Dos Santos and Secretary, Department of Family and Community Serv Ices
[2003] AATA 432
•13 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/456
GENERAL APPEALS DIVISION ) Re LUIS DOS SANTOS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr M Allen Date13 May 2003
PlacePerth
Decision The Tribunal affirms the decision under review.
.....…....(sgd M Allen).............
Member
CATCHWORDS
Social Security – Newstart Allowance – whether failure to provide information requested – whether delegate could be satisfied that applicant eligible to receive Newstart Allowance
Social Security Act 1991 ss 598, 1068 module G
Social Security Administration Act 1999 ss 36, 37, 63
Re Freeman and Secretary, Department of Social Security 15 ALD 671
Re MacDonald and Director General of Social Security (1984) 6 ALD 6
Glazebrook and Secretary, Department of Social Security (1996) 41 ALD 478
REASONS FOR DECISION
May 2003 Mr M Allen 1. This is an application by Mr Luis Dos Santos for a review of the decision of the Social Security Appeals Tribunal (SSAT) made on 11 November 2002 by which the SSAT affirmed the decision of a delegate of the Secretary made on 24 September 2002 (subsequently affirmed on internal review) to reject an application for Newstart Allowance (NSA) made by Mr Dos Santos on 17 September 2002.
2. At the hearing Mr Dos Santos represented himself and the Secretary was represented by Mr Ellis from Centrelink’s Advocacy and Administrative Law Team.
3. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and three documents tendered by Mr Dos Santos (A1 – A3). Mr Dos Santos gave oral evidence at the hearing.
Background And Evidence
4. Most of the facts concerning the matter are not in dispute and the following findings of fact can be made based on the documents and the oral evidence given.
5. Mr Dos Santos had been intermittently in and out of work for the last four or five years and had applied for and received social security benefits in several of the periods when he was not working.
6. In September 2002 Mr Dos Santos approached Centrelink again because he had not been working for several weeks and an appointment was fixed for him to see a delegate of the Secretary on 17 September 2002. On that day Mr Dos Santos made an application for NSA and completed a Preparing for Work Agreement (T6), a Claim for Job Network Assistance (T7), and a Customer Declaration form (T8). He also provided details of his Medicare and Credit Union accounts, the latter showing a balance of $13.69 (T9).
7. At the interview the delegate considered that information was needed from Mr Dos Santos about how he had supported himself in the previous three month period when he had not been working and for that purpose asked for access to bank statements to obtain information about his bank accounts.
8. At that interview Mr Dos Santos wrote out and signed a statement (T11) to the effect that he refused to provide Centrelink with any information regarding the time before he made a claim for a benefit. The statement acknowledges that Mr Dos Santos understood that his claim for NSA could not be assessed without the information and that it would be rejected. He sought review of the rejection (in advance of the decision to reject) because he considered the information sought had nothing to do with his claim and that it was his private business.
9. In the event, the delegate rejected Mr Dos Santos’ application on 24 September 2002 in the absence of the information sought. The delegate appears to have considered that the request for information had been made pursuant to s 67(2) and s 67(3) of the Social Security Administration Act 1999 (the Administration Act).
10. When the matter was considered by the Authorised Review Officer (ARO), s67 was considered not applicable but the ARO thought that s63 of the Administration Act was applicable. At the time that the matter was considered by the ARO there was uncertainty whether Mr Dos Santos had been given a written notice requesting the information at the interview on 17 September 2002. The delegate stated that a written request had been made using form SS241 (T10, p. 26) but Mr Dos Santos told the ARO (T17) that he had not been given a written request. The ARO could not therefore be certain whether a written request had been given but considered that oral notification of a request for information was sufficient and that it was clear from T11 that at least an oral request had been made. The ARO therefore affirmed the decision but, according to document T18, on 9 October 2002 a further written request for information was posted to Mr Dos Santos seeking the same information by 23 October 2002. The ARO considered that if Mr Dos Santos provided the information sought by that date then it would be reasonable for Centrelink to apply the provisions of s 63(9) of the Administration Act - which would enable the NSA to be paid to Mr Dos Santos from the date of his original application.
11. When the matter came before the SSAT again Mr Dos Santos said that he had not received a written request for information on 17 September 2002 and consequently the SSAT was unsure whether a written request had been made. Nevertheless they concluded that an oral notification was sufficient for the purposes of s 63 of the Administration Act.
12. At the hearing before me Mr Dos Santos tendered document A3, which is a form SS241 requiring information from Mr Dos Santos to be provided by 24 September 2002. It appears to be initialled by the same person who initialled other documents created on 17 September 2002 (see T9). Mr Dos Santos conceded that document A3 must have been received by him at the 17 September 2002 interview – but he maintained that he did not receive the second request document that the ARO had apparently sent on 9 October 2002.
13. The SSAT concluded that:
· Mr Dos Santos had been required to provide information under s 63(3) of the Administration Act on 17 September 2002 even though it was unable to determine that a written notice had been given on that day.
· Because Mr Dos Santos acknowledged to the SSAT that he had been specifically asked for bank statements, the SSAT considered that it could rely on s63(8) of the Administration Act to conclude that a requirement could be made in a way other than in writing.
· Notice had been given properly to Mr Dos Santos and because he had not complied with it s63(5) of the Administration Act operated to make the NSA not payable to him. Accordingly, it affirmed the decision to reject the application.
Issue To Be Determined
14. The question I must determine is whether, on the information now available to me, the decision made on 24 September 2002 to reject Mr Dos Santos’ NSA application was the correct or preferable decision. In so doing I can consider any entitlement Mr Dos Santos had up to the time of my decision: see Freeman v Secretary, Department of Social Security 15 ALD 671 at 674 per Davies J.
Submissions
15. Mr Dos Santos submitted, essentially, that Centrelink already knew a great deal about his circumstances at the time of his application because of his past dealings with it; that he provided all that he usually provided and that the forms appeared to require; and that he did not see how information regarding his bank statements for the previous 3 months would be relevant to any assessment of his benefit. Most importantly, he believed that Centrelink had no right to seek information of this kind relating to any period prior to his claim for a benefit and that such a request was an infringement on his privacy.
16. Mr Ellis submitted that:
· Information regarding prior financial transactions is relevant in considering an NSA application. For example, it will be relevant to any consideration of whether a liquid asset waiting period (under s 598 of the Social Security Act 1991 (the Act)) should apply and if so for how long; and any other regular or intermittent income that might be disclosed would need to be taken into account when making the fortnightly calculations about how much benefit an applicant is entitled to receive (under module G of s 1068 of the Act).
· If the Secretary cannot determine with certainty the correct rate of payment of a benefit then the Secretary is entitled to decide that the payment rate is nil. In such circumstances the Secretary cannot conclude that he is satisfied that a benefit is payable as required by s 37(1) of the Administration Act.
· The Secretary does not have to activate the formal information gathering powers of the Administration Act to obtain information that is within an applicant’s power to provide and where the applicant refuses to provide that information. An applicant has at least a prima facia obligation to satisfy the Secretary that there is a reasonable possibility of entitlement to a benefit.
· In Mr Dos Santos’ case the Secretary (or the delegate) could not properly determine the claim and therefore the claim was properly refused.
Consideration
17. Section 36(1) of the Administration Act imposes on the Secretary a duty to determine a claim for a social security payment – by either granting or rejecting the claim.
18. Section 37(1) provides a general rule that the Secretary must grant the claim if the Secretary is satisfied that the claimant is both qualified for the payment and that the payment is payable. Section 37(2) deals specifically with NSA claims. The Secretary must grant a claim for an NSA if the Secretary is satisfied that the claimant is both qualified for the payment and that the NSA would be payable apart from the application of five specified periods of time. It is to be noted that s 37(1) and s 37(2) require two elements to be satisfied: firstly, that the claimant is qualified for the payment (ie. satisfies various basic eligibility rules) and, secondly, that the payment claimed is payable (which involves considerations such as what will be the rate of payment and when payments should start). Mr Ellis has conceded that Mr Dos Santos was qualified for NSA but the question was whether any payments were payable to him. It follows from s 37(2) that the delegate was required to make decisions about whether the payments of NSA to Mr Dos Santos were payable at all and whether any of the five specified or other factors in s 37 were applicable and would affect the rate of payment or the date of its commencement. No doubt it was for that purpose that the delegate sought information from Mr Dos Santos on 17 September 2002.
19. Much attention was paid by both the ARO and the SSAT to whether a valid request had been made by the delegate to Mr Dos Santos for information under s 63 or s 67 of the Administration Act. The conclusion was that a request had been made on 17 September 2002 and that, although it was made orally, it was a valid request. I note that Mr Ellis at the hearing did not rely on or make submissions concerning the validity of the request for information.
20. It is clear on the evidence and I find that:
· The delegate on 17 September 2002 did ask Mr Dos Santos orally for certain information concerning his bank statements and explained why the information was needed.
· Mr Dos Santos refused to provide the information, despite knowing that it was needed for an assessment of his claim and that a failure to provide the information would result in rejection of the claim (T11).
· It is also clear from A3 that the uncertainty experienced by the ARO and the SSAT about whether the delegate had made the request in writing can now be resolved – and I find that it was made in writing and given to Mr Dos Santos on 17 September 2002. It follows that Mr Dos Santos’ statements to the ARO and the SSAT that he had not been given such a written request were incorrect.
21. It appears that the delegate regarded s 67 as the applicable source of authority for the request but the ARO and the SSAT treated the matter as a request under s 63(3).
22. So far as is relevant to Mr Dos Santos, s 63 of the Administration Act provides (in summary) that:
· The section applies to a person who has made a claim for a social security payment: (s 63(1)(a)(i)).
· If the Secretary is of the opinion that a person who has made a claim for NSA should give information to the Secretary then the Secretary can notify the person that he or she is required, within a specified time, to give that information: (s 66(3)(d) and (h)).
· If the Secretary notifies such a person and the request is reasonable and the person doesn’t comply, then NSA is not payable: (s 63(5)).
· The notification may be made by sending a written notification by prepaid post to the last known postal address of the person – but the Secretary may also give the notification in any other way: (s 63(8)).
· The Secretary may determine that a person who does not receive NSA because of a failure to comply with such a notification can receive that allowance if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement: (s 63(9)).
· The notification to the person must inform the person of the effect of s 63: (s 63(11)).
23. I am satisfied that, with one possible exception, the request made to Mr Dos Santos on 17 September 2002 did comply with the formal requirements of s 63 in that:
· Section 63 does apply to him by virtue of his application for NSA.
· The delegate did form an opinion that he should provide certain information.
· A request for information was communicated to him both orally and by handing him document A3.
· The requirement of Mr Dos Santos by way of the notification was reasonable because it was relevant to the issue of whether the allowance sought by him was payable.
· The written requirement did set out in general terms the effect of s 63.
24. The possible exception mentioned above relates to whether the notification given to Mr Dos Santos required the information within a sufficiently “specified time” as required by s 63(3). Document A3 contains in the printed part a statement that “failure to provide the information requested within 14 days after this notice is given” may result in various consequences to the recipient of the notice. However, document A3 has had stamped on it, no doubt by the delegate who dealt with Mr Dos Santos on 17 September 2002, a notice stating “please return by 24 September 2002” and it is clear that on 17 September 2002 Mr Dos Santos was told that the information must be provided by 24 September 2002. To that extent, the document A3 was contradictory in relation to the time within which Mr Dos Santos was to provide the information sought although it is quite clear that he was in no doubt that he had to provide the information by 24 September 2002.
25. In the event, on the view that I have taken of the matter, I do not believe it is necessary for me to reach a final conclusion about whether the written notification given to him on 17 September was an effective legal requirement under s63 of the Administration Act. It either was legally effective or it was not.
26. On the assumption that it was a legally effective notification under s63, it is clear that Mr Dos Santos consciously failed to comply with the requirement in full knowledge of what the consequences would be ie that his claim could not be assessed and would be rejected. On that assumption I consider that the correct or preferable decision to be made on Mr Dos Santos’ application was to refuse it because the request was a reasonable one and s63(5) provides that in such circumstances the NSA was not payable.
27. On the other hand, on the assumption that the request for information made of him was not a legally effective request under s63, it remains the case that Mr Dos Santos knew explicitly on that day that Centrelink required further information in order to make an assessment of his claim and that he consciously declined to provide the information. It was apparent to him that if he did not provide the information then Centrelink would not be able to complete the assessment of his claim. In such a situation the delegate would left in a position of being uncertain about relevant factors concerning whether or not the benefit claimed was payable (such as the possibility of a liquid assets waiting period and the correct calculation of the rate of payment). The delegate could not be satisfied that Mr Dos Santos was both qualified for the benefit claimed and that the benefit was payable to him in the circumstances. If the delegate was left in that state of uncertainty then it could not be said that Mr Dos Santos had provided all the information needed to establish his entitlement to NSA and the correct or preferable decision was to reject the application: see Re MacDonald and Director General of Social Security (1984) 6 ALD 6.
28. Although it was not mentioned by either party at the hearing, I have considered the decision of Re Glazebrook and Secretary,Department of Social Security (1996) 41 ALD 478 in which Deputy President Blow considered the position of an NSA claimant who declined to complete a question on a claim form concerning whether any person of the opposite sex lived in his house because the claimant believed that it was an impertinent question. DP Blow concluded that, although the information sought in the relevant part of the form served a useful purpose and was thus “reasonable,” there had been a failure to comply with the technical requirements of a predecessor section of s63 and hence it could not said that the claimant had been required to provide information. In that case the Tribunal proceeded to decide that the claimant was eligible from the time of his application. If it is necessary, I consider that the present case can be distinguished from the decision in Glazebrook on the basis that evidence was given to the Tribunal in that case that provided the information that should have been provided by the claimant when completing the claim form. In that way the Tribunal was able to form its own view about whether the claimant lived in a marriage-like relationship with another person. In the present case no information has been provided by Mr Dos Santos that would enable either Centrelink or the Tribunal to consider and form an opinion about the matters that the delegate (or the Tribunal) needed to determine in order to make a decision regarding Mr Dos Santos’ eligibility.
29. My conclusion is that, whether or not the request for information that was made on 17 September 2002 was an effective request under s63 of the Administration Act, the correct or preferable decision is that the Tribunal can not be satisfied that as at 24 September 2002 or thereafter Mr Dos Santos was eligible to receive NSA. Accordingly, the decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen
Signed: ........................(sgd J Lim)................................
AssociateDate/s of Hearing 29 April 200
Date of Decision 13 May 2003
Counsel for the Applicant Self Represented
Counsel for the Respondent Mr S Ellis
Solicitor for the Respondent Advocacy & Administrative Law Team Centrelink
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