Castleman and Department of Family and Community Services - [2002] AATA 171

DECISION AND REASONS FOR DECISION [2002] AATA 171

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/667

GGENERAL ADMINISTRATIVE DIVISION     )
           Re      Harvey Castleman
  Applicant
           And    Department of Family and Community Services
  Respondent

DECISION

Tribunal Mr R P Handley

Date15 March 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – requirement to follow procedure – new claim must be lodged for each perjod of unemployment

Social Security Act 1991 ss 635(1), 636, 637(1), 637(2)
Social Security (Administration) Act 1999 ss 11(1), 16, 16(7)

Re Castleman and Secretary, Department of Family and Community Services [2000] AATA 543

REASONS FOR DECISION

15 March 2002 Mr R P Handley

This is an application by Harvey Castleman ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 17 April 2001 to affirm a decision of a delegate of the Minister for Family and Community Services ("the Respondent") to refuse to pay Newstart Allowance to the Applicant from 3 March 2000 on the ground that no valid claim had been made.
At the hearing, the Applicant represented himself and the Respondent was represented by John Kenny of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with a document tendered by the Applicant. Oral evidence was given in person by the Applicant.
BACKGROUND
Mr Castleman was employed by a courier company from 30 September 1999 to 2 March 2000 when the company suspended him over a dispute about payment for the work he had undertaken. At that time, Mr Castleman was awaiting a rehearing of his application to the Tribunal in relation to the payment of Newstart Allowance during four periods between 1 July 1998 and 29 September 1999. This re-hearing took place on 8 March 2000 and a decision was published on 30 June 2000: Re Castleman and Secretary, Department of Family and Community Services [2000] AATA 543.
Mr Castleman did not lodge a new claim for Newstart Allowance in respect of the period from 3 March 2000, contending that he could continue to rely on an application for Newstart Allowance made on 23 December 1997. The Respondent claims that Mr Castleman's solicitor was informed at the Tribunal hearing on 8 March 2000 that Mr Castleman would need to lodge a new claim for Newstart Allowance in respect of the period from 3 March 2000. On 29 March 2000, the Respondent wrote to Mr Castleman care of his solicitor (T11), about a number of matters related to the then current Tribunal proceedings, but also stating that if Mr Castleman were to become unemployed again, he would need to reclaim Newstart Allowance.
On 5 April 2000, the Respondent wrote to Mr Castleman (T17) informing him that his Newstart Allowance had been cancelled from 30 September 1999 because he had returned to work. On 18 April 2000, Centrelink sent a fax to Mr Castleman stating that if he sought payment of Newstart Allowance in respect of the current period, he would need to submit a formal claim. A separate letter of the same date (T21) was sent to Mr Castleman confirming this and enclosing the necessary claim forms. However, Mr Castleman chose not to submit a new claim believing that this would compromise his position with regard to the matters then before the Tribunal.
On 18 April 2000, a delegate of the Respondent decided to refuse payment of Newstart Allowance to Mr Castleman from 3 March 2000 on the ground that Mr Castleman had not made a valid claim. This decision was affirmed by an authorised review officer on 25 January 2001 and by the SSAT on 17 April 2001. On 23 May 2001, Mr Castleman lodged an application for a review by the Tribunal.
APPLICABLE LEGISLATION
Prior to 20 March 2000 the relevant provisions of the Social Security Act 1991 ("the Act") were as follows:
s635 (1)
A person who wants to be granted a Newstart Allowance must make a proper claim for that allowance.
s636
To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
s637 (1)
To be a proper claim, a claim must be lodged:
          (a)       at an office of the Department; or
          (b)       at a place approved for the purpose by the Secretary; or
          (c)       with a person approved for the purpose by the Secretary.
s637 (2)
A place or person approved under subsection (1) must be a place or person in Australia.
From 20 March 2000, the above provisions were replaced by provisions in the Social Security (Administration) Act 1999. Section 11(1) requires that a person who wants to be granted a social security payment must make a claim for payment. Section 16 provides that a person makes a claim for a social security payment by making a written claim for a payment "in accordance with a form approved by the Secretary" delivered to a person or in a manner and place approved by the Secretary. In addition, s 16(7) states "a person may make a claim in a manner approved by the Secretary for the purposes of this subsection".
There is no dispute that Mr Castleman did not make a claim in accordance with these provisions but sought instead to rely on the application for Newstart Allowance lodged on 23 December 1997.
SUBMISSIONS
Applicant
Mr Castleman described the background to his dispute with the Respondent over the payment of Newstart Allowance in relation to the previous proceedings before the Tribunal. Mr Castleman gained employment as a courier on 29 September 1999, but was suspended by his employer over a dispute about payment for work performed. Mr Castleman said he started looking for other work on 3 March 2000 and, at the Tribunal hearing on 8 March 2000, stated that he was seeking continuing payment of Newstart Allowance from 3 March 2000. He noted the Respondent's claim that Mr Kenny had discussions with Mr Castleman's solicitor, Stephen Hodges, during the course of those proceedings, and that Mr Kenny informed Mr Hodges of the need for Mr Castleman to lodge a new claim in respect to the period from 3 March 2000. Mr Castleman said he never received this information from his solicitor.
Mr Castleman referred to a letter to him from Centrelink dated 22 March 2000 (T9) about the Job Network, which he said he took to mean that he was "on Newstart Allowance". Mr Hodges did not provide Mr Castleman with a copy of this letter, and the letter was not amongst his file documents which he later obtained from Mr Hodges. He did not receive the letter sent to him care of his solicitor dated 29 March 2000 (T11), which he did not see until the time of his appeal to the SSAT. Mr Castleman said he had raised his need for continuing Newstart Allowance with Mr Hodges on 30 March 2000. Mr Hodges told him that he would get back to him about this. Mr Hodges, who had acted in relation to the former Tribunal proceedings on a pro bono basis, subsequently made Mr Castleman an offer in relation to payment for his future services. Mr Castleman declined this offer on the basis that he could not afford this.
Mr Castleman received the fax from Centrelink on 18 April 2000 (T19) stating that if he was intending to claim Newstart Allowance then he should submit a formal claim. He acknowledged this fax was confirmed by letter of the same date which enclosed the relevant forms (T21). However, he believed that if he completed and lodged a new claim he would be giving up his entitlement to 6 weeks payment of Newstart Allowance from 3 March 2000.
Mr Castleman said that at the Tribunal hearing on 8 March 2000, the Respondent conceded that Mr Castleman had been qualified for Newstart Allowance during three periods: 1 January 1988 to 4 May 1998, 1 July 1988 to 25 October 1998, and 6 February 1999 to 29 September 1999. After the hearing, Mr Castleman received a fax dated 14 May 2000 (T26) setting out a breakdown of payments made. Mr Castleman said that when he was in Kempsey in June 2000, he went into the Centrelink office there, showed them the fax, and asked if the stated calculations were correct. The Kempsey office were, however, unable to confirm this without further information. Mr Castleman told the Tribunal that he has a psychological block about going to Centrelink offices as a result of his "atrocious" experiences in dealing with Centrelink over the past four. He has been totally honest at all times in providing information to Centrelink. He is genuinely trying to obtain employment and, in doing so, he does what he believes is right. He resents the fact that in the period before the previous Tribunal hearing, Centrelink asked him for further information (T4) which he considers he had already provided.
In cross-examination, Mr Castleman was asked why he did not complete the new claim forms sent to him as enclosures with Centrelink's letter of 18 April 2000 (T21). Mr Castleman said his mental state at the time was such that he was not prepared to do this given his previous dealings with Centrelink, although he now acknowledges that he may have been wrong in not doing so.
Mr Castleman said that after he was suspended by his employer on 2 March 2000, he approached four other courier companies looking for work. He also looked for work in the Daily Telegraph and in the weekend employment section of the Sydney Morning Herald, and submitted applications for jobs he believed suitable. This continued through until about July 2000. From that time until December 2000, he had a series of temporary jobs through an agency called Trinity with whom he was registered: for example, half days here and there in relation to the Olympics and Paralympics, a 5 week placement with the Education Department at Ryde, and a short placement with St. John's Ambulance. He was registered as looking for work with Mission Australia in Punchbowl. Mr Castleman said he obtained a permanent job on 22 January 2001 but this was terminated on 18 June 2001. Thereupon, Mr Castleman lodged a new application for Newstart Allowance, but has never received notification of whether or not his claim was granted and he has not been paid Newstart Allowance in the period since them, even though he is still unemployed.
Respondent
Mr Kenny said his recollection is that, at the Tribunal hearing on 8 March 2000, Mr Castleman left the hearing room at the end of his cross-examination because he was "fairly upset", and that he did not stay for final submissions. Mr Castleman denied this and said that he had stayed for the duration of the hearing, although he said he was not party to any negotiations between Mr Kenny and Mr Hodges during which Mr Kenny claims that he informed Mr Hodges of the need for Mr Castleman to lodge a new claim in respect of the period from 3 March 2000. Mr Kenny said that Mr Hodges was insistent that the foreshadowed Centrelink letter to Mr Castleman which was subsequently dated 29 March 2000 (T11) enclosing forms related to the payment of Newstart Allowance in respect of the post periods in 1998 and 1999, should be delivered to Mr Hodges' address, so that he could deal with this. Mr Kenny said that he therefore assumed that Mr Hodges would be communicating with his client about this. Mr Kenny said it was extraordinary that Mr Hodges did not pass this letter to Mr Castleman which also notified Mr Castleman of the need to lodge a new claim if he became unemployed again and wished to be paid Newstart Allowance. Nevertheless, since Mr Hodges had apparent authority to act on behalf of Mr Castleman, notification of Mr Castleman's need to lodge a new claim for Newstart Allowance should be treated as having been made.
In any event, Mr Kenny said Mr Castleman had clear notice of the need to lodge a new claim for Newstart Allowance by 18 April 2000 but, instead, chose to pursue his view that his claim for Newstart Allowance lodged on 23 December 1997 covered him in respect of the period from 3 March 2000. Mr Kenny submitted that it was not appropriate to deem a new claim for Newstart Allowance to have been made by Mr Castleman, given that Mr Castleman's solicitor was informed of this requirement at the hearing on 8 March 2000, and that this was confirmed in a letter to Mr Castleman personally delivered to his solicitor by Mr Kenny on 29 March 2000.
Mr Kenny offered to assist Mr Castleman in his dealings with Centrelink for the future by arranging for a social worker or other appropriate worker to be present. He said that Centrelink needs to break down the barrier perceived by Mr Castleman, but that assistance from Mr Castleman is needed to achieve this.
With regard to the claim for Newstart Allowance lodged by Mr Castleman in June 2001, Mr Kenny said this claim was rejected on 10 July 2001. The Respondent's computer records show that this claim was rejected because Mr Castleman failed to return a Preparing to Work Agreement and other forms. Mr Kenny said there is no record of whether Mr Castleman was in fact notified of this decision and, therefore, if he was not notified, he may have a right to seek a review and to claim arrears. Mr Kenny said he would followup on this matter but this is not something which can be reviewed in the current proceedings.
Mr Kenny submitted that because Mr Castleman has not made a claim for Newstart Allowance in accordance with the relevant provisions of the legislation, he has no entitlement to payment for the period from 3 March 2000.
APPLICATION OF LAW AND FINDINGS
There is no dispute that Mr Castleman did not lodge a new claim for Newstart Allowance in respect of the period from 3 March 2000. He sought to rely on a previous claim lodged on 23 December 1997. The Tribunal finds that Mr Castleman was aware of the requirement that he lodge a new claim form, at latest on 18 April 2000 when he received a fax from Centrelink (T19) advising him of the need to do so. This advice was confirmed in a letter of the same date (T21) which enclosed the relevant forms. Mr Kenny stated that he also informed Mr Castleman's solicitor, Mr Hodges, of the need for Mr Castleman to lodge a new claim at the end of the previous Tribunal hearing on 8 March 2000, advice which was confirmed in a letter addressed to Mr Castleman care of Mr Hodges, dated 29 March 2000 (T11), which Mr Kenny stated he hand delivered to Mr Hodges.
Mr Castleman stated he never received advice from Mr Hodges with respect to making a new claim and Mr Hodges did not pass him the letter dated 29 March 2000. However, the Tribunal accepts that the Respondent notified Mr Castleman's agent, namely Mr Hodges, of the need for Mr Castleman to lodge a new claim, which was confirmed to Mr Castleman in the fax and letter dated 18 April 2001. In the Tribunal's view, the Respondent took all the appropriate steps to make Mr Castleman aware of the need to lodge a new claim and, at least after 18 April 2000, it is clear that Mr Castleman's failure to lodge a claim was by his own choice. He believed wrongly that lodging a claim at that stage might compromise the terms as to the payment of Newstart Allowance which were the consequence of the Tribunal hearing on 8 March 2000.
While the Tribunal accepts that Mr Castleman has a "psychological block" in dealing with Centrelink as a result of his experiences of recent years, nevertheless, for there to be effective management of the Social Security system, a proper procedure must be followed in order that claimants receive their legal entitlements. There is a clear requirement both in terms of the relevant provisions of the Act in effect at the time that Mr Castleman's unemployment commenced on 3 March 2000, and pursuant to the provisions of the Social Security (Administration) Act 1999 which took effect on 20 March 2000 and which are cited above. The requirement is that a person must lodge a proper claim in writing on a form approved by the Secretary, delivered in accordance with the requirements approved by the Secretary. The Tribunal therefore decides that since Mr Castleman did not lodge a proper claim in accordance with the provision of the law, he is not entitled to payment of Newstart Allowance in respect of the period from 3 March 2000, and the decision under review must be affirmed.
The Tribunal was impressed by Mr Castleman as a "battler" who has been struggling with the Social Security System for a number of years. In the Tribunal's view, this is in part as a result of Mr Castleman wishing to pursue what he sees as the "right" way, which has not necessarily always accorded with Centrelink's view. The Tribunal has no doubt that Mr Castleman has made genuine efforts to try and find work, including in the period after 3 March 2000. He has not, however, complied with the required procedures and has, thereby, been adversely affected. He is currently very frustrated with the system and is clearly having psychological problems in dealing with the requirements of the system. In the Tribunal's view, intervention by an appropriate person is required to facilitate effective communication between Centrelink and Mr Castleman in order to avoid the problems which have arisen in the past between the two parties.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         ..............................
  Associate
Date/s of Hearing  8 February 2002
Date of Decision  15 March 2002
Representative for the Applicant   Self-represented
Representative for the Respondent        Mr John Kenny, Centrelink