Fenech and Secretary, Department of Employment and Workplace Relations
[2006] AATA 504
•9 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 504
ADMINISTRATIVE APPEALS TRIBUNAL N° V2005/1090
N° V2005/1091GENERAL ADMINISTRATIVE DIVISION
Re: CARMEL FENECH
Applicant
And:SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:9 June 2006
Place:Melbourne
Decision:The Tribunal affirms the decisions of the Social Security Appeals Tribunal made on 17 November 2005.
(sgd) Egon Fice
Member
SOCIAL SECURITY - Newstart Allowance – start date – date of claim – automatic cancellation – failure to lodge appropriate forms
Social Security (Administration) Act 1999 (Cth) ss 68, 68(2), 95(1), 95(2) and 129
Social Security Act 1991 (Cth)ss 615(1)b), 615A, 615A(1), (2), (3) and (4), 616, 620, 621, 635 and 645
Beadle v Director - General Social Security (1985) 7 ALD 670
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
9 June 2006 Mr Egon Fice, Member
1. Mr C. Fenech lodged a claim for the Newstart Allowance (“NSA”), on 11 June 1998. Centrelink, acting as agent for the Secretary, approved the claim on that day and he was told that payment would commence from 18 June 1998. Mr Fenech disagreed with the start date for payment and, upon initial review, the start date was changed to 11 June 1998. Still dissatisfied, Mr Fenech sought further review by an Authorised Review Officer (“ARO”) who affirmed the original decision on 12 January 2000. Mr Fenech then sought review by the Social Security Appeals Tribunal (“SSAT”) which affirmed the decision under review on 17 November 2005. Mr Fenech seeks review of that decision by this Tribunal.
2. Mr Fenech received NSA from 11 June 1998 to 23 February 2005. On 24 March 2005 Centrelink decided to cancel Mr Fenech’s NSA because he failed to lodge an Application for Payment form. An ARO affirmed the decision to cancel Mr Fenech’s NSA on 30 September 2005. Mr Fenech sought review of the decision by the SSAT. The SSAT affirmed the decision on 17 November 2005. Mr Fenech also seeks a review of that decision by this Tribunal.
BACKGROUND
3. According to a letter dated 16 December 1999 written by Mr Fenech, he first applied for the NSA in September 1991. However, the documents provided to the Tribunal would seem to indicate that Mr Fenech lodged a Job Search Allowance claim with the Commonwealth Employment Service at Morwell on 11 May 1992. That claim was unsuccessful because Mr Fenech’s assets exceeded the asset value limit at that time.
4. It seems that Mr Fenech did not take any further steps to rearrange his asset position until 1998.
5. In May 1998 Mr Fenech contacted the Australian Taxation Office (ATO) and the Superannuation and Insurance Commission enquiring whether he could make contributions into his spouse’s superannuation fund. He believes he was given incorrect information by those organisations because he was of the view that this became permissible following amendments to the relevant legislation in September 1997.
6. On 11 June 1998 Mr Fenech lodged an application for NSA with the Centrelink office at Morwell. On the same day, Centrelink sent a letter to Mr Fenech stating that he would be paid NSA from 18 June 1998. The letter also stated that Mr Fenech could not be paid for any period prior to 18 June 1998 because “of the amount of your available funds”. This was, in effect, a reference to the ordinary waiting period of seven days which, it was said, applied to Mr Fenech. The letter also reminded Mr Fenech that in order to receive NSA payments, he would be required to complete and return an Application for Payment form which Centrelink would send to him every two weeks. He was warned that if he did not return that form on time his payments could be stopped. That letter also set out Mr Fenech’s rights in the event that he believed that Centrelink’s decision was wrong. It stated that he should telephone Centrelink or attend the office to speak with a Centrelink officer. It explained the process of review by an ARO and, if still dissatisfied, by the SSAT.
7. On 16 June 1998 Mr Fenech contacted the Centrelink office at Morwell to complain about the start date for payment of his NSA. Mr Fenech explained that he had first contacted Centrelink on 4 June 1998 but the first appointment was not available until 11 June 1998 when he lodged his claim. He told the Centrelink officer that he was advised that his claim would commence on 4 June 1998.
8. Some 50 minutes after receiving Mr Fenech’s call, the Centrelink officer returned his telephone call and left a message for him indicating that he was correct and that his claim would be backdated to 4 June 1998. In fact, Mr Fenech’s NSA start date became 11 June 1998 after allowing for the seven day ordinary waiting period.
9. Although Mr Fenech had a number of further contacts with Centrelink officers between 16 June 1998 and 16 December 1999, the file notes of his discussions with those officers indicate some confusion as to whether Mr Fenech was seeking a review of the decision regarding the commencement of his NSA on 11 June 1998, or whether he was entitled to an earlier start date essentially for the reasons that he had been given incorrect information regarding spousal superannuation payments.
10. Mr Fenech’s frustration with the Centrelink officers came to a head when he attended the Centrelink office on 8 October 1999. He apparently became abusive, used offensive language and repeatedly refused to leave the office. In a letter dated 26 October 1999, the then Customer Service Centre Manager wrote to Mr Fenech asking that in future he make appointments to attend the office.
11. After Mr Fenech had discussions with the Reception Manager at Centrelink, the Regional Manager of the Morwell office wrote to Mr Fenech on 3 December 1999 referring to that conversation and noting that he had expressed concerns about his social security payments, arrears of payments and “an appeal”. Mr Fenech also expressed some concerns about the Financial Information Service Officer. The Regional Manager stated in the letter that he had spoken to his staff about Mr Fenech’s payments and that they seemed to be correct and he was uncertain about the particular decision that Mr Fenech said he wished to appeal. He also noted that Mr Fenech had already appealed to the ARO recently and had been provided with a decision. The Regional Manager requested that, to avoid further confusion, Mr Fenech should put his concerns in writing to him personally and that he would investigate them.
12. Mr Fenech wrote to the Regional Manager on 16 December 1999. In the first paragraph of that letter, Mr Fenech said:
Some time ago, I asked for retrospective allowance. From the first time I applied for New Start Allowance, which was Sep 1991. Reason being that I was given misleading information by several superannuation documents, which I received in 1998. (April & May)
…
13. Mr Fenech’s letter then went on to describe the discussions he had with the ATO and the Superannuation and Insurance Commission regarding spouse contributions to a superannuation fund. He explained that the information he received then was misleading. He also explained that he had contacted Westpac Investment Services in December 1999 regarding a deposit into a Retirement Saver Account. He claimed that this information was also incorrect and misleading. He then stated that Centrelink had previously said to him that he was not entitled to any retrospective payments for the NSA. He also said that he had requested that an ARO review the matter on more than six occasions. He concluded with the request that an ARO examine his claim.
14. On 30 December 1999 the original decision-maker raised a Reconsideration of a Decision form and an ARO Referral in response to Mr Fenech’s letter of 16 December 1999. The original decision‑maker stated “customer doesn’t agree with the date of commencement of his NSA”. The form indicates that Mr Fenech was told of the result of his referral by telephone on 30 December 1999 but it does not include the reconsideration outcome.
15. By letter dated 12 January 2000, the ARO who reviewed Mr Fenech’s file wrote to Mr Fenech stating that he had taken a fresh look at his case and had examined everything on his file and in the computer records. His decision was that Mr Fenech’s request for review had been unsuccessful and he stated that he had decided not to change the original decision. The ARO also told Mr Fenech that if he thought the decision was incorrect he could appeal to the SSAT. Mr Fenech did not do so until 12 September 2005.
16. On 23 June 2000, a Centrelink officer decided to reduce Mr Fenech’s rate of payment following his disclosure that he believed that he had become entitled to the proceeds of sale from his mother’s property in Malta following her death. Mr Fenech appealed this decision to the SSAT. On 4 July 2000 the SSAT set aside the decision under review on the ground that Mr Fenech did not have a present legal entitlement to the proceeds of any monies held in Malta following the sale of his mother’s property.
17. On 28 May 2001 Mr Fenech queried a short payment of $2.00 and sought a referral to an ARO. He was advised by the Centrelink officer who handled that complaint to make an appointment to speak to a Customer Service Officer. Mr Fenech did not wish to make an appointment, believing the issue could be resolved over the telephone. Because he had not done so, the decision was not reviewed. The reason for the change was explained to Mr Fenech by the officer who took the call.
18. Mr Fenech attended an interview with a Centrelink officer on 22 August 2001. He disputed figures that were recorded in his accounts as savings when they were, according to Mr Fenech, superannuation monies to which he did not have access. Apparently there were also some coding errors which were corrected.
19. In late 2003 it appears, from file notes made by Centrelink officers that Mr Fenech, who seemed to be planning to go overseas for a short period of time queried whether his NSA would be cancelled in that event. He was told that it would. He then contacted Centrelink on 3 December 2003 requesting that in the event that he did go overseas, his NSA not be cancelled. Mr Fenech considered that a decision had been made and he wanted that decision reviewed. However, in a letter dated 12 December 2003, a Centrelink Customer Service Officer explained to Mr Fenech that a review could not be conducted until a decision was made. Given that no decision had been made to cancel his NSA at that time, no review could take place. Mr Fenech again contacted Centrelink by telephone on 2 March 2004 asking what had happened with his appeal. He acknowledged to the officer with whom he spoke that he was told that there could be no appeal until a decision had been made. Nevertheless, Mr Fenech said that he had subsequently been advised that this was incorrect and that the appeal should progress.
20. Mr Fenech was also involved in another dispute with Centrelink about his NSA, regarding whether he was in breach of the activity test which had to be satisfied in order for a claimant to receive the NSA. On 17 June 2004 the SSAT affirmed Centrelink’s decision to impose an 18 per cent rate reduction for the period between 11 March 2004 and 8 September 2004. However, after seeking a review by the Administrative Appeals Tribunal (AAT), in a consent decision made on 26 July 2004, the parties agreed that Mr Fenech had not breached a requirement of the activity test and that there should not be a reduction in his rate of NSA.
21. Centrelink notified Mr Fenech, by letter dated 23 February 2005, that an Application for Payment form sent to him on 15 December 2004 was due to be lodged with Centrelink by 9 March 2005. Centrelink arranged an interview with Mr Fenech on the due date and a letter was sent to him on 28 February 2005 informing him of the appointment. The letter also cautioned Mr Fenech that his NSA might be affected if he did not attend that appointment or if he did not contact Centrelink. The letter pointed out that under the Social Security (Administration) Act 1991 (“the Administration Act”) Mr Fenech was required to attend the interview to negotiate a Participation Agreement. The letter warned Mr Fenech that if he failed to attend the interview without a good reason, or if Centrelink did not hear form him, his NSA may be stopped.
22. Mr Fenech did not attend his Centrelink appointment on 9 March 2005 nor did he file an Application for Payment form by that date.
23. A Customer Service Officer at Centrelink sent a letter to Mr Fenech dated 10 March 2005 noting that he had failed to attend his appointment on 9 March 2005 and that he had not contacted Centrelink. The letter also cautioned Mr Fenech if he did not contact Centrelink by 17 March 2005 his NSA may be stopped.
24. On 16 March 2005 Centrelink sent another letter to Mr Fenech stating that Centrelink had not received his Application for Payment form on 9 March 2005 and he was asked to contact Centrelink within 14 days after he received the notice otherwise the NSA payments made to him since 16 December 2004 may be recovered
25. Centrelink did not hear from Mr Fenech. It sent him another letter dated 22 March 2005 informing him that his NSA had been stopped temporarily from 22 March 2005 due to his failure to either contact Centrelink or attend the interview that was arranged for him. Centrelink sent Mr Fenech another letter on 24 March 2005 informing him that his NSA had been cancelled from 16 December 2004 because Centrelink had not received his Application for Payment form.
26. Mr Fenech finally attended the Morwell Centrelink office on 12 April 2005 when he lodged his Application for Payment form. Although that form is dated 9 March 2005, the Centrelink stamp indicates it was not lodged until 12 April 2005. The file note of the interview conducted by the Centrelink officer on that day states that Mr Fenech said he deliberately refrained from lodging the Application for Payment form because Centrelink had not dealt with a number of appeals he claimed were outstanding. According to the file note, Mr Fenech wanted his payments restored and his appeal finalised, and he intended to seek review by the AAT regarding the cancellation. He also stated that he did not care that his payments had been cancelled and did not want them restored. According to the file note, he then walked out of the office.
27. On 20 June 2005 Mr Fenech contacted the Morwell Centrelink office regarding a review of the decision to cancel his NSA. The file note of that conversation indicates that Mr Fenech attended the counter at 1.35pm on that day and asked why a review of the decision to cancel his NSA had not been completed. According to the file note, Mr Fenech said he had requested a review of the decision to cancel his NSA in March 2005 on 12 April 2005. Apparently, Mr Fenech said that he would not lodge any more forms or attend any further appointments until he had an ARO decision on his appeal. The file note then records that the matter was referred to the original decision‑maker who had decided not to restore Mr Fenech’s NSA payment on 12 April 2005.
28. Mr Fenech again attended the Morwell Centrelink office on 8 July 2005 inquiring about his appeal. He was told that if he made an appointment with the Manager, the payments might be reinstated. It appears that Mr Fenech was not interested in complying with Centrelink officers’ requests until such time as his appeal had been heard.
29. On 8 July 2005 the original decision-maker, a Customer Service Officer, sent Mr Fenech a letter indicating that he was the person who made the decision to discontinue his NSA payments. Upon reconsideration of that decision, the Customer Service Officer decided not to restore Mr Fenech’s NSA payments because he had said that he did not care that the allowance had been cancelled and he did not want it to be restored. The letter pointed out Mr Fenech’s rights to a further review by an ARO and the SSAT.
30. Mr Fenech contacted Morwell by telephone on 19 July 2005 seeking review by an ARO of the original decision-maker’s decision.
31. It appears that Mr Fenech also made a request for “all documents on my file” on 12 July 2005. On 9 August 2005 the Freedom of Information Officer responded to Mr Fenech’s request stating that he had decided to release all of the documents on Mr Fenech’s file to him.
32. On 12 August 2005 an ARO who responded to Mr Fenech’s request for review referred the matter back to the original decision-maker as, in his opinion, the reconsideration undertaken by the original decision-maker was not complete and further investigation was required.
33. On 25 August 2005 Mr Fenech lodged a Late Lodgement of Application for NSA Payment form at the Morwell Centrelink office. In essence, Mr Fenech said that the reasons for the late lodgement of the form were that he had requested appeals from three decisions made by Centrelink and that they had not been processed
34. On 30 September 2005 the ARO affirmed the decision of the original decision-maker to cancel Mr Fenech’s NSA. Mr Fenech was advised of that decision by letter on the same day. The ARO also noted that because Mr Fenech had not provided acceptable reasons for the late lodgement of his Application for Payment form, the form could not be accepted. Mr Fenech lodged an appeal with the SSAT regarding that decision on 3 October 2005. On 17 November 2005 the SSAT affirmed the decision under review.
CONSIDERATIONS
35. The outcome of Mr Fenech’s first complaint regarding the decision to commence his NSA payments on 11 June 1998 depends on whether Centrelink can take into account the fact that Mr Fenech received incorrect information regarding contributions into his spouse’s superannuation fund.
36. Under the Social Security Act 1991 (“the Act”) which was in force at the time Mr Fenech first applied for the NSA, the general rule was that the commencement date for payment of the NSA, which was referred to as the “provisional commencement day”, was the day on which a person claimed the NSA (s 615(1)(b)). If a person contacted Centrelink by telephone, then s 615A applied if the person who made the telephone call qualified for the NSA on the day the call was made; the Secretary gave the person written notice acknowledging that Centrelink had been contacted in relation to making the claim; and the person lodged a claim for the NSA within 21 days after the telephone call was made. The person was then taken to have lodged a claim for that allowance on the day which the person made the telephone call (s 615A(1) – (4)).
37. However, NSA was not payable immediately upon contact being made with Centrelink because, under s 620 of the Act, an ordinary waiting period might apply. An ordinary waiting period, as far as Mr Fenech is concerned, is a period of seven days (s 621). Mr Fenech’s case does not fall within any of the exceptions which would exclude the application of the ordinary waiting period and therefore his claim was subject to that requirement.
38. Section 645 of the Act provided that the NSA became payable to a person on the first day that the person was qualified for the allowance as long as no provision in the Act made the allowance not payable to the person. Furthermore, s 616 of the Act provided that NSA was not payable to a person who was qualified for the allowance where the person was subject to one waiting period until the first day after the end of that waiting period.
39. By applying the relevant statutory provisions mentioned above, Mr Fenech’s provisional commencement day for the NSA was 4 June 1998. However, given that he was subject to the ordinary waiting period of seven days, the earliest date on which Mr Fenech could be paid the NSA was 11 June 1998. That was the day upon which payment in fact commenced.
40. Mr Fenech argued that allowance should be made for the fact that he was given incorrect and possibly misleading information by the ATO and the Superannuation and Insurance Commission regarding superannuation contributions which could have been made to his spouse’s superannuation fund. However, there was nothing in the legislation as it stood at that time which would have entitled Mr Fenech to an earlier start date for payment of the NSA. Section 635(1) of the Act made it clear that a person who sought to be granted the NSA “must make a proper claim for that allowance”. Despite the difficulties which Mr Fenech said he experienced prior to 1998, there is no provision in the Act which would permit an earlier start date than 11 June 1998. Therefore, his claim for an earlier start date cannot succeed.
41. The second issue before the Tribunal involves the cancellation of Mr Fenech’s NSA. Mr Fenech’s NSA was cancelled because he refused to lodge an Application for Payment form (Form SU019) with Centrelink on or before 9 March 2005. The purpose of completing the Application for Payment form is to determine a claimant’s entitlement to the NSA which has already been paid in the preceding three month period. It allows adjustments to be made to those payments in the event that the claimant for the NSA has worked in the preceding period.
42. Section 68 of the Administration Act authorises the Secretary to give notice to a person which requires that person to inform Centrelink if a specified event or change of circumstance occurs, or if the person becomes aware that a specified event or change of circumstances is likely to occur. I accept that the Application for Payment form is a valid request given pursuant to s 68(2) of the Administration Act.
43. Failure to provide a statement under s 68(2) is dealt with in s 95(1) of the Administration Act, which provides:
95.(1) If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
44. Section 95(2) of the Administration Act, which deals with special circumstances where a person is unable to comply with the requirements of s 68(2), provides as follows:
95.(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
45. Mr Fenech agreed in evidence that he had received the notice dated 23 February 2005 alerting him to the fact that the Application for Payment form was required to be lodged by 9 March 2005. He said he received the letter of 28 February 2005 asking him to attend an interview which had been arranged for 9 March 2005 at 1.00pm. Mr Fenech also agreed that he had received the letter of 16 March 2005 warning him that if he did not contact Centrelink within 14 days after the date that he received the letter, his payments since 16 December 2004 may be recovered.
46. Mr Fenech finally contacted the Morwell Centrelink office on 12 April 2005 when he lodged the Application for Payment form. According to the file note made by the officer who attended him on that day, Mr Fenech said that he deliberately did not lodge form SU019 because he had a number of appeals “outstanding” which had not been addressed. He said that he did not attend the arranged appointment on 9 March 2005 “to prove a point”. Under cross-examination Mr Fenech confirmed that to be the case. He also confirmed that the Centrelink officer advised him that he should lodge a new claim for the NSA.
47. In my opinion there can be no question about the fact that the automatic cancellation of Mr Fenech’s NSA on 24 March 2005 was in accordance with s95 of the Administration Act. The only question which remains is whether the Secretary ought to have exercised his discretion under s 95(2) of the Administration Act determining that the automatic cancellation provisions in s 95(1) of the Administration Act ought not to apply to Mr Fenech.
48. The expression “special circumstances” has been considered many times by this Tribunal and the Federal Court. In Beadle v Director-General Social Security (1985) 7 ALD 670, at 674 the Full Court of the Federal Court said:
…More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase “special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
49. In Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277 at 281‑282 French J said:
The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened…The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324: Burchett J. But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 27 ALD 309 ; 108 ALR 322…
50. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 Kiefel J said:
…for the present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. …It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary…
51. The question is whether Mr Fenech’s circumstances which led to the cancellation of his NSA on 24 March 2005 were such that they could be regarded as “unusual” or “different” from the ordinary course of events leading to the cancellation.
52. It is obvious from the evidence, and in particular the file notes made by Centrelink officers in the course of dealing with Mr Fenech, that Mr Fenech has formed a view about the way in which the Act operates. In accordance with that view, he has insisted that Centrelink officers address his expressed concerns in an expeditious manner. While there is nothing wrong with Mr Fenech seeking a timely response to his concerns, the main problems seem to have arisen as a consequence of Mr Fenech’s misunderstanding of the way in which the Act operates. In addition, because of Mr Fenech’s forceful and insistent demands made to Centrelink officers, he was asked to leave the office on a number of occasions when he became agitated and abusive.
53. Part IV of Division 1 of the Administration Act sets out the powers available to conduct a review. Section 129 provides that a person affected by a decision of an officer under the social security law may apply to the Secretary for review of a decision. The application need not be made in writing. Where a person applies for review of a decision under s 129 of the Administration Act, the Secretary, the Chief Executive Officer or an ARO must review the decision and either affirm, vary the decision, or set the decision aside and substitute a new decision. There is nothing in the Administration Act which prescribes a time within which the reviewing officer is required to provide his or her decision in writing.
54. As for Mr Fenech’s first request for review of the start date for payment of the NSA, it is reasonably clear from the evidence that there was some confusion about the precise nature of Mr Fenech’s request. Although he had originally complained about the commencement date of his NSA, the evidence indicates that he spoke with a Centrelink officer on 7 September 1998 and advised the officer that he would not continue with his request for review of that decision. Mr Fenech then drew Centrelink’s attention to some other problems which he was having and, understandably, his concerns regarding the start date of the NSA appeared to have resolved. Then, in a letter dated 16 December 1999, Mr Fenech made it clear that he was continuing to seek a review of the start date of his NSA. On the same day, the original decision-maker completed an ARO referral and sent that document to an ARO. Mr Fenech submitted that this document makes it clear that an ARO is required to complete a review of the original decision within four days of the customer requesting a review. However, the note on the referral form to which Mr Fenech referred, reads as follows:
Remember, this case must get to the ARO within 4 days of the customer requesting an ARO review.
It is clear that Mr Fenech has misunderstood that notation. Neither that notation nor anything in the Administration Act requires an ARO to complete a review within a specified time. The ARO provided a written decision on 12 January 2000 in which the original decision was affirmed. In my view, that was entirely reasonable.
55. Mr Fenech was also critical of a “decision” he says was made when he informed Centrelink that he intended to go overseas and asked if his NSA would continue while he was outside of Australia. However, as Centrelink pointed out in a letter to Mr Fenech dated 12 December 2003, no decision had been made regarding the cessation of his NSA if he in fact decided to go overseas. In my view, that was the correct response. No decision had been made to temporarily cancel Mr Fenech’s NSA even though Mr Fenech was told that his NSA would be cancelled if he was overseas. I agree with the Secretary’s submissions that it was merely an opinion offered by the Centrelink officer and not a decision under the Act. It had no effect whatsoever on Mr Fenech’s NSA at that time.
56. As for Mr Fenech’s failure to lodge the Application for Payment form by 9 March 2005, Mr Fenech said that he had deliberately refrained from lodging that form because outstanding requests for review had not been dealt with. He also claimed that, when he attended the Centrelink office on 12 April 2005, he was not told who had cancelled his NSA. It seems to me that Mr Fenech had some difficulty in accepting that cancellation was automatic and in accordance with s 95 of the Administration Act. This is despite the fact that on 8 July 2005 a Customer Service Officer wrote to Mr Fenech stating that he was the person who made the decision of 12 April 2005. Clearly, although the Customer Service Officer may have initiated the process when the Application for Payment form had not been lodged, cancellation occurred automatically pursuant to s95 of the Administration Act.
57. Furthermore, despite Mr Fenech’s subsequent complaints that his appeal against the decision to cancel his NSA was delayed, it is obvious from his evidence and the recorded statements of Centrelink officers that he had said that he did not want the payment restored. Despite that, by 12 July 2005, Mr Fenech was making enquiries about his appeal against the decision to cancel his NSA payments.
58. Having reviewed all of the evidence, it is my view that if there were any significant delays in reviewing Mr Fenech’s complaint, and I do not find that there were, the reasons for any delays can be sheeted home directly to Mr Fenech.
59. On 25 August 2005 Mr Fenech completed and lodged a late lodgement of Application for Payment form for NSA. The reason given by Mr Fenech for late lodgement was that the outstanding requests for review had not been actioned. The officer who dealt with that matter determined that Mr Fenech did not have an acceptable reason for not lodging the Application for Payment form within the requisite time. I agree with that view. I am also of the view that there are no “special circumstances” in this case which would make it appropriate for the Secretary to exercise the discretion available in s 95(2) of the Administration Act.
conclusions
60. As Mr Fenech was not able to demonstrate by evidence that the start date for payment of his NSA should be brought forward, or that the Secretary should exercise his discretion in respect of the late lodgement of the Application for Payment form, the Tribunal must affirm the decisions made by the SSAT on 17 November 2005.
I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision of:
Mr Egon Fice, Member
(sgd) Lydia Zozula
Associate
Date of hearing: 15 May 2006
Date of decision: 9 June 2006
Advocate for the applicant: Self-representedAdvocate for the respondent: Ms J. Hume, Legal Services Branch, Centrelink
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