Eastham and Department of Family and Community Services

[2001] AATA 497

DECISION AND REASONS FOR DECISION [2001] AATA 497

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2001/189

GENERAL        APPEALS       DIVISION       )          
           Re      JEAN EASTHAM
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Respondent

DECISION

Tribunal       Adjunct Professor L.S. Rodopoulos, Member    

Date9 May 2001

PlaceMelbourne

Decision      For reasons given orally at the hearing, the decision under review is affirmed.      

(Sgd)    L.S. Rodopoulos
  Member

SOCIAL SECURITY – cancellation of partner allowance – temporarily left Australia for a period of more than three months – decision affirmed
Social Security Act 1991 s 771HA

REASONS FOR DECISION

9 May 2001   Adjunct Professor L.S. Rodopoulos, Member       

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT"), dated 30 January 2001 to affirm a decision made by a Centrelink officer on 24 August 2000 to cancel payment of partner allowance for the period 1 September 2000 to 18 September 2000.  The decision was affirmed by an Authorised Review Officer ("ARO") on 23 October 2000.

2. Pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") the Tribunal received into evidence the T documents T1–T17.  Mrs Jean Eastham represented herself.  The respondent was represented by Mr David Perdon from the Centrelink Advocacy and Administrative Law Team.
   background

3. Mrs Eastham, in receipt of partner allowance, temporarily left Australia on 31 May 2000 for an overseas holiday.  She returned on 19 September 2000 not able to obtain an earlier return flight because of Olympic Games bookings.  On 24 August 2000 Centrelink advised Mrs Eastham that her partner allowance had been cancelled from 1 September 2000 because she had been away from Australia more than three months.
   legislation

4. Section 771HA of the Social Security Act 1991 ("the Act") provides:

   771HA  Qualification for partner allowance

   (1)Subject to subsections (1A) and (3), and section 771HB, a person is qualified for a partner allowance in respect of a period if:

   (a)       throughout the period, the person is a member of a couple; and

   (b)       throughout the period, the person's partner is at least 21; and
   (c)       the person's partner is receiving:

   (i)youth allowance, austudy payment, newstart allowance, sickness allowance, special benefit, rehabilitation allowance, age pension, disability support pension, mature age allowance or service pension; or

   (ii)assistance under a Student Financial Supplement Scheme or an income tested living allowance under an Aboriginal study assistance scheme; and

   (d)throughout the period, the person is an Australian resident; and

   (e)the person was born on or before 1 July 1955; and

   (f)the person is not qualified for parenting payment at any time during the period; and

   (h)       the person does not have recent workforce experience.

issues before the tribunal

1. It is not in dispute that Mrs Eastham was overseas during the period identified and that she notified Centrelink of her travel plans. Nor is it in dispute that the period exceeded three months and is therefore subject to s 771HA of the Act.

2. At the hearing Mrs Eastham reiterated the argument put to the SSAT at T1 p3 namely that:

   1.)That staff at Centrelink were negligent in their duty to inform me of my rights and responsibilities under the Social security act [sic] 1991 section 771 HA and specifically sub section 771 HA (4) point (a) either verbally or through access to written material.

   2.)That the Social Security act [sic] can only be accessed via a computer, which therefore discriminates against recipients who do not own, have access to, or are disadvantaged due to various degenerative bodily functions. And in effect, material available on-line is either not current, condensed or of a nature that renders it impractical in its purpose.

   3.)That my intent to return to Australia was within the three-month period however due to the Sydney Olympic games all return flights where [sic] booked up from 01/08/00 to 18/09/00.

   4.)That as the flight was booked and paid for in January 2000 and staff at Centrelink would not acknowledge the information until May 2000, or inform me of my responsibilities to return within 3 months there was no way that I could comply, or reschedule my flight.

Further Mrs Eastham told the Tribunal that (trans. p3, 4-5):

MRS EASTHAM: I am not disagreeing with the Act as it stands. I am disagreeing with the failure to be notified of this Act or to be able to receive or access information of this Act. I visited Centrelink in January of 2000 for other reasons, but at the same time I told them verbally and included the dates of what time I would be absent from Australia and was told on three separate occasions to come back nearer to the date of departure. On the fourth time that I went back and I took in various forms, they were photocopied and I was given a form to fill in upon my return to Australia and again no-one told me that I could only be gone for three months.
The fact that, as Mr Perdon told me at the meeting, that ignorance is no excuse under the law, I argue that how can I become aware of the law if I do not have any access to it and that is by going through Centrelink, by going – in hindsight, my son used the computer to access it, but it isn't even explained on the computer, that you can't leave Australia for more than three months.  The six-monthly reviews that I had to fill in told me I had to notify the department, but again did not state that I could only be gone for three months.
MRS EASTHAM:  . . . I used to just get a form to fill in which was for a 12 weekly review to be eligible for partner allowance and on the back it tells me that I have to notify the department if I intend to leave Australia for any given time, whether for a holiday or permanently, but there is nothing to indicate how long I can go for.
PROF RODOPOULOS:   And you raised that with Centrelink staff?  You said you went back four times.
MRS EASTHAM:   I went four time to tell them, but each time they simply said come back when it is nearer to the date of departure.
PROF RODOPOULOS;  Right, but no-one discussed with you that there is a three-month - - -

1. Mr Perdon put to the Tribunal that if Mrs Eastham considered that she has suffered a financial loss due to negligence or defective administration her only options were to apply in writing to the Manager of her local Centrelink office under Regulation 9 of the Financial and Accountability Act 1997 or under the Compensation for Detriment Caused by Defective Administration Scheme.  This is because the AAT has no jurisdiction to deal with the issues raised as were also identified by the SSAT at paragraph 11 of T2 p8. 

2. Further Mr Perdon told the Tribunal (trans. pp3-4):

   MR PERDON:  . . . . Mrs Eastham has been advised of a number of non-Social Security Act remedies that might be available in her case and they include regulation 9 of the Financial Management and Accountability Act 1997 which covers negligent advice or mis-advice or lack of advice for the compensation for detriment caused by a defective administration scheme which was introduced in 1995 and that does not cover negligence, but it covers cases where there has been a specific and unreasonable lapse in complying with existing administrative procedures that would normally have been applied or there is an unreasonable systemic failure to institute appropriate administrative procedures to cover a claim and circumstances and those service or equity concerns of the applicant might better be explored in those for a [forum].
   PROF RODOPOULOS:  And that was something that you had conveyed to Mrs Eastham some time ago now.
   MR PERDON:  Yes, that is correct.

discussion and consideration

1. After hearing from the parties the Tribunal indicated to Mrs Eastham that it was in agreement with Mr Perdon that it did not have jurisdiction to deal with the issues of Centrelink administration raised by Mrs Eastham.  The Tribunal therefore suggested that she seek Mr Perdon's guidance as to how to activate an application under Regulation 9 of the Financial and Accountability Act 1997 and that she could also take the matter to the Office of the Commonwealth Ombudsman.

2. In so suggesting the Tribunal notes Mrs Eastham's claims, identified at paragraph 6 of these reasons and the evidence given to the SSAT at P2 pp5-6 of her frequent contacts with Centrelink prior to her departure regarding her travel.  It also notes her claims that the form that she was required to fill out when planning to leave the country do not state that entitlements ceases after a three month period of absence.  The Tribunal also notes Mrs Eastham's evidence that everytime that she attended Centrelink and mentioned her planned overseas trip she was told to return when she got her ticket and that Centrelink had recorded her travel plans and noted a limited portability period of three months (T5 p13).  What is in dispute is whether Centrelink conveyed this information to Mrs Eastham (the Tribunal did not question Mrs Eastham on this point and the Centrelink note at T5 p14 "No letter will be sent to a/n." ).  Refer also to T10 p23 where, on her return to Australia and after notification of cancellation, Mrs Eastham is recorded as having told a Centrelink officer that: (T10 p23)

   She said she should have been told then that her PTA would only be payable for 3 months.  I asked her if she has asked for information regarding how long she would be paid while overseas.  She said she had not asked and that she need not have to ask and should have been told anyway.  I asked if she would have shortened her stay overseas if she had known that her PTA would only be paid for 3 mths, she said 'NO', because due to the Olympic, there were no flights available between start of August and 3rd week of September.  She said it is not her fault if there were no flights for those periods.  She said she wants to be paid for the period 1/9/00 to 18/9/00 and wants to appeal higher.

3. Accordingly, for the reasons given, the Tribunal affirmed the decision under review.

   I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Adjunct Professor Rodopoulos, Member

   Signed:         Grace A. Carney
     Associate

   Date/s of Hearing  9 May 2001
   Date of Decision  9 May 2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Nil – Applicant Self Represented
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Nil
   Departmental Advocate           Mr D Perdon