Carter and Secretary, Department of Family and Community Services
[2004] AATA 1011
•28 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1011
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/334
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN CARTER Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr IR Way, Member Date28 September 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd]................
IR Way
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements - cancellation of mobility allowance – applicant failed to take reasonable steps to comply with Centrelink notice to provide proof of birth – applicant changed his name at 16 – no record at Births, Deaths and Marriages – decision affirmed
Social Security (Administration) Act 1999 ss 64(1), 64(2), 64(3), 64(4), 80(1)
REASONS FOR DECISION
28 September 2004 Mr IR Way, Member 1. This is an application by John Ashley Carter for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 16 April 2004 which affirmed a decision of Centrelink to cancel Mr Carter’s mobility allowance on 16 September 2003 because he had not complied with a Centrelink notice to provide proof of birth.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T51) and other documentary evidence as follows:
Exhibit A1 Handwritten note produced to applicant under FOI
Exhibit R1Respondent’s Statement of Facts and Contentions and Attachments A to J
Exhibit R2Mobility Allowance Action Sheet
Exhibit R3Extract of Centrelink file for application lodged 28 April 2004
3. The applicant was self-represented and gave oral evidence. Ms H Wallis-Dunne represented the respondent.
Background Facts
4. There is no dispute between the parties about the background facts of this matter and in view of this, and on all of the material before it, the Tribunal makes the following findings of fact:
(a)The applicant claimed mobility allowance on 23 December 2002 (T5) and on 16 January 2003 (T7).
(b)The first of these two claims was rejected on the basis that the applicant was able to use public transport.
(c)The second claim was treated as a request for a review of the decision made in relation to the first claim and the applicant was advised accordingly on 10 February 2003.
(d) On 11 April 2003, the applicant was asked to provide proof of birth.
(e)On 3 May 2003, the applicant was advised that, although he had provided proof of identity, he had not provided proof of birth and his claim could not be granted.
(f)That decision was affirmed by an Authorised Review Officer on 23 May 2003 (T14).
(g)On 18 June 2003, the SSAT set aside that decision and sent the matter back for reconsideration in accordance with the following Directions:
“(1)Centrelink check Mr Carter’s newstart allowance file to determine whether he has already provided proof of date and place of birth in the form of his own birth certificate, or extract from same, at the time of his claim or a later review; and
(2)If this is not on his newstart allowance file, that Centrelink make a request to the Registrar: Births, Deaths and Marriages to verify Mr Carter’s place and date of birth.” (T18/81)
(h)On 18 August 2003, advice was received from the Registrar of Births, Deaths and Marriages that there was no record of the applicant’s birth. Further information which might assist in the search was also requested (T23).
(i)On that same day the applicant was advised that if documents that had been requested were not provided by 16 September 2003, payments would stop (T24). A similar letter was sent on 19 August 2003 (T26).
(j)The applicant was paid mobility allowance from 11 November 2002 to 17 August 2003 on 20 August 2003 (T50/133 and T51/136), from 18 August 2003 to 21 August 2003 on 25 August 2003 (T50/133), from 22 August 2003 to 4 September 2003 on 15 September 2003 (T50/133 and T51/137) and from 5 September 2003 to 15 September 2003 on 18 September 2003 (T50/134).
(k)A file note dated 25 August 2003 records that the applicant advised that he could not supply the information requested by Centrelink in less than 30 days – there is no explanation for this in the record (T27).
(l)On 4 September 2003, the applicant’s mobility allowance was suspended as he had not replied to correspondence sent to him requesting proof of his birth (T30). The applicant was advised accordingly the same day (T31).
(m)A file note dated 8 September 2003 records that the applicant contacted Centrelink about suspension of his mobility allowance and advised that he would not be providing the requested information until 21 September 2003. There is no explanation for information not being available until that date (T32).
(n)Mobility allowance was restored pending resolution of the issue and the applicant was allowed until 21 September 2003 to provide the requested information (T35).
(o)On 16 September 2003, the applicant was advised that his mobility allowance had been cancelled from that day (T36).
(p)On 22 September 2003, Centrelink received a request from the applicant for restoration of his mobility allowance pending review of the decision (T37/111 paragraph F).
(q)On 12 January 2004 the applicant lodged an appeal to the SSAT (T41).
(r)On 12 February 2004, the Original Decision Maker (ODM) affirmed the decision to cancel mobility allowance (T42) and advised the applicant of her decision the same day (T43).
(s)An Authorised Review Officer (ARO) considered the matter and, on 25 February 2004, affirmed the decision to cancel mobility allowance (T44). The ARO advised the applicant of his decision on the same day (T45).
(t) A further appeal to the SSAT was made on 2 March 2004 (T46).
(u)The SSAT on 16 April 2004 affirmed the decision to cancel the applicant’s mobility allowance (T2/3). In making its decision the SSAT cited subsections 64(4) and 80(1) of the Social Security (Administration) Act 1999 (“the Act”). The SSAT has recorded that at the outset of the hearing the applicant advised that his birth was recorded as Ashley John Wall (T2/5 paragraph 6). The SSAT commented that the requested information was within the applicant’s knowledge at all times and that he offered no satisfactory explanation as to why he did not provide it earlier (T2/7-9).
(v)The applicant lodged a new claim for mobility allowance on 28 April 2004 (T49) and was granted it from that date after a birth certificate in the name of Ashley John Wall was obtained.
Issues
5. Centrelink cancelled the applicant’s mobility allowance on 16 September 2003 and granted the allowance again from 28 April 2004, based on a new claim submitted by the applicant on 20 April 2004.
6. In effect, the applicant has not been paid mobility allowance from 16 September 2003 to 27 April 2004, a period of 224 days in the total amount of $1,052.80.
7. The issue before the Tribunal is whether the applicant’s mobility allowance should have been cancelled because he did not provide information to Centrelink as required by Centrelink.
Legislative Framework
8. The Social Security (Administration) Act 1999 relevantly provides as follows:
“64(1) This section applies to a person if:
…
(i) the person has made a claim for mobility allowance; or
(j) the person is receiving mobility allowance.
64(2) If:
(a) this section applies to a person; and
(b) the Secretary is of the opinion that the person should:
(i) attend an office of the Department; or
(ii) contact the Department; or
(iii) attend a particular place for a particular purpose; or
(iv) complete a questionnaire; or
(v) undergo a medical, psychiatric or psychological examination; or
(vi) give information to the Secretary;
the Secretary may give the person written notice that the person is required, within a specified time, to:
(c) attend that office; or
(d) contact the Department; or
(e) attend that place for that purpose; or
(f) complete that questionnaire; or
(g)undergo that examination and provide to the Secretary the report, in the approved form, of the person who conducts the examination; or
(h) give that information to the Secretary;
as the case may be.
64(3) The Secretary may give a person notice for the purposes of subsection (2) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary. This subsection does not prevent the Secretary from giving the person notice in any other way.
64(4) If:
(a) the Secretary gives a person a notice under subsection (2); and
(b)the Secretary is satisfied that it is reasonable for this section to apply to the person; and
(c)the person does not take reasonable steps to comply with the requirement of the notice;
the following paragraphs have effect:
…
(i)if the person is a person referred to in paragraph 1(i), mobility allowance is not payable to the person;
(j)if the person is a person referred to in paragraph (1)(j), mobility allowance ceases to be payable to the person.
64(5)A notice under subsection (2) must inform the person to whom it is given of the effect of this section.
…
80(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.”
Applicant’s Evidence and Submissions
9. Mr Carter told the Tribunal that he first applied for and was granted newstart allowance in 1992 and while he could not recall what information he provided to Centrelink at that time, he thought he must have provided evidence in respect of his birth as part of his claim. It was Mr Carter’s contention that Centrelink must have something on file regarding his birth and that pursuant to the direction of the SSAT on 30 June 2003 that Centrelink check his file, had this been done, the issue of his birth would have been resolved and the matter would not now be before the Tribunal. Mr Carter told the Tribunal that he was unemployed and currently receiving newstart allowance and mobility allowance.
10. Mr Carter explained that in 1992 he was in a de facto relationship which ceased in November 1994 and he no longer had access to documents in his ex-partner’s possession including possibly his original birth certificate.
11. Mr Carter said he was born on 23 March 1944 in the name of Ashley John Wall, his mother being Irene Mavis Wall and his father being Jack Carter. He said his father left when he was 2 years old and he continued with his name of Ashley John Wall until, when he was 16 years old, he commenced work under the name John Ashley Carter, the name he subsequently continued to use, and still uses.
12. He said he had thought his mother had changed his name by Deed Poll but he now knew that she had not done this. He told the Tribunal that both his parents are now deceased.
13. The Tribunal notes that at Exhibit R3 there is a copy of a birth certificate for Ashley John Wall, born on 23 April 1944, and that the Registry of Births, Deaths and Marriages shows no record of a birth certificate for a John Ashley Carter.
14. The Tribunal notes that the SSAT in reviewing Mr Carter’s case on 18 June 2003 record Mr Carter as saying:
“…
§ The original of his birth certificate has been missing since his separation from his wife in 1999. A number of his documents were either destroyed or lost at that time. He has explained all this to Centrelink.
§ On a number of occasions in the past he has provided the original of his birth certificate to Centrelink. If he gets another original now and gives it to Centrelink, they will just photocopy it and give it back to him as they have in the past, so ‘let common sense prevail in the matter’.
§ He said he would have given Centrelink an original of his birth certificate when he applied for newstart allowance in 1992. There has been no break in his payments since that time. The only change was when he was transferred to newstart allowance (incapacitated).
§ He confirmed that his newstart allowance was reviewed a number of times over the years. He remembers being visited at home by Centrelink in 1995 when he was living in Toowoomba. At that time he had to provide proof of identity too.
§ He told the Tribunal that the birth certificate at page 21 of the Centrelink papers is the one he gave Centrelink this time. He considers that to be a ‘joint birth certificate’ for his son and himself, because it clearly states that he was 42 when it was issued in 1994, and that he was born in Brisbane. …”
15. Mr Carter said he lodged his birth certificate (in the name of Ashley John Wall) with Centrelink as part of his application for mobility allowance in April 2004 and that Centrelink had commenced paying his mobility allowance again with effect from 28 April 2004. He said that Centrelink’s action in cancelling his mobility allowance in September 2003 resulted in his not being paid mobility allowance for the intervening 224 days, a total of $1,052.80, and it was his contention that had Centrelink properly checked his records back to 1992 this would not have happened.
16. Mr Carter also referred to the birth certificates for his four children which showed him as the father in the name of John Carter and contended that this was further evidence supporting his claim for there being an official record of his birth in the name of John Carter.
17. Mr Carter also drew the Tribunal’s attention to a document he received in response to an FOI request where the Department file showed his name as Ashley John Wall, date of birth 23 April 1944, born in Brisbane, mother’s name Irene Mavis Wall and father’s name Jack Carter (Exhibit A1). The Tribunal notes that this document forms part of the Department’s file in respect of the applicant’s 2004 claim (Exhibit R3).
18. When asked why he had not told Centrelink about his name at birth, either in face-to-face discussion with a Centrelink Customer Service Officer or in response to requests from Centrelink for such information, Mr Carter said he did not think the name of “Wall” was relevant or necessary, his name of “Carter” having been accepted by Centrelink in 1992 and that, in accordance with the SSAT direction in June 2003, it was for Centrelink to do the appropriate checks and it was “not my part to do this”. He said it was not until he made his last claim in 2004 that he found out that his name of “Wall” had not been changed by Deed Poll by his mother.
19. The Tribunal notes the letter sent to Mr Carter on 19 August 2003 requesting information about proof of birth (T26/96); that the applicant had been told by Centrelink that if the information was not received within 14 days his mobility allowance would be suspended and that the applicant advised Centrelink he was unable to supply the information (T27/97); that the applicant said on 27 August 2003 he would provide the information by 21 September 2003 (T28/98) and that the applicant did not provide the information as he said he would.
20. Mr Carter submitted that the respondent was trying to “dodge” the fact that the SSAT directions in 2002 had not been carried out and if they had, his early records would show his proof of birth.
Respondent’s Submissions
21. Ms Wallis-Dunne submitted that the applicant was asked on several occasions to supply information about his identity and despite the required information being within his knowledge, he did not provide the requested information. She submitted:
“26. Subsection 64(2) of the Act states that if the Secretary is of the opinion that a person should give information to the Secretary, the Secretary may give written notice to that person to give that information within a specified time.
27. On 18.8.2003 and 19.8.2003, the Applicant was asked to supply the necessary information within a specified time and he was advised that if he did not do so, his MOB would be stopped (T24 & T26).
28. Subsection 64(4) of the Act states that if a person does not take reasonable steps to comply with a notice given under subsection 64(2), MOB ceases to be payable to the person.”
22. Ms Wallis-Dunne submitted that it was quite clear to the applicant at the relevant time what was going to happen to his mobility allowance unless he provided further information and that had the information requested by Centrelink been provided then the matter would have been resolved, as indeed it was when the applicant did provide the required information.
23. It was also submitted that the birth certificate of the applicant’s children did not provide proof of the birth of John Carter and that the applicant’s contention that the entry “John Carter” on the children’s birth certificates could not have been made based on perusal of a birth certificate in that name, there being no such certificate.
24. In essence, it was the respondent’s submission that the information requested by the Department was within the knowledge of the applicant, it was reasonable to expect him to provide this information and he did not provide the information. It was therefore submitted that the decision under review should be affirmed.
Consideration
25. The Tribunal is satisfied that the applicant in this matter was born on 23 March 1944 in the name of Ashley John Wall and that at the relevant time, and subsequently, he was known as John Ashley Carter.
26. The Tribunal is satisfied that there is no birth certificate for a John Ashley Carter; that there is a birth certificate for Ashley John Wall; and that, at the relevant time, the applicant’s change in name from “Wall” to “Carter” had not been effected by Deed Poll.
27. After careful consideration of all the material before it and in light of the above findings, the Tribunal is satisfied that Centrelink did not have access to proof of birth by way of a birth certificate at the time John Carter’s newstart allowance was granted in 1992. It is not clear on the evidence before the Tribunal whether Centrelink examined the applicant’s claim in 1992 as part of its response to the SSAT direction in 2003 to review his files. However, given the circumstances as set out above, the Tribunal is satisfied that such an examination would not have thrown any light on the proof of the applicant’s birth.
28. The Tribunal is of the view that Centrelink took appropriate action in respect of the SSAT direction of 18 June 2003, in that Centrelink did check with the Registry of Births, Deaths and Marriages whether there was a birth certificate for J A Carter and, in the absence of such a certificate, did request Mr Carter to provide information relevant to establishing proof of his birth.
29. Mr Carter did not dispute receipt of Centrelink’s notice to this effect and the Tribunal is satisfied that the SSAT correctly found that, pursuant to subsection 64(4) of the Act, the applicant did not take reasonable steps to comply with this notice.
30. The Tribunal does not accept the applicant’s submission that it was not his responsibility to provide relevant information and that Centrelink had within its files the necessary information to establish his proof of birth. It is difficult to see how Centrelink could have obtained a birth certificate for Ashley John Wall (a crucial document in determining the applicant’s claim), without the applicant providing the information that was within his knowledge at all times about his name at the time of his birth (and for the first 16 years of his life).
31. The Tribunal rejects the applicant’s submission that the birth certificates of his children are proof of the birth of John Carter. The Tribunal is satisfied that the respondent is correct in contending that the entry of John Carter on the relevant birth certificates could not have been made based on a birth certificate in the name of John Carter.
32. In summary, the Tribunal is satisfied that Centrelink was correct in requiring the applicant, by way of written notice to the applicant, to get information about his name at birth and parent’s names and that failure to do so within a specified time would result in cancellation of his mobility allowance. The Tribunal is also satisfied that the applicant did not take reasonable steps to comply with Centrelink’s notice and that he had within in knowledge at all times the information that was being requested.
33. The Tribunal is therefore satisfied that, pursuant to sections 64 and 80 of the Act, the applicant’s mobility allowance was correctly cancelled from 16 September 2003 to 27 April 2004.
34. The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: S Oliver
Associate
Date of Hearing 9 September 2004
Date of Decision 28 September 2004The Applicant appeared in person
For the Respondent Ms H Wallis-Dunne
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