Fadi Merheb and Secretary, Department of Social Services
[2014] AATA 512
[2014] AATA 512
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1785
Re
Fadi Merheb
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 22 July 2014 Date of written reasons 28 July 2014 Place Melbourne The Tribunal affirms the decisions under review.
[sgd]........................................................................
Mr C Ermert, Member
CATCHWORDS
Newstart Allowance - new decision under review - time limits for favourable determination – notices - decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 ss. 109. 180
REASONS FOR DECISION
Mr C Ermert, Member
28 July 2014
INTRODUCTION
These written reasons for decision are essentially the same as those given orally at the conclusion of the hearing. The introduction and details of the hearing have been added to facilitate understanding for those not present at the hearing.
Mr Merheb, the Applicant, began receiving Newstart Allowance from 28 May 2013. Centrelink, the service provider for the Department of Social Services, the Respondent, calculated the rate of the Allowance on an incorrect assessment of Mr Merheb’s income from work. Mr Merheb has not worked since 2010 and became bankrupt.
On 12 December 2013 Mr Merheb contacted Centrelink regarding the incorrect rate of his Newstart Allowance. On 9 January 2014 an Authorised Review Officer (ARO) of Centrelink decided that Mr Merheb was not receiving business income and that the arrears of the resulting increase in his Newstart Allowance was payable from 17 October 2013. On 20 February 2014 the Social Security Appeals Tribunal (SSAT) affirmed the ARO decision. On 8 April 2014 Mr Merheb lodged with this tribunal an application for review of the SSAT decision.
On 16 April 2014 Centrelink varied the SSAT decision to the extent that the rate of increase of Newstart Allowance paid to Mr Merheb was to be increased from 4 October 2013 to 16 October 2013. On 6 June 2014 Centrelink again varied the SSAT decision to also apply the increase for the period 20 September 2013 to 3 October 2013.
THE HEARING
Mr Merheb represented himself at the hearing and was assisted by Mr Walid Elasmar and Mr Philip Peters. Mr Peters participated via a telephone link. Mr Hester, a departmental lawyer, represented the Respondent. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and Supplementary T-documents ST1 to ST4. For the Applicant, I took into evidence his letter to the tribunal dated 18 July 2014 together with an attached copy of a Claim for Compensation from Centrelink (Exhibit A1). Mr Elasmar also handed up a copy of a letter from Victoria Legal Aid addressed to Mr Merheb, dated 22 June 2014. For the Respondent I took in the Secretary’s Statement of Facts and Contentions (SF&C) dated 6 June 2014.
LEGISLATION
The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Act).
THE ISSUES
Preliminary Issue
As a preliminary issue I must determine the decision under review. In the SF&C, Mr Hester cited subsection 180(2) of the Act and submitted that the decisions under review were the new decisions made by Centrelink on 16 April 2014 and 6 June 2014 (the new decisions).
Subsection 180(2) provides:
If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:
(a)the SSAT had set aside the original decision and substituted the new decision; and
(b) the application were an application for review of the new decision.
In this case the new decisions were made on 16 April 2014 and 6 June 2014. Both decisions were made after Mr Merheb’s application to the AAT on 8 April 2014 and before the present determination of the application. Accordingly, I find that the decisions under review in the present application are the new decisions.
Substantive Issue
The substantive issue is whether Mr Merheb’s Newstart Allowance has been correctly increased from 20 September 2013.
THE EVIDENCE AND SUBMISSIONS
Mr Merheb presented no evidence. He said he was happy for Mr Elasmar to present his case.
Mr Elasmar presented no evidence but commenced his submissions. He contended that Mr Merheb’s allowance was taken away by a 100% mistake of Centrelink. He said that Mr Merheb’s benefit payment was taken by Centrelink to be income in assessing the allowance and that this was incorrect. Mr Elasmar contended that the Centrelink notices about the allowance were confusing, particularly for Mr Merheb whose grasp of the English language is not good. Mr Elasmar contended that there was no way Mr Merheb could understand the notices.
Mr Elasmar submitted that Mr Merheb was pressing the case because he wanted the right to proceed to a higher court.
Mr Peters and Mr Elasmar also sought an adjournment until Mr Merheb’s claim for compensation from Centrelink is determined.
Mr Hester said the Respondent objects to an adjournment. He said the Respondent has adopted new procedures for dealing with compensation claims. The procedures are to hold the claims in abeyance until the Tribunal has made its determinations. Accordingly, an adjournment would result in a stalemate.
I advised both parties that I had no jurisdiction in the matter of a claim for compensation and the hearing would not be adjourned.
Mr Elasmar submitted that Mr Merheb did not receive the Centrelink notices. He said that Mr Merheb attended Centrelink on many occasions but the issues in the notices were never explained to him.
On the issue of the notices, Mr Hester referred to the notice issued on 24 July 2013 (T7, page 39). He pointed out the sections of the notice containing Mr Merheb’s rights if he disagreed with the decision in the notice and the statement that it is important to ask for a review within 13 weeks of being notified of the decision.
Mr Hester stated that he relied on the contentions in the SF&C. He referred again to subsection 180 of the Act in support of his contention that the decisions made on 16 April 2014 and 6 June 2014 were the decisions under review (SF&C paragraph 4.2). He contended that the period in question in this case is from 28 May 2013 to 19 September 2013 inclusive (SF&C paragraph 4.3).
Mr Hester referred to notices sent to Mr Merheb on 24 July 2013, 25 July 2013 and 4 September 2013. He submitted these notices were not within 13 weeks of Mr Merheb’s review application which was lodged on 12 December 2013. He contended that the provisions of subsection 109(2) of the Act prevented the increased payments commencing from those dates. Mr Hester submitted that the earliest notice within 13 weeks of Mr Merheb’s application was the notice given on 20 September 2013 when his allowance was increased as a result of an increase in the consumer price index. Accordingly, the date of 20 September 2013 was the earliest date from which arrears could be paid.
In his resubmissions, Mr Peters said that Mr Merheb was an innocent party in this matter. Mr Elasmar submitted that this was Mr Merheb’s first claim for Newstart Allowance. He reiterated that Mr Merheb cannot speak English very well.
TRIBUNAL CONSIDERATIONS
The findings of the ARO and the SSAT that Mr Merheb’s rate of Newstart Allowance was incorrectly assessed are not contested. The only issue in contention is the earliest date from which the arrears can be paid.
In considering that issue I refer to section 109 of the Act which defines the date of effect of favourable determinations resulting from review. Subsection (1) provides that:
(1)If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
The notices of the decisions in relation to Mr Merheb’s Newstart Allowance for the period in question were issued on 24 July 2013 (T7, pages 39 to 41), 25 July 2013 (T9, pages 48 to 49) and 4 September 2013 (T11, pages 52 to 53). Mr Merheb’s first application for a review of these decisions was lodged on 12 December 2013. This date is not within 13 weeks after the notice was given. As a result the provisions of subsection 109(1) are not met.
Subsection 109(2) provides for the circumstances where the application for review of the decisions is lodged more than 13 weeks after the notice is given, in which case the favourable determination takes effect on the day on which the application for review was made. Mr Merheb application for review was lodged on 12 December 2013. Accordingly, the date of effect for Mr Merheb’s favourable review of the notices dated 24 July 2013, 25 July 2013 and 4 September 2013 is 12 December 2013.
However, the Respondent accepts that on 20 September 2013, Mr Merheb was given a notice under subsection 109(7) of the Act when his Newstart Allowance was increased as a result of an increase in the consumer price index. As this date is within 13 weeks of Mr Merheb’s application for review subsection 109(1) applies to this notice. The Respondent accepts that arrears can be paid from 20 September 2013.
There are no other sections of the Act applicable to the determination of the date of effect of the determinations in favour of Mr Merheb. There are no discretionary provisions available to me in the application of the date of effect. Accordingly, I find that the earliest date from which Mr Merheb can be paid arrears of his Newstart Allowance is 20 September 2013.
In regard to the contention that Mr Merheb did not receive the relevant notices I note the copies of the notices in the T-documents. I note also the contention of Mr Elasmar that Mr Merheb could not understand the notices as his English is not good. Implicit in this contention is that Mr Merheb received the notices but that he could not understand them. I note also the contention in the SF&C, restated by Mr Hester during the hearing that copies of the relevant notices were sent also to Mr Peters, in his capacity of assisting Mr Merheb. This contention was not contested by Mr Peters at the hearing.
I am aware of the considerable case law that has determined that notices properly sent are deemed to be received. From the available evidence I am satisfied that the relevant notices were properly sent to and received by Mr Merheb.
I affirm the decisions of Centrelink made on 16 April 2014 and 6 June 2104 to increase the rate of Mr Merheb’s Newstart Allowance from 20 September 2013.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member [sgd]........................................................................
Associate
Dated 28 July 201428 July 2014
Date of hearing 22 July 2014 Applicant In person Advocate for the Respondent Mr M Hester, Departmental Lawyer
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