Golden and Secretary, Department of Education, Science and Training

[2007] AATA 1585

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1585

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0289

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATHRYN GOLDEN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date25 July 2007

PlaceBrisbane

Decision I set aside the decision of the Social Security Appeals Tribunal of 29 January 2007 and substitute the decision that Ms Kathryn Golden is entitled to be paid youth allowance at the “away from home rate” for the period when she was studying full-time at Downlands College. The matter is remitted to the Secretary to calculate the amount of back payment.

.................[sgd].............................

Peter McDermott, Senior Member

CATCHWORDS

SOCIAL SECURITY – payment of youth allowance – appropriate date for the payment of youth allowance at the “away from home rate” – whether the applicant received notice of a decision – whether the applicant can receive back payment – decision set aside – substitute decision that applicant entitled to be paid youth allowance at “away from home rate” for period of full time study – remitted to respondent to calculate back payment

Social Security (Administration) Act 1999 - ss 109(2), (3)

Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272
Austin v Secretary, Department of Family & Community Services (1999) 92 FCR 138

REASONS FOR DECISION

25 July 2007   Senior Member P McDermott, RFD

Introduction

1.      On 1 November 2006 Centrelink made a decision to pay youth allowance to the applicant, Ms Kathryn Golden, at the “away from home rate” from that date. The issue I have to decide is whether youth allowance can be paid to Ms Golden at the “away from home rate” for the period before 1 November 2006 when she was certainly qualified to receive youth allowance at the “away from home rate”.

History of the matter

2.      On 23 September 2005 Ms Golden was studying and boarding at Downlands Sacred Heart College in Toowoomba. On 27 September 2005 Centrelink made a decision that she would be paid youth allowance at the “away from home rate” from that date. On 26 November 2005 Centrelink sent Ms Golden a letter advising her that she would be paid youth allowance at the “living at home rate” from 26 November 2005.

3.      On 24 January 2006 Ms Golden was advised that she would be paid youth allowance at the rate of $183.20 per fortnight and that the payment of youth allowance was based on her studying full-time at Downlands Sacred Heart College with the course ending on 18 November 2006. This rate of youth allowance was not the “away from home rate”. This decision had the consequence that Ms Golden was not paid youth allowance at the “away from home rate” for the 2006 academic year even though she was then boarding at Downlands Sacred Heart College.

4.      The actual letter of 1 November 2006 was not admitted before me as evidence. What was admitted before me was an extract from the computer records of the respondent which contains the particulars that would have been contained in the official letter to the applicant. This creates a difficulty in that I do not have the actual format of the letter.

5.      The Secretary has quite properly conceded that Ms Golden was eligible for the payment of youth allowance at the “away from home rate” when she was studying full-time and boarding at Downlands Sacred Heart College. The Secretary has also properly conceded that in the 2006 school year Ms Golden was not paid youth allowance at the “away from home rate” while she was studying full-time and boarding at Downlands Sacred Heart College.

6.      The Secretary had also conceded that Centrelink was contacted at some time prior to 24 January 2006 and was advised that Ms Golden would be recommencing study at the Downlands Sacred Heart College. During the hearing I made the observation that the T-Documents did not contain a record of that conversation. It would seem that Centrelink have been unable to locate the relevant computer record of that conversation. I accept that it would be most probable that the mother of Ms Golden contacted Centrelink to advise them that Ms Golden would be recommencing her studies in 2006.

7.      I must say that I find it surprising that, on 24 January 2006, Centrelink determined a rate of payment at the “living at home rate” when Ms Golden clearly resided outside of Roma and Downlands Sacred Heart College is located in Toowoomba. In 2005 Ms Golden had been paid youth allowance at the “living away from home rate”.

8.      It seems that a review of the decision was only sought on 1 November 2006 after the mother of the applicant had been recently advised by a Centrelink officer that Ms Golden was being paid youth allowance at the incorrect rate.

9.      On 29 November 2006 the authorised review officer affirmed the decision of Centrelink not to increase Ms Golden’s rate of youth allowance before 1 November 2006.

10.     On 29 January 2007 the Social Security Appeals Tribunal affirmed the decision of Centrelink.

11.     Ms Golden has made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal of 12 February 2007.

Consideration

12. In determining this application I have to decide whether the letter of 24 January 2006 constitutes a notice of a decision for the purposes of s 109(2) of the Social Security (Administration) Act 1999 (the Act). It is common ground between the parties that if the letter is not a notice of a decision, then the applicant can seek back payment under s 109(3) of that Act.

13. It is therefore necessary for me to consider the terms of the letter of 24 January 2006 to ascertain whether it is a notice of a decision for the purposes of s 109(2) of the Act. In examining this question I have had regard to the decision of Cooper J in Secretary, Department of Family and Community Services v Rogers[1]. His Honour observed that there had to be a communication of the making of a “decision”; however, there was no requirement that the reasons for a decision be given[2]. The Secretary regards the decision of Cooper J in that case to be relevant to the determination of the application in the present case.

[1] (2000) 104 FCR 272.

[2] Note 1 above at 284, [33].

14.     The letter of 24 January 2006 advises Ms Golden that she would be paid youth allowance at the rate of $183.20 per fortnight. It also contains the following remarks: “Your Youth Allowance is based on you studying full time at DOWNLANDS SACRED HEART COLLEGE, Year 12 Secondary Studies/Adult Matric with the course ending on the 18 November 2006. If any of this information is incorrect please phone us on 13 2490 or advise your nearest Centrelink Office immediately”.

15.     I consider that there is much force in the submission of Mr Golden, who represented his daughter, that the letter “contains only a repetition of information which had been supplied by the applicant’s mother together with a dollar figure”.

16. In my view, the letter of 24 January 2006 does not constitute a notice of a decision for the purposes of, or within the spirit of, s 109(2) of the Social Security (Administration) Act 1999.  It does not, in my view, communicate sufficient information to enable an applicant to make a decision as to whether or not to seek a review.

17.     The letter certainly communicated advice that youth allowance would be paid at a certain rate to the applicant. In my view, this letter is not even the notice of a “narrow decision” in the sense that Drummond J used that term in Austin v Secretary, Department of Family and Community Services[3]. There, the letter in question was taken to be a “notice…advising [the applicant] of the making of a previous decision”[4] to determine the rate at which the applicant would be paid Newstart Allowance. In this way, that letter was notice of “nothing more than that narrow decision”[5].

[3] (1999) 92 FCR 138 at 149, [45].

[4] Note 3 above.

[5] Note 3 above.

18.     That case is authority for the proposition that communication only constitutes a good “notice” of a decision if it was identifiable as a communication to the recipient that a decision had been made to pay the recipient an allowance at a particular rate[6]. Additionally, a clear statement that a decision had been made fixing the rate of payment at a particular figure as opposed to information from which an inference might be drawn would be required before the communication could constitute notice[7].

[6] Note 3 above at 138.

[7] Note 3 above at 138.

19.     The letter of 24 January 2006 did not state that a decision was made that the applicant was to be paid youth allowance at the “living at home rate”. Hence, I find that I cannot characterise the letter as notice of a decision, narrow or otherwise.

20.     Perhaps, more importantly, the letter of 24 January 2006 does not specify the date from which the applicant would be paid youth allowance; that is, the date on which the entitlement to receive youth allowance arose. All that is said is that there would be a regular payment “from payday 31/01/2006”.

21.     I have kept in mind the observations of Cooper J in Secretary, Department of Family and Community Services v Rogers[8] that the applicant in that case had been notified that her pension would be “reduced”. That decision of His Honour is clearly distinguishable from the circumstances in this case where Ms Golden was not informed that she would be paid youth allowance at a lower rate.

[8] Note 1 above at 285, [39].

Conclusion

22.     I set aside the decision of the Social Security Appeals Tribunal of 29 January 2007 and substitute the decision that Ms Kathryn Golden is entitled to be paid youth allowance at the “away from home rate” for the period when she was studying full-time at Downlands College. The matter is remitted to the Secretary to calculate the amount of back-payment.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD

Signed:         .............[sgd].................................................................
           Eleanor O’Gorman, Associate

Date/s of Hearing  30 April 2007
Date of Decision  25 July 2007
For the Applicant  Mr R Golden
For the Respondent                  Mr B Hamilton, Departmental Advocate