 9 and 10 supra) in relation to the applicant. The notice of his breach was sent to his previous address and then the further notice confused the commencing and end dates for the suspension of payments.
This Tribunal has accepted, on the balance of probabilities, that the applicant did receive the advice he claims. But the Tribunal cannot determine this issue. The Secretary, however, can investigate the matter and, if the circumstances support such action, can apply the regulations on Compensation for Detriment Due to Defective Administration.
Conclusion
The Tribunal will affirm the decision under review but in doing so draws the attention of the Secretary to the above consideration and that of the SSAT.
I certify that the thirty-three (33) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. T. C. Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  28 May 2001
Date of Decision  15 June 2001
The Applicant  Self-represented
Solicitor for the Respondent    Mr T. Baker, Centrelink