Chen and Secretary, Department of Education, Science and Training

[2006] AATA 5

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/934

GENERAL ADMINISTRATIVE DIVISION

Re:            ZHI MIN CHEN

Applicant

And:         SECRETARY,
  DEPARTMENT OF EDUCATION,

SCIENCE AND TRAINING

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:6 January 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY  AUSTUDY – mature age student – applicant to provide academic transcripts for study in years 2000 and 2004 and evidence of earnings – Austudy cancelled for failure to comply with s 68 – defective s 68 notice – SSAT set aside cancellation – decision affirmed.

Social Security (Administration) Act 1991   ss 68, 72

REASONS FOR DECISION

6 January 2006  Regina Perton, Member

1.      Mr Zhi Min Chen is studying for a Diploma of Community Welfare.  On 9 February 2005, Mr Chen applied to Centrelink, which administers payments for the Department of Education, Science and Training, for Austudy.  Mr Chen, who is a mature age student, works as a room attendant at a hotel to support himself.

2.      On 16 February 2005, Centrelink asked Mr Chen to provide academic transcripts for earlier studies in 2000 and 2004 and evidence of his earnings for the period from 16 December 2004 to 9 February 2005.  On 2 March 2005, the claim for Austudy was rejected as the requested material had not been provided by that date.

3.      On 16 March 2005, Mr Chen sought review of the decision to refuse him Austudy.  In his letter seeking review by an authorised review officer (ARO), Mr Chen indicated that he had been unable to provide all of the documents within the 14 days specified in the letter of 16 February 2005.  He provided copies of 3 payslips during the period preceding his claim for Austudy.  Centrelink subsequently received copies of his academic transcripts for earlier studies directly from the educational institution.    

4.      On 5 April 2005, Centrelink advised Mr Chen that he was eligible for Austudy payments from 10 February 2005.  Mr Chen was advised in a separate letter dated 5 April 2005 that he must advise Centrelink of his earnings each fortnight and that if he did not do so, he would not be paid Austudy.  He was asked to provide reports for the period between 10 February 2005 and 4 May 2005.

5.      On 6 April 2005, Centrelink wrote to Mr Chen advising him that his Austudy had been cancelled as he had not reported as requested in the letter of the previous day. 

6.      On 13 April 2005, Mr Chen applied for review by an ARO of the decision to cancel his Austudy.  He pointed out that his Austudy had been cancelled before he received the letter advising him of its grant and the requirement to report his earlier earnings.  He indicated that he had discussed the matter with a Centrelink officer on 13 April 2005 who had refused to fix the claim. 

7.      On 22 June 2005, a Centrelink officer referred Mr Chen’s request for review to an ARO.  On 30 June 2005, the ARO wrote to Mr Chen inviting him to provide any additional material which he believed relevant by 20 July 2005.   Nothing further was provided.  On 20 July 2005, the ARO decided that the decision to cancel Mr Chen’s Austudy was correct.  He pointed out that Mr Chen had not reported on his earnings fortnightly as was required before Austudy payments could be made.

8.      On 22 August 2005, Mr Chen lodged an application for review with the Social Security Appeals Tribunal (SSAT).   On 16 September 2005, the SSAT set aside the decision under review on the basis that Mr Chen’s Austudy was wrongly cancelled.  The SSAT directed that Mr Chen remained entitled to Austudy on 6 April 2005 and that Centrelink reassess his rate from the date of claim.

9.      On 20 October 2005, Mr Chen lodged an application for review with the Tribunal.  A hearing took place on 20 December 2005.  The Tribunal gave oral reasons for its decision but at Mr Chen’s request, provides written reasons and commentary.

Proceedings before the Tribunal

10.     Mr Chen told the Tribunal that the primary reason he applied to this Tribunal for review was because he had only been partly successful before the SSAT.   The wording of the SSAT decision was as follows:

On 16 September 2005 the Tribunal decided to set aside the decision under review and send the matter back to the Chief Executive of Centrelink for reconsideration in accordance with the direction that Mr Chen remained entitled to Austudy payment at 6 April 2005 and that his rate be reassessed from the date of claim. 

This means the appeal was partly successful.

11.     Both the Tribunal and the Centrelink Advocate, Ms Bromley, assured Mr Chen that in their view, the outcome was successful rather than only partly successful.  Mr Chen accepted that assurance and asked that it be documented.

12.     Mr Chen also raised issues which are not within the Tribunal’s jurisdiction.  Mr Chen expressed concern that his Centrelink records are inaccurate.  He told the Tribunal that the Centrelink decision‑maker had breached guidelines in not referring his application for review by an ARO within Centrelink’s stipulated timelines.  Mr Chen’s request for review dated 13 April 2005 (T12) was not referred to an ARO until 22 June 2005.  Mr Chen referred the Tribunal to the following text on the referral form, all of which is printed apart from the date at the end of the quote (T13):

Original Decision Maker

Remember, this case must get to the ARO within 4 days of the customer requesting an ARO review.

…

Date customer requested review by an ARO             22/6/05

13.     Based on the documentary evidence, the date given by the original decision‑maker, the section manager and the ARO as the date of lodgement by Mr Chen of his request for reconsideration is obviously incorrect.  Mr Chen requested that the Tribunal investigate why and how the inaccurate date was given and why Centrelink had not dealt with his request earlier.  Mr Chen also brought to the Tribunal’s attention his letter of 16 March 2005 (T7) which was also a request for review by an ARO.  He pointed out that this had not been referred to an ARO.   The Tribunal does not have jurisdiction to deal with matters of this nature.

14.     Mr Chen also expressed concern about the impact on him of the cancellation of his Low Income Health Care Card.  The Centrelink advocate and the Tribunal

assured him that the reinstatement of his Austudy would also result in his being granted a fresh Health Care Card, provided Centrelink had verification of his income.  Mr Chen stated that the reason he had not provided Centrelink with financial information to date was that he was no longer a Centrelink client due to the cancellation of his benefits.  He therefore was of the view that it was inappropriate for Centrelink to ask for information and for him to provide it if there was no official relationship between them due to the cancellation of Austudy.  He pointed out that he managed to survive on the income from his hotel employment.  He said that he may not claim back payment from the start of his entitlement.  He said his concern was that others might not be able to manage in the way he did and he wished to make sure that others would not end up in a similar plight to him.  The Tribunal and the Centrelink advocate urged him to reconsider and provide backdated information to Centrelink.  Once that information is provided, Mr Chen will be able to receive back payments of his Austudy and have his health care card restored if eligible.

15.     Mr Chen also raised the issue of compensation for defective administration by Centrelink but was advised that this is not within the Tribunal’s jurisdiction. 

16.     Given that Mr Chen was successful before the SSAT, the Tribunal is affirming its decision.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  20 December 2005
Date of decision:  6 January 2005
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms A Bromley, Centrelink