David v High Court
[2009] AATA 448
•18 December 2014
[2014] AATA 970
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/6357
Re
Leslie Deane
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 18 December 2014 Date of written reasons 8 January 2015 Place Adelaide For the reasons given orally at the conclusion of the hearing, the applicant’s application for an extension of time to apply to this Tribunal for a review of the decision of the Social Security Appeals Tribunal made on 23 July 2014, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, is refused.
........................[Sgd]................................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY - disability support pension - evidence obtained by respondent that applicant received excessive income during the relevant period - decision of the Social Security Appeals Tribunal referring matter back to Chief Executive Centrelink for reconsideration in accordance with directions - application for extension of time refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), subsection 29(7)
Social Security Act 1991 (Cth), ss 8(1), 1064, 1223, 1237A
CASES
Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
David and High Court of Australia [2009] AATA 448
Paino and Secretary, Department of Employment and Workplace Relations [2006] AATA 951
REASONS FOR DECISION
Senior Member R W Dunne
8 January 2015
At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, the Tribunal determined to furnish to the applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Merrill Corporation. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The transcript is annexed hereunto and furnished to the respondent and to the applicant as it is the reason for the Tribunal’s decision.
I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ....................[Sgd]....................................................
Administrative Assistant
Dated 8 January 2015
Date(s) of hearing 18 December 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services TRANSCRIPT OF PROCEEDINGS
SENIOR MEMBER: Mr Deane.
MR L. DEANE: How do you do?
SENIOR MEMBER: Good morning.
MR DEANE: Good morning, Senior Member.
SENIOR MEMBER: Mr Visser.
MR C. VISSER: Good morning, Senior Member.
SENIOR MEMBER: Good morning. Now, Mr Deane, you made an application for an extension of time to apply to this tribunal for a review of the decision that the Social Security Appeals Tribunal made on 23 July this year.
MR DEANE: That's correct.
SENIOR MEMBER: That request for an extension of time has been opposed by the respondent. Mr Visser, I wasn't here yesterday and I have looked today at the respondent's opposition and why the respondent opposed. Has Mr Deane seen a copy of that?
MR VISSER: No, he hasn't, Senior Member.
SENIOR MEMBER: No. All right. Now, Mr Deane, Mr Visser has on behalf of the respondent given a fairly detailed outline of why the respondent has opposed your application. I guess really what I need to know is why you say that an extension of time should be granted. I have looked at the forms that you have lodged. You lodged an application for the extension of time on 10 December and in it you said your reasons:
Suspension of Centrelink DSP and subsequent cancellation of DSP without notice. Debt Recovery did not begin to action matter for a year. Disadvantaged by administrative error of Centrelink Glenelg and subsequent obstructive practices.
And then you have got next to that:
See letter attached.
Now, I don't have a copy of that letter. It was certainly not with the application that we have got.
MR DEANE: Okay. I find that a little odd. I had been in contact with Centrelink Glenelg for some time in relation to the SSAT decision. At the time, the senior review officer from Centrelink had made an application on my behalf at his instigation to refer the matter to the Centrelink legal team because there may have been an administrative error. Now, in relation to this, I was awaiting the matter - I had been told by the SSAT that the matter was going to be returned to Centrelink Glenelg so that they could recalculate the debt and also to make more transparent how the debt was calculated. Now, at no stage have I disputed that a sum of money was owed or a debt.
However, during the process, I believe - and I continue to believe - that there was an administrative error at Centrelink Glenelg. I'm currently trying to source missing documents from the SSAT, which is under a Freedom of Information action. I made reasonable requests to Centrelink Glenelg between receiving the final notice from the SSAT, which came out within 10 days, which I thought given the direction of the SSAT that they were going to recalculate, but it may have taken a little longer than that. And when I met with Centrelink Glenelg the persons that I saw indicated that they had had a request to recalculate said debt.
SENIOR MEMBER: This is Glenelg?
MR DEANE: Yes. Under the old legislation, and they hadn't commenced it. A Centrelink member, Brendan Jarrett, indicated to me that there had been an administrative error which prejudiced my case, if you like, my circumstances - it certainly contributed to the circumstances that I found myself in - and told me that he would be in touch within 24 hours to let me know what was happening, and intimated to me that in these circumstances that there would be a favourable outcome for me. 24 hours later he was assaulted at Glenelg and I have been unable to make any contact with him.
SENIOR MEMBER: He was assaulted?
MR DEANE: I subsequently received a letter from Centrelink Debt Recovery increasing the debt by only $87 or something, but that seemed to fly in the face of what I had been told. On subsequent - a subsequent attempt to contact Kim Fitzgerald in Canberra, I believe, in relation to the recommendation by the senior review officer to investigate the administrative error, I was told by Kim Fitzgerald that the details had been outlined - my claim, which I didn't personally make a claim. It was done at the behest of the senior review officer - that my claim for compensation had been rejected and that I would have been notified of this because Centrelink has a protocol of notifying within a period, et cetera.
I then explained that I had not received any documentation from it, and again she cited that if the computer says a letter was sent then a letter has been sent. So during this process, I wrote to Kim and I said, "Look, I still haven't received your letter". She said she would - I should be receiving it - I mean, it had been 11 days from Canberra, which was a little unlikely, and eventually some two or three weeks later she acknowledged that there was a glitch in the system and the letter hadn't been sent, and I was still - she had said that she had sent a second letter and that hadn't been sent.
Finally having received the letter just a day after speaking with her, I had expected that Kim would reply to the letter that I had sent to her, sent to Centrelink Glenelg's manager and sent to Brendan Jarrett. I awaited response to these letters. I then attended Centrelink and said, "Look, I don't know how many days I have but I am counting to a degree on response to these letters to make it part of my application to be heard before the subsequent appearance at the AAT," which was something that was suggested to me, or reiterated to me, by Centrelink Glenelg. And I had been given - I started to feel that the process was being somewhat obstructive because there was no clarity, there was no confirmation of intent to respond to my letter, and I believe that prejudiced me making the application in good time.
SENIOR MEMBER: How do you say that?
MR DEANE: Well, because the process that the SSAT responded to had not been recalculated or reinvestigated by the Centrelink team leader, who was Brendan Jarrett. He acknowledged that to me at the time, and it seemed that that had been a request on the system for quite some time. He spoke with somebody in relation to the matter and said that he would address it forthwith, within 24 hours. So it seems that decisions were made, even though the request of the SSAT wasn't met.
This is what was intimated to me. But I have no way of speaking with Brendan Jarrett because I believe he suffered post-traumatic stress disorder, a condition I sympathise with. I have experienced it myself for a number of years. And that has limited his ability to return to work. The process - I just don't quite understand how decisions can be made without consideration of the very recommendations as requested by the SSAT.
SENIOR MEMBER: This is what the SSAT said when they handed down their decision? You saw their decision, the decision of the SSAT made on
23 July. It was apparently posted to you on 24 July this year.MR DEANE: I believe I have got a copy of the letter at home. I believe it was August.
SENIOR MEMBER: No, your copy of the decision.
MR DEANE: Yes.
SENIOR MEMBER: So you knew that the decision had been made. Did you know that you had 28 days in which you could appeal to this tribunal?
MR DEANE: Well, at that stage, I was beginning a dialogue with Kim Fitzgerald in relation to this matter, because it's the same matter. Whether it's different hands, it's the same matter. And she recommended that - well, because there had been a time delay in her delivery of the letter to me, I was unable to action within the time. The context of the discussion with Kim Fitzgerald was that I should try to locate the letter dated 27 May 2012 which was instruction from Centrelink to desist from contacting my employer. It was handed to me, not sent to me, and it was not supplied to the SSAT.
And I don't understand why during the process leading up to my appeal at the SSAT that there seems to be documents that would support my claim that I had met with the guidelines, the recommendations of all documentation that I had received, which initially at 10 to 14 May 2012 I had attended Centrelink, I had acknowledged the debt, I had offered to repay the debt forthwith, as soon as it could be calculated. I was told by Centrelink - instructed by Centrelink to get all payslips from my employer. I had only received - all payslips were generated electronically.
I had only received seven payslips during my employment, and around about the time within the two weeks that I was to respond to this, I had contacted Centrelink by phone - I believe it's logged on 16 or 17 May - and I had attended Centrelink Glenelg office, where I was told quite verbatim, "Well, you have had two weeks to contact your employer. It's out of your hands. We will look after it. You're not to contact the employer Punto(?)". And that was the last contact I had with Centrelink. I had been told that - - -
SENIOR MEMBER: What was that date?
MR DEANE: I believe it to have been on or around 27 May. I remember the lady who seemed quite aggressive in sort of refuting the circumstances which I had explained, and I have never seen her at that office since. But then between 27 May 2012, I awaited notification from Centrelink about the decision. Now, in the SSAT Tribunal, there's a claim that I was told that if I did not comply with the request of Centrelink - and this is something that has been reiterated in the decision, I believe - that I would be - my benefit would be cancelled. As in, "If you don't, this will happen," and I think it's quoted within the content of the SSAT decision.
Now, I have never encountered a letter from Centrelink where it is put in black and white that this will be the outcome. Usually it said - on all other letters I had received where one is required to comply, it says "may result", but this one particularly said "will result". But I have gone in and asked that my benefit be suspended, in good faith, because I knew I had been overpaid, and while I was at the office, they contacted Centrelink Debt Recovery and arranged for my benefit to be suspended. I was only ever - - -
SENIOR MEMBER: DSP.
MR DEANE: Sorry?
SENIOR MEMBER: DSP. The benefit you're talking about.
MR DEANE: Yes, the DSP.
SENIOR MEMBER: Disability Support Pension.
MR DEANE: Yes. To be suspended, pending a review, so that I would not incur any more debt to the Commonwealth.
SENIOR MEMBER: Yes.
MR DEANE: Because at the time they weren't even going to cancel my benefit until the review had been conducted. They weren't even going to cancel it, because I had stopped work, I had no income, I wasn't working. My dad was very sick. He lost two legs. In shortly, you know, the circumstances around is circulatory illness, which was the reason I had come back from a short holiday in Bali for a friend's wedding, and immediately, as soon as I could, exhausted as I was, I went to Centrelink in good faith and said I had been overpaid. But on the 27th - there's no documentation of this and this is what I'm trying to source, because it wasn't a letter sent. It was a letter handed to me.
SENIOR MEMBER: This is 27 May 2012?
MR DEANE: 2012, yes. It took until sometime I think in May or September - I think September 2013 for the Debt Recovery Team to contact me, sending me letters that seemed to be carbon copies of letters that I had been sent or handed in May 2012, asking me to respond to an employment period in the tax year 2012/2013, during which time I wasn't working. And so I pointed that out and asked them to correct it, and, you know, had I not contacted Centrelink in January 2013 to say, "Look, I have had no information as to what my current status is".
I had never been informed that my payment had been cancelled, not until the date when I went and asked Centrelink in January 2013 in relation to these events. And it just seems rather odd that Centrelink would refuse to respond to a reasonable request by letter in relation to these matters and then stand adamant that because I have failed in my requirements to make an application within a prescribed 28 days. It seems to be one rule for one and one rule for the other.
SENIOR MEMBER: Well, just going back to what I have got. I have heard what you have said. I don't understand a lot of what you said because it - - -
MR DEANE: Sorry?
SENIOR MEMBER: I don't understand a lot of what you have said, because a lot of what you have said relates to a period before the period covered by the decision of the SSAT. 2012, 2013. We're looking at July - the hearing was prior to July 2014 and then at that stage, the SSAT made a decision. Certainly the decision was that the debt amount was to be recalculated on the basis that the reimbursed COGS amounts are not ordinary income. Fair enough. That comes out. Now:
This means that the lump sum payment to be prorated to Mr Deane's payments of salary is $11,000 and the resulting debt is not to be waived.
Now, all that was in the decision. You say in your application you got the decision in August, I think. You say in August 2014, that that's when you received the decision.
MR DEANE: Yes I did say that.
SENIOR MEMBER: And in that, I have read out what you say about reasons for your application for the extension:
See letter attached.
You say:
I don't know why I -
You don't know why we haven't got it.
MR DEANE: Well, I don't know why you haven't got it.
SENIOR MEMBER: Well, you lodged the application, didn't you?
MR DEANE: I did.
SENIOR MEMBER: And it was supposedly with that letter.
MR DEANE: Well, I believe it to be with the letter. Otherwise I wouldn't have stated it.
SENIOR MEMBER: Well, we don't have it. We don't have it, okay? Now, you keep referring to an administrative error. Do you know what the error was? What was the administrative error?
MR DEANE: Well, non-notification of cancellation of my benefit and a clear, shall we say - I would say obfuscation of the very fact that the letter required me to be in contact with Centrelink within two weeks. I clearly was in contact with Centrelink within the two weeks because there's a phone log on the 16th, which is just two days after the 14th, and given that the period 14th to 27th is considered to be the period where I did not respond - - -
SENIOR MEMBER: This is 16 May 2012?
MR DEANE: Sorry?
SENIOR MEMBER: You said 14th, 16th - just tell me what you were talking about.
MR DEANE: 2012. 2012.
SENIOR MEMBER: 2012.
MR DEANE: This is the entire - the entire issue relates to a period between 2011 and 2012.
SENIOR MEMBER: Okay. So you say the administrative error was something that - so as a result of an admin error, how did that stop you from making an application for review of what the SSAT had decided? Or did you think it was right, what the SSAT had decided?
MR DEANE: Well, I was initially surprised that the SSAT decision had been presented within such a short timeframe, given that it wouldn't have allowed time for Centrelink to have done anything. It was over within about seven or eight days. And I had been under the impression that I was going to be receiving a more transparent explanation of the debt, et cetera. That was what I believed I was going to be receiving, because that seemed to be the gist of what was said by the member at the SSAT. Now, because the process - and this also included me dealing with welfare rights, et cetera.
The process was also initiated by Centrelink at their own recommendation to investigate an administrative error, but the grounds for the administrative error had never been investigated because the team leader had never responded to the request by the people who then returned another decision. And I believe the two decisions both would tend to not address the major contention, which is that Centrelink have told me that I would be informed about a review decision, and then I was never ever told that my benefit had been cancelled. Now, Centrelink rely on that protocol which says that if the computer says a letter is sent it has been sent.
But we have Kim Fitzgerald who acknowledges that glitches in the system do occur, and we also have on file the fact that with Centrelink I had reported since at least 2010 that I had not been receiving letters from Centrelink - sorry, 2009/2010. And so I find it peculiar that given - although I was in extreme stress in relation to my father's and my girlfriend's father's illnesses in May 2012, and being a sufferer of PTSD, stress tends to manifest in sort of snowballing effects. However, I find it rather peculiar that my attendance at Centrelink on the 14th, where I was given a two-week timeframe to contact my employer, and within that two weeks I also discovered that my employer was going overseas to Spain.
SENIOR MEMBER: This is 14 May 2012?
MR DEANE: Yes.
SENIOR MEMBER: All right. Just answer me this.
MR DEANE: Yes.
SENIOR MEMBER: First of all, I don't have a copy of this letter you say was attached. I'm not - I have to say I don't understand the nature of the admin error. I don't understand it. That's just me. I then look at the decision of the SSAT, and they have made a certain decision and part of that decision is that the chief executive of Centrelink consider certain things, do certain things. Now, when you got that decision, and I think you said August 2014 you got it, did you know - were you happy with that decision? Did you wish to challenge that decision?
MR DEANE: I had wished to challenge the decision because it did not recognise the missing documents and erroneous decisions which had prejudiced me, at least for the period May 2012 to January 2013, where my only notification in relation to my DSP - I had only recovered a capacity for work for the first time in about eight years and had immersed myself completely in my work. I had been in the workforce again for nine months, or less than nine months. There was a question as to whether - a question for Centrelink to determine as to what my future DSP entitlement would be.
SENIOR MEMBER: Yes.
MR DEANE: It was suspended on advice from Debt Recovery so that it wouldn't prejudice me by increasing my debt, and they decided not to cut me off because that would then put me in hardship. And these were the reasons that I was then asked to supply all pay slips for the period, and I only had sporadic pay slips. So did everyone else that worked there.
SENIOR MEMBER: This was all before 2014 though, wasn't it?
MR DEANE: This is where the error occurred. The administrative error occurred in not notifying me of the cancellation of my benefit, thereby prejudicing me from being able to apply for any other benefit, and I believed that I was merely suspended for a period because I had - I know of a breaching process that used to exist within the Centrelink social security, where if you move or you do something you get cut off for a period. I had been told I was suspended. Eight months later, I hadn't heard anything. Eight months later, I had been under dire circumstances managing the affairs of my mum and my dad in relation to my dad's illness.
SENIOR MEMBER: That was in 2012?
MR DEANE: That was in 2012 to 2013.
SENIOR MEMBER: All right. Look, I don't want to cut you off on that. I just want to focus on - do you understand why we're here today?
MR DEANE: Yes, I do.
SENIOR MEMBER: You have applied for an extension of time - - -
MR DEANE: Yes, I do.
SENIOR MEMBER: Because your application for an extension of time is outside the 28 days.
MR DEANE: I understand that and I'm trying to explain - - -
SENIOR MEMBER: Well, the reason I want to explain is why did you not - you say, (a), wanted to challenge the decision, the SSAT decision. Why didn't you?
MR DEANE: Because I was still within the 28 days when I spoke with Kim Fitzgerald, and Kim Fitzgerald told me that she would forward a letter to me and I waited for that letter. I then waited for a reply. My letter - - -
SENIOR MEMBER: Sorry, Kim Fitzgerald is with Centrelink?
MR DEANE: She's with the Government of Australia. I don't know who employs her. She's a legal representative to whom the senior review officer handballed my case.
SENIOR MEMBER: Senior review officer at - - -
MR DEANE: From Centrelink.
SENIOR MEMBER: The Centrelink. Not SSAT?
MR DEANE: No. This was happening at the same time as I was applying to the SSAT, and I had been told that sometimes the decision of one affects the decision of the other.
SENIOR MEMBER: But, Mr Deane, you didn't apply to the SSAT. You might have wanted to but you didn't within the 28 days.
MR DEANE: Because I was waiting - - -
SENIOR MEMBER: No, look - - -
MR DEANE: No, you can't tell me what I was doing. I waiting for information from Kim Fitzgerald.
SENIOR MEMBER: No. I could tell you that has no effect. You have got rights under the legislation to - - -
MR DEANE: I don't have any rights in this country.
SENIOR MEMBER: Yes, you do.
MR DEANE: No, I don't.
SENIOR MEMBER: You have go the right to apply to the SSAT - to the AAT. You knew that. You said, "I wanted to apply," but you didn't. You thought because you were dealing with someone else, someone else, this person by the name of Fitzgerald, that was all right.
MR DEANE: And Centrelink Glenelg in relation to the very matters and the documentation that I was requesting to make part of my application to this tribunal.
SENIOR MEMBER: Okay. Let's - - -
MR DEANE: So the obstructive process which I did identify and is the content of the letter that you don't have with you, but it's also a letter that has been sent to Centrelink Glenelg and to Kim Fitzgerald, in relation to what I could only perceive to be are obstructive practices by Centrelink which has prejudiced my ability to respond within the time.
SENIOR MEMBER: You see, I don't have the letter.
MR DEANE: Well, would you give me leave to find the letter and deliver it to you?
SENIOR MEMBER: Well, you say:
See attached -
Not attached, all right? Today, what I have got to decide is am I able to grant you an extension of time, because you're outside the days. 28 days, and cases have decided you have got to do it in 28 days unless there are reasons. You have given me your reasons. Now, if I do grant you an extension of time, what do you propose to do? You will to go to this tribunal.
MR DEANE: Yes.
SENIOR MEMBER: And what will you do? It might come on before me or another member.
MR DEANE: I understand.
SENIOR MEMBER: What do you expect from me?
MR DEANE: Okay. Were I to achieve the extension of time that I should have applied for earlier, but I seem to have been somewhat stymied in maybe showing too much grace to the people who have failed to respond to various letters that I have written, what I would hope to do, I currently have an FOI request in - I spoke with Rachel yesterday - in relation to the documents that I would like to see.
SENIOR MEMBER: Who is that request to? Centrelink?
MR DEANE: Centrelink, yes.
SENIOR MEMBER: Yes. And Rachel is at Centrelink?
MR DEANE: Yes. Because the matter of my alleged non-attendance within the two weeks is the crux of the matter, because that's also the date that they claim to have cancelled me. And I know that I attended on that date. I know that I informed Centrelink that the employer was going or was - had already left for Spain, and I would be unable to contact him, notwithstanding the other circumstances that I found myself under.
SENIOR MEMBER: Can I say - - -
MR DEANE: Now, there seems to be a confusion because - - -
SENIOR MEMBER: No. Well, there's no confusion.
MR DEANE: I know there’s not with you. I'm not suggesting that there's any confusion with this tribunal, but there seems to be confusion as to the administrative error that did take place at Glenelg, and there seems to be a rather protracted process of not giving any transparency to that. And during that process, I believe if I can get the documented notes, I can fully explain that at no stage was I told that I was cancelled, because I need the documentation that seems to have been missing from the file with the SSAT, and so that I can - - -
SENIOR MEMBER: Cancel, being - - -
MR DEANE: Sorry.
SENIOR MEMBER: Cancel, being Disability Support Pension cancel?
MR DEANE: Yes.
SENIOR MEMBER: Yes. Sorry, I just want to make sure when you say these things.
MR DEANE: Yes. Because when I attended on the day - because I never received letters by mail from Centrelink. I had them handed to me in the office. So I find it ridiculous that a letter that says that they have said that I was cancelled would fall within the two weeks when I was required to let them know - to supply the timesheets - sorry, the pay slips. Now, I did go to Centrelink with the seven pay slips I had. I was told that wasn't sufficient. I was told not to approach the employer. It's in the body of the letter that I was given, and yet that letter has never been presented. And I have been in a state of flux during this process. Obviously the illness around my dad took priority over anything else, although during that period I was actively looking for work, I was actively caring for my dad, assisting my mum in managing my dad's affairs.
SENIOR MEMBER: All in 2012?
MR DEANE: 2012, yes.
SENIOR MEMBER: Right. You went before the SSAT, didn't you?
MR DEANE: I did.
SENIOR MEMBER: You appeared before the SSAT.
MR DEANE: I did.
SENIOR MEMBER: And you put your argument. The SSAT talks about the issue of whether:
Was Mr Deane overpaid Disability Support Pension?
You say you were. They obviously acknowledge that.
MR DEANE: I agree. I agree.
SENIOR MEMBER: No problem with that. Then they go on to consider:
Is the amount a debt to the Commonwealth?
They say yes, it was a debt.
MR DEANE: Yes.
SENIOR MEMBER: Then it becomes:
Are there grounds to waive the debt?
No, there's not. Then they consider other matters. But obviously the SSAT have determined that there were certain things that were wrong. The debt amount needed to be recalculated on the basis that the reimbursed COGS amounts are not ordinary income. So that comes out.
MR DEANE: Yes.
SENIOR MEMBER: They then talk of:
This means the lump sum payment to be prorated to Mr Deane's payments of salary is $11,000.
Did you agree with that?
MR DEANE: Did I agree with it?
SENIOR MEMBER: That part.
MR DEANE: I agreed that that was the amount in relation to the debt, because I never disputed the debt.
SENIOR MEMBER: No.
MR DEANE: What I did dispute was whether there was an administrative error, and the process partly - I guess that was what Kim Fitzgerald's job was to do, was to determine whether compensation was - - -
SENIOR MEMBER: Compensation by Centrelink?
MR DEANE: Yes, at their behest, not - - -
SENIOR MEMBER: Nothing to do with us. And I have to just tell you that there are cases that come before this tribunal where under the law we can't do anything.
MR DEANE: There is?
SENIOR MEMBER: But there are errors and admin errors, or whatever you like to say, committed by the respondent - a respondent, and in their rights in relation to compensation. It doesn't affect us. It really then becomes a matter between the applicant and the respondent, Centrelink. Now, it may well be that you have got that right.
MR DEANE: Sure, but I said - because they were both happening in tandem, the two events, the compensation decision which was for some reason returned before Centrelink Glenelg had done what was required of them - I assume it was required of them by somebody within Centrelink - then the decision ought to be seen as wrong. But as the two things tend to converge, then my ability to respond to one without the other is impossible, as far as I can see it. Now, I do understand - and I have never disputed the debt. I acknowledged it on 10 or 14 May 2012. I was suspended. It would seem that the period of my suspension amounted to the overpayment.
That is what I have identified to the review officer, to the SSAT, to everybody since this process began. I believe that my ability to respond to the 28-day process as listed by the SSAT was at least hindered, if not impeded, by failure of Centrelink Glenelg to respond to reasonable requests for the documentation that had been missing, which I had identified at the SSAT. I said, "Well, I don't believe that to be true because I know of another document and another attendance at Centrelink," and I was basically told, well, if I don't have a copy of it, "That's too bad; it won't be heard before this SSAT". And I don't necessarily agree - I certainly don't agree that if a document has not been supplied that surely must be on the archives at Centrelink, perhaps there's a reason why it wasn't supplied.
SENIOR MEMBER: Supplied to us?
MR DEANE: Supplied - - -
SENIOR MEMBER: To this AAT?
MR DEANE: To me when I initially presented my case before the SSAT, which then led to the decision by the SSAT, at a time when there was also another decision which had apparently already been handed down - although I had never been informed of that either.
SENIOR MEMBER: Who by?
MR DEANE: By - I don't know. Who is Kim Fitzgerald? She is a legal representative somehow deferred to in cases where Centrelink may or may not have made an administrative error.
SENIOR MEMBER: So it was - Kim Fitzgerald wasn't with Centrelink?
MR DEANE: She was the one recommending that I find the document and use that as part of my appeal.
SENIOR MEMBER: She wasn't with Centrelink though, was she?
MR DEANE: Well, she's the senior legal advisor for the - - -
SENIOR MEMBER: For who?
MR DEANE: Well, I imagine it's humanservices.gov.canberra. I don't know.
SENIOR MEMBER: Right. He might have been with Centrelink.
MR DEANE: Sorry?
SENIOR MEMBER: Human Services sometimes refers to and includes Centrelink. Does it, Mr Visser?
MR VISSER: That's right.
SENIOR MEMBER: So that's Centrelink. Human Services.
MR DEANE: As it has been identified to me, the legal team is apart from Centrelink, although they oversee matters relating to Centrelink and in relation in particular to the very possibility that there may have been an administrative error. And something that seems to have been identified by Centrelink employees and seems to be, at least in part, the reason that the senior review officer at Centrelink chipped it over to Kim Fitzgerald's section within the umbrella of humanservices.gov Canberra.
SENIOR MEMBER: I'm sorry to keep cutting you off.
MR DEANE: I know.
SENIOR MEMBER: I'm sorry.
MR DEANE: Part of my - sorry, if I can just say, part of my, I guess, symptoms of PTSD is I tend to snowball and I go around the facts, because at times they get jumbled up.
SENIOR MEMBER: Yes, okay. I understand.
MR DEANE: But the facts and how I reiterate them is like a feature of my condition. So it's not an attempt to just go on and on. It's just a feature of my condition.
SENIOR MEMBER: Okay. No, that's fine. Look, I understand. Have a drink. That's the best thing. Now, the legal team may well be part of Centrelink, or there is another organisation where if a person believes there is an administrative error they can apply to this organisation, and that organisation then will determine whether there's some right or claim for compensation. Mr Visser knows about these. I have dealt with them before, haven't I?
MR VISSER: Yes.
SENIOR MEMBER: I have got to focus today on why didn't you do something at 28 days. You said you didn't because other things were happening.
MR DEANE: And other things in relation to this have impacted on my ability to respond within the time.
SENIOR MEMBER: Within the 28 days.
MR DEANE: Yes, because I was trying to accomplish on the one hand something based on information supplied only after the SSAT decision was returned. I had gone to Centrelink Glenelg to say, "Look, what's happening? I don't fully understand," and at that stage, an acknowledgement of an obligation that hadn't been met was raised that would be clarified within 24 hours, which then at the same time I was speaking with the administrative error branch of Centrelink who, shall we say, did not meet their own guidelines, because I assume that's who Brendan Jarrett was talking to.
SENIOR MEMBER: I have asked this question too. I understand you didn't - you weren't able to make your application within the 28 days because there are other things happening. They may have been related or impacting, whatever.
MR DEANE: Yes.
SENIOR MEMBER: In granting an extension of time, I have got to look at that and say, "Well, is that an excuse? Is that an acceptable excuse?" And the cases have decided these issues isn't acceptable. Then I have got to consider as a next step, well, if I grant you an extension of time, I will look at what the SSAT has decided, and if you go before this tribunal I assume you're going to argue that what they have decided is wrong. Because why would be applying to this tribunal if you don't think it's wrong? Well, if you don't think it's wrong, why come to the tribunal? You have to come to us to do something.
MR DEANE: Yes.
SENIOR MEMBER: And what we would normally do would be say, "Well, the SSAT decision is correct. You can't prove otherwise". If you want to go aside from that and go back to Centrelink or whoever Ms Fitzgerald is and pursue that avenue for compensation, it's certainly open to you to continue to do that, but I have got to decide whether, (a), you're going to be successful if you come before this tribunal. And I'm not sure I understand what you would expect this tribunal to do.
MR DEANE: Well, as it has been suggested that I come here by Centrelink because I don't agree with the decision, I am presenting - - -
SENIOR MEMBER: The decision of the SSAT.
MR DEANE: The decision of the SSAT. And the reasons for me being here is because I believe that the SSAT decision, while it was made in good faith and returned in good faith, is flawed because it wasn't presented with all of the documentation, the documentation which I have since spent considerable time trying to get Centrelink Glenelg to acknowledge it, at a time when Kim Fitzgerald has also been suggesting that I hunt - upturn every rock in my house to find the copy of the document. But Centrelink Glenelg doesn't seem to want to comply with my reasonable request, and I think Mr Visser would be aware that the administrative error decision in relation to compensation is not contestable. Is that correct?
MR VISSER: I think I will just speak when the Senior Member wants me to.
MR DEANE: Yes. Sorry. No, I'm just saying - - -
SENIOR MEMBER: Yes. Well, that would be your submission. If we're looking at that, if there is an application made for some compensation and the body that the application is made to says, "No, you're not going to get it," then do you have any rights in relation to that refusal for compensation? My understanding is no, you don't. Now, there might be certain legal rights you could then follow. You may well be able to follow certain legal steps, but that will involve a cost and time and whatever.
But again, what I have got to consider today is your extension of time application, and I think having got to this stage I had better ask Mr Visser to let you know what he thinks about your application for an extension of time. So he has given me a five or six-page summary of the respondent's case. You haven't seen that but you can now hear what he has to say. He will give you a copy. You can listen to him as he goes through it and - that's a copy?
MR VISSER: Senior Member, maybe I will - I think you have seen these before but I will just provide a copy. What this is - I thought I would just start with this. This is the letter that goes out with the SSAT decision.
SENIOR MEMBER: Yes.
MR VISSER: And maybe I will start by just reading this, and I have redacted it because this is for someone else, but this is exactly the letter that Mr Deane got as well.
SENIOR MEMBER: Yes.
MR VISSER:
Decision and reasons enclosed. Your application for review has been decided and a copy of the written decision and reasons is enclosed. We have also sent a copy of this decision to Centrelink. If you are dissatisfied with the decision, you may, subject to the Administrative Appeals Tribunal Act 1975, make an application to the Administrative Appeals Tribunal (AAT) for review of the decision. An application for review to the AAT must be lodged within 28 days of receipt of the SSAT decision. The AAT has offices in each capital city except Darwin and can be contacted on -
Number given -
…from within Australia or -
Another number -
…if you are calling from overseas. Information is also available at align="left">SENIOR MEMBER: So did you get that letter?
MR DEANE: I did.
SENIOR MEMBER: And you didn't do anything about it?
MR DEANE: I didn't do anything about it at the time because I was also, as I have said, ad nauseam, dealing with a matter that Centrelink referred me to. I didn't write a submission asking for compensation.
SENIOR MEMBER: Yes. Well, can I - - -
MR DEANE: I'm sorry, I - - -
SENIOR MEMBER: You got the letter. That's all. That's the question I had. Mr Visser.
MR VISSER: Now, Mr Deane has been discussing this compensation for detriment caused by defective administration claim, and he has outlined an argument that he didn't put in an appeal to the AAT because he was perhaps waiting on the outcome of that. However, that CDDA - compensation for detriment caused by defective administration - claim was rejected on 25 August 2014. Now, that's within the 28 days of the SSAT decision. I have a doc here - - -
SENIOR MEMBER: Just a minute.
MR VISSER: - - - that sets out that that has happened, and that Mr Deane has been notified of that decision. So there's that aspect. His CDDA claim has been decided. Mr Deane has also said he didn't appeal because he was waiting for the things to happen, the debt to be recalculated, et cetera, and the debt was recalculated, again within the 28-day period. On 27 August 2014, Mr Deane is sent a letter which sets out the implementation of the SSAT decision. So he has been informed of what the implementation of the SSAT decision, he has been informed of the CDDA claim, all in late August, but he does nothing about it to appeal that decision until 10 December, several months later.
Now, in this matter, there is going to be really quite substantial prejudice to the respondent if this appeal is allowed to go on, in that Mr Deane wants to agitate various things that happened in 2012 and even back to 2011, and we're moving into 2014/2015 now. Mr Deane wants to talk about what people said to him back in 2012, or conversations that he had, advice that he was given, letters that went missing back in 2012, allegations of letters going missing, years ago. And with the efflux of time, these matters are going to be almost impossible to prove. There's a significant prejudice to the respondent's case by allowing this extension of time. Mr Deane agrees with the overpayment. The Social Security Appeals Tribunal - if I can just read from their decision at paragraph 19:
In this case, Mr Deane acknowledges that he knew he needed to tell Centrelink he was working but he failed to do so.
And not just working for a few days or a weekend or a week. This is about 10 months of work, virtually full-time. And Mr Deane had been in receipt of social security payments for years beforehand. He knew exactly his reporting obligations, and for 10 months he didn't tell Centrelink of any employment income. So:
He knew he needed to tell Centrelink he was working but he failed to do so. He said this is because of the pressure of his work environment where he could not make lengthy telephone calls.
If I could just interrupt there, Mr Deane gave evidence this morning that he also took a holiday to Bali before informing Centrelink that he was working, so I think this is a bit disingenuous to say that the pressures of his work stopped him informing Centrelink of his income. I will go on:
He said he tried to send his partner into Centrelink to report on his behalf but she was told she could not report for any other person without permission. As Mr Deane knowingly failed to comply with his reporting obligations, waiver for special circumstances is not available to him.
We say that's right, and would only add to that that it's interesting that Mr Deane is talking about his partner and he has never been recorded to have a partner on the Centrelink system. But if I can go on.
SENIOR MEMBER: Just a moment.
MR VISSER: So we say the prospects of success in this case are very poor. We also say - - -
SENIOR MEMBER: But what do you think the success would be?
MR VISSER: Yes.
SENIOR MEMBER: The prospects of success. What success is Mr Deane hoping to achieve before this tribunal?
MR VISSER: Yes. Well, I think what Mr Deane is trying to do is that he agrees that when he ceased work, about 10 months after, in May 2014, he went into a Centrelink office and disclosed that he had been working for the previous 10 months. Then his payment was cancelled. His DSP was cancelled. It was found he was earning too much, he had an ability to work; he was no longer qualified. Mr Deane, I think - I don't want to put words into your mouth. He wants that decision changed so that the cancellation will be somehow changed to a suspension, and then he can just be paid a Disability Support Pension from May 2012 up to wherever, perhaps ongoing. So I think that's what Mr Deane wants. So he wants a large amount of arrears of Disability Support Pension.
MR DEANE: No, that isn't the case.
MR VISSER: All right. Well, Mr Deane says that's not what he wants. So I'm a bit confused. So if that's not the case, I'm a bit confused about what Mr Deane actually wants in this appeal. Various precedent decisions have made it very clear that finality in administrative decision-making is something that the government wants. It's preferable to bring these sort of administrative disputes to a conclusion.
SENIOR MEMBER: When Mr Visser says "precedent decisions", he means decisions of a court that I have got to acknowledge. I have got to accept and apply. It's a precedent. It's not like someone else has made a decision, another member has made a decision that I can or can't - that I don't have to follow. But if a Federal Court makes a decision and they say certain things, I have got to apply that. I have got no choice, okay? That's precedent.
MR DEANE: Mr Visser has the advantage of a long career in legal matters that I don't, but I do understand what the word "precedent" means.
SENIOR MEMBER: All right. Mr Visser, would you like to continue.
MR VISSER: Yes. Well, we rely on some of the precedent cases, the Hunter Valley Developments case, et cetera, that - you know, that sort of set out various things to be considered when considering an extension of time. Firstly, that prima facie that proceedings commenced outside 28 days should not be entered into unless there's good reason to do so. Secondly, any action the applicant has taken for the explanation of the delay. Thirdly, the prejudice to the respondent. Fourthly, the merits of the application. So I think I have dealt with all of those. I would finally though just read from really the beginning of the AAT Act, that the overall tribunal's objectives:
In carrying out its function, the tribunal must pursue the objective of providing a mechanism for review that is fair, just, economical, informal and quick.
SENIOR MEMBER: That's in section 3, I think, it is?
MR VISSER: Section 2A.
SENIOR MEMBER: 2A.
MR VISSER: We say that allowing this appeal to continue would be contrary to those objectives, and for those reasons, we say that this extension of time application shouldn't be permitted.
SENIOR MEMBER: Thank you, Mr Visser. Also understand, Mr Deane, that if an extension of time is granted so you're able to apply or prosecute your application for review, then you go - you don't come before this tribunal straight away. You have got to go through a process first, a conferencing process which went before a conference registrar, and that's usually involving twice - two times before it reaches a member. And the idea there is to narrow the issues that exist and identifying the relevant issues, what is relevant. And I have to say a lot of the stuff that you're dealing with that applied in 2011/2012 won't be relevant in the final decision unless you make it so, and I can't identify at this stage the relevancy of a lot of that material. So do you have anything further you want to say? I have heard what you have said.
MR DEANE: Well, I have heard Mr Visser make assertions about documents and decisions being returned, et cetera, which are clearly fallacious.
SENIOR MEMBER: In what way?
MR DEANE: Well, I mean, to say that I had been informed by Kim Fitzgerald on the 25th, blah, blah, blah - this is particularly the matter where I said I didn't actually receive any notification. She said she would send it forthwith. I didn't receive it for another 23 days, and I think 23 days to come from Canberra to Adelaide, then there must be some sort of administrative error.
SENIOR MEMBER: You got a copy of this letter from the SSAT, you said?
MR DEANE: Yes, I do.
SENIOR MEMBER: You knew that you had 28 days.
MR DEANE: I did, and I - - -
SENIOR MEMBER: Now, the other letter, Mr Visser, what was the date of that other letter from CDDA?
MR VISSER: That was from 25 August.
SENIOR MEMBER: 25 August?
MR DEANE: Which Kim Fitzgerald acknowledges was never sent. So I don't think you can have your cake and eat it too, Mr Visser, if anyone’s trying to.
MR VISSER: Well, the applicant is making this assertion but backing it up with no evidence whatsoever.
SENIOR MEMBER: Who was the letter sent to?
MR VISSER: Yes. So I will read this document.
SENIOR MEMBER: Just tell me who it was sent to.
MR VISSER: It was sent to Mr Leslie Stephen Deane of 12 Almond Grove, Glandore.
SENIOR MEMBER: That's your address?
MR DEANE: That is my address.
SENIOR MEMBER: And everyone knows that is your address?
MR DEANE: Yes.
SENIOR MEMBER: And you say you never - - -
MR DEANE: Look, if I have to subpoena Kim to actually speak to this particular issue, I'm more than happy to do that, because Kim Fitzgerald indicated that she didn't know why I hadn't received the decision, that I should be expecting it within a day or two. I called her back, it still hadn't arrived. She said she would send another letter forthwith. She didn't. She later discovered that there had been a glitch in the system and the original letter hadn't been sent. So just because Centrelink computers and the protocol and Centrelink law says that if the computer says it's sent, it's sent, is already in question.
SENIOR MEMBER: Is that a copy of the letter?
MR VISSER: No, this is a copy of the doc recording that the letter has gone out.
MR DEANE: So this is a copy of the glitch.
SENIOR MEMBER: It's a Centrelink recording.
MR VISSER: It's a Centrelink document.
SENIOR MEMBER: Yes.
MR VISSER: I can read it to the tribunal. It says:
Customer compensation claim rejected. Customer compensation claim rejected and letter sent to customer today with reasons. Contact officer is Kim Fitzgerald on -
A telephone number -
If the customer is not happy with the decision they can contact the Commonwealth Ombudsman on -
And the telephone number.
SENIOR MEMBER: Does that identify who Kim - is it Kim Fitzgerald?
MR VISSER: That would be a legal officer from the customer compensation section, the legal section which goes with customer compensation.
SENIOR MEMBER: Okay. All right.
MR DEANE: This is on the record including my response to Kim to my phone conversation with Kim, which Centrelink Glenelg, the senior manager there had a copy of said letter. Centrelink leader Brendan Jarrett, or Jarrod Brennan, or whatever his name is, who was subsequently assaulted within 24 hours of giving me his assurance that he would be returning a decision in my favour, and Kim Fitzgerald, all have a copy of a letter I sent making requests in relation to these matters and also questioning whether the glitch as per this computer-generated log of a letter dispatched, are simply not going to be proof enough of the letters decision. And I did not receive any information for at least 23 to 26 days after that.
SENIOR MEMBER: All right. Well, look - - -
MR DEANE: And subsequently waited for a not unreasonable response to my own correspondence. I mean, am I - if that's a fact, am I lying?
SENIOR MEMBER: No, I'm not suggesting that. I have got to decide whether today based on what has happened, what the information I have got on my file, the submissions that Mr Visser has put - I have to decide whether I am able to grant or wish to grant an extension of time. Not wish; I guess, able to. I have got to consider - - -
MR DEANE: I understand that.
SENIOR MEMBER: I should tell you that this proceeding today is being recorded.
MR DEANE: I understand that.
SENIOR MEMBER: And there will be a transcript available and I will be getting a copy of the transcript. What I propose to do is to refuse your application for an extension of time.
MR DEANE: Okay.
SENIOR MEMBER: I will be sending you a letter. This is an oral decision. I'm giving it now.
MR DEANE: Sure.
SENIOR MEMBER: I will be sending you a copy of the decision that I have made plus a copy of material that's on the recording.
MR DEANE: Yes.
SENIOR MEMBER: Now, if you think that's wrong, if you think my decision is wrong, then you have rights. You can appeal that decision. I have to tell you, the appeal required is you have got to go to the Federal Court, okay? So that's my decision today. I will be refusing your application and, as an oral decision, I will be letting you have something in writing outlining my decision and attaching a copy of the recording of the proceedings here today, all right?
MR DEANE: Yes. I understand what you have said. I mean, if that's the process, that's the process, though I find that rather onerous. Part of the reason that you made this decision is based on the fact that a letter, which was identified as one of the enclosures in my original application for an extension of time is deemed to have not been present in the application for an extension of time, and - - -
SENIOR MEMBER: It's not - I don't - - -
MR DEANE: Sorry, I'm just going to say this on the transcript.
SENIOR MEMBER: Yes.
MR DEANE: That given that there must surely have been some sort of understanding that an enclosure wasn't present, it would have been at least a courtesy to let me know the alleged enclosure was not present. But that's fine, I understand.
SENIOR MEMBER: Well, you have said this:
See letter attached.
That's in quotes. It's not attached. It wasn't attached to your application for an extension of time and it wasn't referred to and attached to your application for review, and that came later. That came on 10 December. I just don't have it. I understand what you're saying.
MR DEANE: I handed it in here.
SENIOR MEMBER: To this, to the tribunal.
MR DEANE: To the offices. I handed it in to the offices and they took it from me. I can’t speak to that.
SENIOR MEMBER: Well, this is the file and I don't know. I'm sorry, I don't know where it is.
MR DEANE: Yes, I understand. I understand. Perhaps I should have gone to the ombudsman and not wasted this court's time.
SENIOR MEMBER: No. I think you have got to pursue that. Pursue with me. But I have explained why, Mr Visser has explained why the respondent would resist, so I have got nothing further to say.
MR DEANE: No problem.
SENIOR MEMBER: Okay. I adjourn the matter.
MR DEANE: Yes.
SENIOR MEMBER: Thank you for your attendance, Mr Deane. Thank you, Mr Visser, for yours.
MATTER ADJOURNED AT 11.20 am
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