Daniel Shore and Secretary, Department of Education, Employment and Workplace Relations

[2013] AATA 683

[2013] AATA 683

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3011
Re	Daniel Shore
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	16 August 2013
Date of written reasons	24 September 2013
Place	Melbourne

For reasons given orally at the hearing, the Tribunal affirms the decision under review.

[sgd]........................................................................

G. D. Friedman, Senior Member

SOCIAL SECURITY – paid arrears of Newstart allowance – Decision under review Affirmed

Social Security (Administration) Act 1999 s 152(4)

REASONS FOR DECISION

G. D. Friedman, Senior Member

24 September 2013

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. The decision under review that's before me today is a decision by the Social Security Appeals Tribunal dated 21 May 2013 which set aside a decision by a Centrelink authorised review officer on 25 August 2011.  The Social Security Appeals Tribunal substituted a new decision that the date of effect of the authorised review officer's decision is 3 February 2007, and the date of the tribunal's decision was 9 April 2013.  ... No, I will read the re-read the second part of that.  The date of effect of the Social Security Appeals Tribunal's decision is the date of that decision.  Now, isn't that 25 May, Mr - - -

   MR HESTER:   No, 9 April 2013 was the date that Mr Shore requested a review of the decision at the Social Security Appeals Tribunal.

2. SENIOR MEMBER: Right. Okay. I understand. Now, the effect of that decision is that no arrears could be paid to Mr Shore. So the issue before me is whether Mr Shore in fact can be paid in arrears for the period 3 February 2007 to 30 March 2007, and that's for Newstart allowance, notwithstanding the operation of section 152(4) of the Social Security (Administration) Act 1994.  The facts of the matter are not really in dispute, and they are that Centrelink imposed an eight-week non-payment period for Mr Shore's Newstart allowance for the period 3 February 2007 to 30 March 2007 on the basis that his employment ceased because of misconduct as a worker.

3. Mr Shore then contacted Centrelink and asked for a review of the decision.  That was at some stage.  The records indicate that was in 2007 and the records further indicate that on 25 August 2011 the authorised review officer set aside the non-payment period because it was considered that Mr Shore was in fact a contractor rather than an employee.  A letter from the authorised review officer dated 25 August 2011 to Mr Shore stated that:

   As I said to you over the phone today, I have decided the decision should be changed.  The decision to impose the non-payment period will be overturned.  This means your appeal was successful.  As I also said though, there is no record that you requested a review of the decision within 13 weeks of being notified of it in the letter of decision dated 10 April 2007.  As a consequence, any arrears for the non-payment period aren't payable.  I have attached a statement explaining the decision and my reasoning why it's not possible to pay you the eight-week non-payment period.  If you do not agree with this decision you may ask for an independent review by the Social Security Appeals Tribunal.

   Then it goes on:

   If you do not request a review within 13 weeks of receiving this letter and the decision is changed, you might not receive your full entitlement.  There is no time limit for you asking for a review of a decision about money you owe Centrelink.  However, you may have to pay back the money while the decision is being considered.

4. The records indicate that Mr Shore lodged an application on 9 April 2013 with the Social Security Appeals Tribunal and it was on 21 May that the Social Security Appeals Tribunal set aside the decision, as I have already said, and substituted the decision that the date of the authorised review officer's decision is 3 February 2007, but the date of effect of the tribunal's decision is 9 April 2013 pursuant to section 152(4) of the Social Security (Administration) Act 1999. Now, when he lodged his application for review, Mr Shore said - this is to this tribunal:

   The law was not applied correctly on multiple occasions.  I appealed/sought review on multiple occasions but still further mistakes/injustices were made by Centrelink and later by SSAT.  The mistakes by Centrelink have cost me over $2000.

5. And the record of discussion with the authorised review officer on 25 August 2011, the review officer said:

   You said you disagree with the decision because - when we spoke over the phone today I advised you that although I had already decided to overturn the eight-week non-payment period it wasn't possible for Centrelink to pay arrears because there was no record that you requested a review of the decision within 13 weeks of being notified of it in writing (the letter dated 10 April 2007).  You said this was very unfair.  You gave the example of debts where Centrelink "chases you" year after year and there are no 13-week limitation on action.  You said you were never told about the time limits for reviews and said that the Centrelink website advised that there was no time limit for reviews.  You asked if there was any discretionary provision and I said there wasn't.

6. So I'm satisfied that the authorised review officer explained the situation to Mr Shore and I'm also satisfied that the letter that was sent out on 25 August 2011 made clear about the importance of seeking review within 13 weeks of receiving the letter dated 25 August 2011. The application by the SSAT was not received till 9 April 2011 (sic). Now, the relevant legislation is section 154 of the Social Security (Administration) Act 1999 which states:

   A person may apply to the SSAT for review of a decision by -

   And then it goes - (a) is sending or delivering a written application, (b) is going to an officer of the SSAT.  Subsection (2) is first making an oral application and subsection (3) says:

   If a written record of an oral application is made in accordance with subsection (2), division 4 has effect as if the written record were a written application.

   And subsection (4) says:

   An application may include a statement of the reasons for seeking review of the decision.

7. That's section 154. Given my findings that Mr Shore did not lodge an application for review with the Social Security Appeals Tribunal in accordance with section 154 of the Social Security (Administration) Act until 9 April 2013, this statement is more than 19 months after the notice of decision made by the Centrelink authorised review officer. Now we are coming to the critical section of the Administration Act, section 152(4), which states:

   If, (a), a person is given written notice of a decision under the social security law;  and (b), a person applies to the SSAT more than 13 weeks after the notice was given for review of the decision;  and (c), the SSAT varies the decision or sets the decision aside and substitutes a new decision, and (d), the effect of the decision of the SSAT is -

   Then:

   (ii) to direct a making of a payment of a social security payment to the person or the issue of the concession card to the person as may be -

   Or:

   (iii) to increase the rate of a person's social security payment;  the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.

   And section 43(6) of the AAT Act says that:

   A decision of a person as varied by the tribunal or a decision made by the tribunal in substitution for the decision of a person, shall, for all purposes (other than for the purpose of application to the tribunal for review or of appeals in accordance with section 44), to be deemed to be a decision that person and, upon the coming into operation of the decision of the tribunal, unless the tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

8. I find that the directing of making of a payment that follows from a favourable decision to Mr Shore could only have effect from 9 April 2013 in accordance with section 152(4) of the Administration Act, and as the non-payment period of eight weeks imposed on Mr Shore's Newstart allowance from 3 February 2007 to 30 March 2007 has been fully served, the effect of that is that payment cannot be made to him. On that basis and on finding that there is no discretion within that section of the Act, I find that the Social Security Appeals' decision was the correct decision and therefore the correct or preferable decision of this tribunal is the one that was made by the Social Security Appeals Tribunal, and therefore I affirm the decision under review.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of

[sgd]........................................................................

Administrative Assistant

Dated 24 September 2013

Date of hearing	16 August 2013
Advocate for the Respondent	Mr M Hester