CLIFFORD LAWRENCE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2012] AATA 231

[2012] AATA 231

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5176
Re	CLIFFORD LAWRENCE
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	23 April 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Newstart allowance – Cancellation due to applicant’s involvement in the New Enterprise Incentive Scheme (NEIS) – Advice to Centrelink by applicant on 21 July 2011 of intention to re-apply for newstart allowance – Claim for Newstart allowance on 27 July 2011 – Claim deemed to be made with start date of 21 July 2011 –– Decision as varied by Social Security Appeals Tribunal affirmed.  

LEGISLATION

Social Security Act 1991 (Cth) s 593

Social Security (Administration) Act 1999 (Cth) s 11, 13, 16, 41, 42, schedule 2

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 April 2012

APPLICATION

1. Clifford Lawrence received income support payments in the form of newstart allowance under the Social Security Act 1991 (Cth) (the Act). On 27 June 2011, the newstart allowance was cancelled by Centrelink with effect from 23 June 2011. This was because the Department of Education, Employment and Workplace Relations (DEEWR) advised that Mr Lawrence was involved, on a full-time basis, in the business phase of the New Enterprise Incentive Scheme (NEIS) and was, accordingly, to receive payments under the NEIS. However, Mr Lawrence subsequently withdrew from the NEIS and DEEWR was notified of this on 27 July 2011. His NEIS payments were suspended with retrospective effect from 23 June 2011. On 21 July 2011, Mr Lawrence advised DEEWR through Centrelink that he intended to re-claim newstart allowance. He formally did so on 27 July 2011 and a Centrelink delegate determined that newstart allowance be granted to him from that date. On 26 September 2011, that decision was affirmed by an authorised review officer. On 2 November 2011, the Social Security Appeals Tribunal varied the decision by granting newstart allowance with effect from 21 July 2011.

   BACKGROUND

2. The NEIS provided assistance to job seekers who wished to establish a small business.  It did this by providing training, business advice, mentoring and income support for up to 52 weeks. Mr Lawrence participated in the scheme and his Job Services Provider was Mission Australia. As required under the NEIS, Mr Lawrence completed his training and created a business plan which was directed at his providing instruction and assistance to customers in certain computer operating systems. He had limited finances and expended most of these in purchasing equipment necessary for the conduct of his business.  As noted above, Mr Lawrence was to be self-employed on a full-time basis under the NEIS and he accepted that this meant that he was no longer qualified to receive newstart allowance but, instead, would receive the NEIS payment. The first such payment was made to him in the amount of $591.30 on 7 July 2011 with effect from 23 June 2011.  Initially, Mr Lawrence had not been aware that his NEIS payment was retrospective to 23 June 2011.

3. A NEIS requirement was that Mr Lawrence was obliged to obtain business insurance. This was clearly referred to in the NEIS documentation and Mr Lawrence agreed that he was aware of the obligation but not with the time-frame within which such insurance was to be obtained. On 7 July 2011, Mission Australia queried his insurance arrangement. On 15 July 2011, he was advised by Mission Australia that his insurance should have been in effect from 23 June 2011 but that he had a 14 day period from that date to do so. Mr Lawrence obtained quotations for insurance but his insurance arrangements were not completed by 15 July 2011 when Mission Australia advised that his NEIS agreement was suspended but that he was granted an extension of time to complete his insurance arrangements. As noted above, Mr Lawrence contacted Centrelink on 21 July 2011 about his payments and, on 27 July 2011, he advised Mission Australia the he was cancelling his NEIS agreement. On the same date, Mission Australia advised DEEWR that Mr Lawrence’s agreement was cancelled. Mr Lawrence was required to repay the NEIS payment of $591.30 previously made to him.

   LEGISLATION AND ISSUE FOR DETERMINATION

4. The qualification criteria for newstart allowance are set out in the Act and this includes the recipient being unemployed.[1] It is not in dispute that, from the start of his participation in the NEIS, Mr Lawrence was self-employed on a full-time basis and did not qualify for newstart allowance. 

   [1] See s 593 of the Act.

5. In order for newstart allowance to be payable to Mr Lawrence in a particular period, a requirement under the Social Security (Administration) Act 1999 (Cth) (the Administration Act) is that a claim be made.[2] A social security payment is payable from the person’s start day which, in the general case, is the day the person made a claim.[3] It is `not in dispute that the date of Mr Lawrence’s claim for newstart allowance was 27 July 2011. However, an earlier start date may be allocated in the circumstances set out in s 13 of the Administration Act, which reads:

   [2] See ss 11 and 16 of the Administration Act.

   [3] See ss 41, 42 and clause 3 of schedule 2 of the Administration Act.

   13 Deemed claim—person contacting Department about a claim for a social security payment

   (1) For the purposes of the social security law, if:

   (a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

   (b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and

   (c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

   (d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;

   the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

6. The issue for the Tribunal is whether the re-grant of newstart allowance should be paid from a date earlier than 21 July 2011. 

   SUBMISSIONS

7. Donna Smith, for the respondent, submitted that Centrelink’s cancellation of newstart allowance from 23 June 2011 was appropriate because he was, from that date, self-employed under the NEIS. Ms Smith conceded that Mr Lawrence’s contact on 21 July 2011 and his subsequent formal claim brought him within the operation of s 13 of the Administration Act and that the earliest start date for his newstart allowance was, accordingly, 21 July 2011.

8. Mr Lawrence contended that his newstart allowance should be paid to him with effect from the date on which it was cancelled. This was 23 June 2011. He submitted that he had been disadvantaged because, with the request that he repay his NEIS payment, he had received no income support at all from 23 June 2011. Also, he believed that steps that he had taken to commence his business were similar to the kinds of matters he had undertaken to satisfy the activity test for the newstart allowance. He conceded that this was for a different purpose, namely, to find customers for his new business rather than trying to find employment. He submitted that the legislation relevant to his matter should be amended to allow for a “safety net” for people in his position who engaged in the NEIS with the best of intentions but were discontinued for reasons of lack of finance and inappropriate mentoring by the allocated provider.   

   CONSIDERATION

9. Mr Lawrence did not re-claim newstart allowance until 27 July 2011 but he advised Centrelink of his intention to do so on 21 July 2011. I am satisfied that he met all of the requirements of s 13 of the Administration Act on that earlier date. I am also satisfied that the start date for payment of his newstart allowance was 21 July 2011.

10. I have noted the various matters raised by Mr Lawrence. However, I am satisfied that the legislation, which must be applied as it stands, does not enable a discretion to be exercised to reinstate his newstart allowance from a date earlier than 21 July 2011. There is no provision in the Administration Act for the payment to be payable from any earlier date.

    DECISION

11. The Tribunal affirms the decision under review.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 23 April 2012

Date(s) of hearing	18 April 2012
Applicant	In person
Advocate for the Respondent	Donna Smith