Haque and Secretary, Department of Family and Community Services

[2005] AATA 153

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/1892      )  

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMAD HAQUE

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY
SERVICES

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date 18 February 2005

Place Sydney

Decision  The decisions under review are affirmed.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – Reviewable decisions concerning cancellation of newstart allowance and no payment of arrears from the date of cancellation – Newstart activity test breach rate reduction of 24% in specified period – whether newstart allowance correctly cancelled – whether Applicant qualified to be paid newstart allowance during the whole or part of the period of absence from Australia -  consideration of evidence and findings – reasons for absence – Tribunal agrees with decision to cancel Applicant’s newstart allowance and refuse the payment of arrears – whether activity test penalty of an 18% rate reduction applied to the Applicant was correctly applied – consideration of evidence and findings – decisions under review affirmed. 

LEGISLATION

Social Security Act 1991 – sections 601(4), 601(6), 604, 605, 644AA, 644AE(2),1212A,

1213, 1217, 1236, 1237AAD.

Social Security (Administration) Act 1999 – sections 95, 109(2), 237

18 February 2005               REASONS FOR DECISION

Ms N Isenberg, Member

DECISIONS UNDER REVIEW

1.      The decisions under review before the Administrative Appeals Tribunals (“the Tribunal") were:

(a)The decision of the Respondent, the Secretary, Department of Family and Community Services ("Centrelink") dated 10 April 2002 (T27) as affirmed by the Authorised Review Officer (“ARO”) on 16 January 2003 (T27) and the Social Security Appeals Tribunal (“the SSAT") on 20 October 2003 (T2), to cancel Mr Haque’s newstart allowance and not pay arrears from the date of the cancellation. (“cancellation decision”)

(b)The decision of the Respondent, the Secretary, Department of Family and Community Services ("Centrelink") dated 10 March 2003 (T8) as varied by the ARO on 10 September 2003 (T8) and affirmed by the Social Security Appeals Tribunal (“the SSAT") on 20 October 2003 (T2), that a newstart activity test breach rate reduction of 24 percent applied to Mr Haque from 10 March 2003 to 4 September 2003. (“breach decision”).

THE HEARING

2.        A hearing was held before me on 2 February 2005 in which each of the above decisions was considered.  The Applicant spoke to me by conference telephone from Bangladesh, without representation.  Centrelink was represented by Susan Mantaring, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3.          I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence (T1, pages 1-157 and T2, pages 1-28), together with Centrelink’s Statement of Facts and Contentions (R1).

4.          Mr Haque gave evidence and was cross-examined on behalf of Centrelink.  I also asked him questions.

5.          In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

6.           Each matter is addressed below.

CANCELLATION DECISION

BACKGROUND

7.           On 18 March 2002 Mr Haque left Australia to travel to Bangladesh to visit his ill wife, who resided there, she being unable to obtain a visa for Australia.  Prior to that time Mr Haque was receiving newstart allowance but this was cancelled with effect from 13 March 2002 because a fortnightly continuation form was not lodged.  No forms were lodged while he was overseas.

8.           Mr Haque returned to Australia in November 2002 and was granted newstart allowance from 11 November 2002.  At that time he also sought a review of the decision to cancel his newstart allowance for the period of his absence from Australia, citing his wife’s illness.  On 16 January 2003 the ARO affirmed the decision to cancel Mr Haque's newstart allowance, but decided that Mr Haque's newstart allowance was portable due to an acute family crisis for the period that his wife was in hospital.  Thus, his newstart allowance was portable for the period 18 March 2002 to 19 March 2002, the latter being the date his wife was discharged from hospital.

9.           Arrears were not paid, however, because Mr Haque had not requested a review of the decision to cancel his newstart allowance within 13 weeks from the date of the notice of cancellation.  That notice had been sent to his last known address in Australia because a letter received by Centrelink on 2 April 2002 from Mr Haque did not specify an overseas contact address for him.  The ARO also said that Mr Haque's newstart allowance was no longer portable once his wife left hospital, and considered that Mr Haque’s reason for remaining in Bangladesh was to make his wife pregnant so as to enhance her chance of gaining Australian residence.  Newstart allowance was therefore not paid for this period.

ISSUES BEFORE THE TRIBUNAL

10.          I needed to consider the following:

(a)Whether Mr Haque’s newstart allowance was correctly cancelled from 13 March 2002.

(b)Whether he was qualified to be paid newstart allowance during the whole or part of the period of his absence from Australia from 18 March 2002.

CONSIDERATION OF EVIDENCE AND FINDINGS

11.          I asked Mr Haque about his newstart allowance prior to his departure for Bangladesh.  He said that he went to Centrelink prior to leaving Australia.  He said he told them that he had to go to Bangladesh because his wife was very sick.  He said he was told that there was “no problem” and that he would be paid while he was overseas.  He said the clerk entered his jobseeker number into the computer and he therefore assumed his payments would continue.

12.          Mr Haque told the SSAT that Centrelink told him to write when he arrived in Bangladesh explaining his absence.  Mr Haque wrote to Centrelink on 12 March 2002 (T9/28) seeking payment of his newstart allowance in his absence and advising that he was visiting his wife who was acutely ill.  He wrote that he would return to Sydney as soon as she recovered from her illness.  That letter did not contain a return address and Mr Haque told the SSAT that this was an oversight.

13.          Mr Haque told me that his wife was in hospital in March 2002 because of depression and that he arrived in Bangladesh on the day she was discharged. He told the SSAT that his wife wanted him to stay with her and he did so.  Because he himself has medical qualifications there was no independent medical advice as to the necessity for him to stay.

14.          The reason he stayed in Bangladesh beyond the time of his wife’s hospitalisation was not to ensure that she became pregnant.  This does not appear to accord with the information in his application for review dated 31 December 2002 which details as follows (T25):

“The letter she received recently [in relation to her visa application] with a condition

that whether she had any child of her own or not and the condition of her got more

worse when she knew she would be passing her child bearing age very soon.

Therefore to spent sometime by her was an emergency if it was considered from its

ethical point of view.”

15.          He told me his wife is 34 years of age, which is “old” and she was concerned about having children, but this was not the only reason for her depression.  (She apparently fell pregnant soon after he arrived there, because in November 2002 she was said to be in her final trimester – T22.)

16.          The evidence of Centrelink's computer records show that Mr Haque twice (on 27 February 2002 and 1 March 2002 – T6)  made contact shortly before leaving Australia on 18 March 2002 to travel to Bangladesh.  (An interview had been arranged for 18 March 2002 but Mr Haque did not attend - T8).  Those records indicate that he discussed payment of newstart allowance while he was overseas visiting his sick wife.  However he did not notify Centrelink of his departure date prior to leaving Australia or of an address where he can be contacted while outside Australia.

17.          Centrelink appears to have become aware in late March 2002 that Mr Haque had left Australia through a data match with the Department of Immigration departure records and was therefore aware that Mr Haque had left Australia at the time it notified him on 10 April 2002 that his newstart allowance had been cancelled because his fortnightly form had not been lodged.  Centrelink was obliged to notify Mr Haque of the cancellation and sent that notice to his last known address in Australia. 

18.          When Mr Haque failed to lodge an application for payment for the fortnight ending 27 March 2002 his newstart allowance was cancelled with effect from 13 March 2002.  Therefore at the time he left Australia on 18 March 2002 his newstart allowance was not portable because, at that time he was not in receipt of a social security payment (section 1213 of the Social Security Act 1991 (“the Act”)).  Although he advised of his trip to Bangladesh, on his evidence, firstly in person and later, through the letter dated 21 March 2002 (although not received by Centrelink until 3 April 2002 – T9), insufficient information was provided for a portability decision to be made, he, at that time, having advised only that his wife had “acute illnesses”.

19.          Mr Haque assumed his newstart allowance payments were being paid (into his Australian bank account) during his absence.  He told me he did not check his bank account while he was away.  Mr Haque told me he only became aware that his newstart allowance had been cancelled when he returned to Australia on 11 November 2002, as there was no means of checking his bank account from Bangladesh.  He supported himself during that period by borrowing money from friends and relatives.  It was not until after Mr Haque returned to Australia on 11 November 2003 that he discovered that payments had not been made.

20. Under the portability provisions of the Act some social security payments may be paid during a person's absence from Australia. Section 1217 of the Act explains that a person can receive newstart allowance for a period of up to 26 weeks during a temporary absence from Australia, relevantly, to attend to an acute family crisis. “Acute family crisis” is defined in Section 1212A of the Act to include an absence for the purpose of visiting a family member who is critically ill or who is hospitalised with a serious illness.

21.          The ARO accepted that Mr Haque's absence was due to acute family crisis and that his newstart allowance would, therefore, have been portable from 18 March 2002.  However, the period for which payment during absence from Australia could be made would have ended on 19 March 2003, when Mrs Haque was discharged from hospital.  I do not agree with the SSAT that it is more likely that the acute family crisis may have extended beyond that date.  Mrs Haque was no longer hospitalised, and I do not consider her “depression”, as described by her treating doctor, to be a “critical illness”.  I have come to this view notwithstanding that Mr Haque, in his application for review dated 31 December 2002 described the situation as “an emergency” and that his wife was “bedridden” (T25).

22. I agree with the view expressed by the SSAT however in relation to a difficulty for Mr Haque, which was pointed out by the ARO. The newstart allowance was cancelled with effect from 13 March 2002 and this was a valid cancellation under section 95 of the Social Security (Administration) Act 1999 (“the Administration Act”), which effectively says that if a person does not lodge an application for continuation of newstart allowance in respect of a period, the person's newstart allowance is cancelled with effect from the first day in the period. Mr Haque was notified of the decision, in accordance with the requirements of section 237 of the Administration Act, by notice sent by prepaid post to the postal address last known to Centrelink, on 10 April 2002.

23. Mr Haque did not seek a review of that decision until 11 November 2002. Section 109(2) of the Administration Act provides for the date of effect of a favourable decision to be the date of the application for review. Thus, the date of effect of a successful appeal by Mr Haque would be 11 November 2002, which is the date from which, in any event, his newstart allowance was restored. He cannot be paid from an earlier date.

24.          I therefore agree with the decisions to cancel Mr Haque's newstart allowance and to refuse the payment of arrears.

BREACH DECISION

BACKGROUND

25.          On 19 December 2002 Mr Haque signed a Preparing for Work Agreement.  One of the agreed activities was that every Monday and Wednesday for two hours he would attend his job network provider, MTC Work Solutions (“MTC”) - ST7/15.  MTC is said to have informed Centrelink that Mr Haque had breached his agreement by failing to attend on 24 February 2003 and 26 February 2003.  Another report by MTC apparently advised that Mr Haque had failed to attend on 3 March 2003.  On about 10 March 2003 Centrelink decided that a rate reduction period applied to Mr Haque from 10 March 2003 to 5 September 2003 and the amount of the rate reduction was 24%.

26.          Mr Haque sought review of that decision.  On 1 August 2003 Centrelink informed Mr Haque that it had decided that the decision was correct.  On 10 September 2003 the ARO decided that because the alleged breaches were made very close together in time, he decided to treat them as a single breach.  Accordingly, he decided that Mr Haque had incurred one activity test breach only.  As Mr Haque had had no previous breaches in the preceding two years, he was subject to a rate reduction period for 26 weeks and that the rate reduction was 18%.

27.          The SSAT affirmed the ARO’s decision.

ISSUE BEFORE THE TRIBUNAL

28.          I needed to consider the following:

Whether an activity test breach penalty of an 18% rate reduction of Mr Haque’s
newstart allowance from 10 March 2003 to 4 September 2003 (ie for 26 weeks)
was correctly applied.  This in turn depends on whether he failed to satisfy the
newstart activity test by failing to meet the terms of his activity agreement.

CONSIDERATION OF EVIDENCE AND FINDINGS

29. Under sections 604 and 605 of the Act, a person who is in receipt of newstart allowance may be required to enter a Newstart Activity Agreement. A Preparing for Work Agreement (“agreement”) is one such agreement. Newstart allowance is not payable if there is a failure to comply with the terms of an agreement (section 626(1)).

30.          Mr Haque agreed that he signed an agreement that required, inter alia, his attendance at MTC bi-weekly.  He said that he had always attended every Monday and Wednesday as required.  He told the SSAT that on one occasion he was late so he rang his case manager, Maggie Sherriff, and she told him that that was all right.  He told me that on two occasions he was ill when he was due to attend and when he telephoned Ms Sherriff she said it was “not a problem”.  He thought he subsequently produced medical certificates for these days but was not sure.  He could not remember if he was ill in the latter part of February 2003.

31.          Mr Haque told the SSAT that he had never had a complaint from Ms Sherriff about failing to attend, nor did she ever call him in and point out to him that he must attend on every Wednesday and Monday in the future. He acknowledged that he may not have attended on every day required but if he did not do so he usually notified Ms Sherriff or provided a medical certificate.  He told the SSAT that there may have been a few occasions on which he did not notify that he was not going to attend.  He told me that he relied on Ms Sherriff having said that it was not a problem.

32.          Mr Haque told the SSAT that he was told that Centrelink would give him a warning before applying any breach penalty and that he received no warning and he was just advised that a rate reduction period applied to him.  I observe, however, that there is no statutory requirement on Centrelink to give notice prior to applying a breach reduction. 

33.          He said that he contacted Ms Sherriff about the breach and she denied that she had made any adverse report to Centrelink about him.

34.          Centrelink’s records indicate that MTC made reports to Centrelink that Mr Haque failed to comply with the attendance requirement of his agreement.  However the evidence which is available to me is in relation to 26 February 2003 only, as MTC’s records have apparently been destroyed.

35. Section 601(4) of the Act explains that there is no breach it the person is taking reasonable steps to comply with the terms of an agreement.

36. Section 601(6) of the Act explains that a person takes reasonable steps to comply with the terms of an agreement if the main reason for failing to comply involved a matter that was not within the person's control, or the circumstances that prevented the person from complying were not reasonably foreseeable. Ms Sherriff, in her letter to Centrelink dated 18 February 2004 recounted that her recollection was that Mr Haque changed location a lot and this was “part of his reasoning for not attending as per his Activity Agreement”. (“Attachment A to Respondent’s Statement of Facts and Contentions”)

37.          I am persuaded by the logic applied by the ARO: if Ms Sherriff excused Mr Haque’s failure to attend, as he contends, it is unlikely that she would have proceeded to inform Centrelink of a breach.

38.          By his failure to attend MTC on 26 February 2003 Mr Haque failed to comply with a term of his agreement.  Having regard to all of the available evidence I am unable to conclude that the main reason Mr Haque failed to comply was beyond his control or that unforeseen circumstances prevented him from complying with the term.  Accordingly, Mr Haque must be taken to have not made reasonable steps to comply with the terms of his agreement.

39.          In view of my observations above, namely that the evidence is in relation to one breach only, and accepting that this single activity test breach was Mr Haque's first in the 2 years immediately before the day after the failure, I find the activity test breach rate reduction period which applies to him is 26 weeks (section 644AA).  Section 644AE(2) explains that if the activity test breach is the person's first in 2 years the rate of reduction is 18% and this is the penalty that applies to Mr Haque.

DECISION

40.          The decision that Mr Haque’s newstart allowance was correctly cancelled from 13 March 2002, that no arrears are payable during his absence from Australia from 18 March 2002 is affirmed, as is the decision that the rate of his newstart allowance be reduced by 18% for 26 weeks.

I certify that the 40  preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Neil Glaser
  Associate

Date of Hearing  2 February 2005
Date of Decision  18 February 2005
Representative for the Applicant    Self-represented
Advocate for the Respondent         Susan Mantaring

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