Hojbota and Secretary, Department of Social Services (Social services second review)
[2019] AATA 3206
•30 August 2019
Hojbota and Secretary, Department of Social Services (Social services second review) [2019] AATA 3206 (30 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0950
Re:Lenuta-Elvira Hojbota
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Number(s): 2018/0954
Re:Sababu Kaitilla
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:30 August 2019
Place:Brisbane
The decisions under review are affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
Catchwords
SOCIAL SECURITY – Disability Support Pension – portability – where Respondent had ceased payment of Disability Support Pension to First Applicant and Carer Payment and Allowance to Second Applicant as they exceeded the maximum portability period as prescribed – whether cessation of payments by the Respondent was correct – whether Applicants had an ‘accrued’ right to extended portability pursuant to the Agreement between Australia and the Republic of Austria on Social Security as amended by the Social Security (International Agreements) Amendment (Republic of Australia) Regulation 2016 - decisions under review affirmed.
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 (Cth)Social Security Act 1991 (Cth)
Cases
Kristoffersen and Secretary, Department of Social Services [2015] AATA 806
Noakes and Secretary, Department of Social Services [2018] AATA
Scott and Another v Secretary, Department of Social Security [2000] FCA 1241; 65 ALD 79Secretary, Department of Social Services and Field [2015] AATA 903
Secondary Materials
Department of Social Services, Guide to Social Security
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 August 2019
THE DECISIONS UNDER REVIEW
There are two decisions presently before the Tribunal for review. The first is the decision of the Social Services and Child Support Division of this Tribunal[1] made on 9 February 2018, affirming the decision to suspend payment of disability support pension (“DSP”) to the First Applicant on 18 August 2017. This disallowance arose as a result of the recipient (“the First Applicant”) exceeding her allowable portability period of four weeks. The second is the decision of the SSCSD, (also dated 9 February 2019) to suspend payment of carer payment and carer allowance to the Second Applicant on 1 September 2017 as a result of that recipient (“the Second Applicant”) exceeding his allowable portability period of six weeks.
[1]“SSCSD”. For the purposes of these Reasons, SSCSD is also referred to as “AAT1”.
JURISDICTION
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides that the Tribunal may review certain decisions where:
“(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The instant application for review devolves to the presently constituted Tribunal by virtue of s 179 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Section 179(1) facilitates an application to this Tribunal provided one of the preconditions in s 179(2) is met. Prima facie, the Applicants seek review of the AAT1’s decision dated 9 February 2018. One of the preconditions appearing in s 179(2) of the Administration Act stipulates that:
“For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) If an AAT first review affirms a decision – that decision as affirmed;
…”
The AAT1, via its decision on 9 February 2018, affirmed the decision(s) under review. Therefore, the presently constituted Tribunal has jurisdiction to hear and determine the instant application.
WHAT CAN BE REVIEWED?
There is disagreement between the parties about the determinative scope of the instant application. The Respondent contends, in my view correctly, that for the purposes of the First Applicant, the decisional purview of this Tribunal is limited to a determination of whether the decision to suspend payment of DSP to the First Applicant on 18 August was correct.
The Applicants contend that the presently constituted Tribunal should extend its determinative scope to:
(1) A retrospective determination that the First Applicant was, pursuant to s 1218AAA of the Social Security Act 1991 (Cth) (“the Act”), “severely impaired”, such as to cause the First Applicant’s entitlement to DSP to be positively affected by unlimited portability under the domestic laws of this country; and
(2) A determination of whether both Applicants should be regarded as having accrued certain beneficial rights (being an extended period of portability) from the terms of the Agreement between Australia and the Republic of Austria on Social Security (“Agreement”) appearing in Schedule 10 of the Social Security (International Agreements) Act1999 (Cth) (“International Agreements Act”), notwithstanding the amendment to such Agreement through the Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 (“the International Agreement Regulation”).
The factual sequence up to and including the filing of the instant application under review, is neatly summarised in the exhibited material.[2] Each identified step is a matter of factual reality, each of which is capable of verification via the material and in respect of which I do not recall the Applicants taking any issue.
[2] See Exhibit R7, Secretary’s Statement of Facts and Contentions, dated 13 June 2018, as amended 5 November 2018, pages 2-3, paragraphs [3] – [18].
PORTABILITY – DO ANY OF THE EXCEPTIONS APPLY?
Portability of an entitlement such as DSP essentially means what it says: it allows a recipient to continue to receive that payment throughout that recipient’s period of absence from Australia. Obviously, such payments cannot be open-ended and the Act contains strict requirements and thresholds governing payment of such entitlements while a recipient is abroad.
The basic right of portability of a DSP recipient appears in s 1213 of the Act. For the portability provisions to be activated there must be a recipient in receipt of a “social security payment”. For present purposes, the DSP does constitute a “social security payment”. As I have mentioned elsewhere,[3] it is necessary to first grasp three additional and basic concepts in relation to the portability issue. They are:
(a)maximum portability period: it comprises a “total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension.”[4]
(b)allowable absence: is one that “does not… cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28 [days]”.[5]
(c)portability period: the maximum allowable portability period is four (4) weeks.[6] Where a person’s maximum portability period is not for an unlimited period, the portability period:
(i)begins at the commencement of the period of absence; and
(ii)ends at the earlier of:
· the first time during the period of absence at which the absence is not an allowable absence in relation to the payment; or
· the end of the period that is the person’s maximum portability period for the payment.[7]
[3] Noakes and Secretary, Department of Social Services [2018] AATA 1457, paragraphs [26] – [27].
[4] Section 1217 of the Act, Column 5: For DSP column item.
[5] Section 1217(2)(b)(ii) of the Act.
[6] Section 1217, Row 2AA of the Act.
[7] Section 1217(4)(b)(i) and (ii) of the Act.
In the present facts, both Applicants departed Australia on 21 July 2017. It is clear that the First Applicant exceeded her maximum portability period on 18 August 2017. Accordingly, the Respondent ceased DSP payments to her in accordance with its obligations under s 80 of the Administration Act. The Second Applicant exceeded his portability period on 1 September 2017. Once again, the Respondent correctly ceased payment of carer payment and carer allowance to the Second Applicant, in accordance with its obligations under s 80 of the Administration Act.
The Applicants now seek a determination, pursuant to s 1218AAA of the Act, that the First Applicant’s maximum portability period was an unlimited period from the date she became qualified for DSP in November 2013. In strictly legal terms, the Applicants seek a determination of whether the First Applicant falls within the exceptions to the basic portability provisions of the Act. The principally propounded exception appears at Division 2, sub-division B of the Act. Specifically, s 1218AAA permits the Respondent to make a determination that a DSP recipient is entitled to unlimited portability if all of the following circumstances exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) within the next 5 years.
As I have also noted previously,[8] any assessment of whether a DSP recipient meets all of the above components of the exception is, by definition, a considered and methodical process. That assessment cannot be arbitrary or “automatic”.[9] The process is described in the departmental “Guide to Social Security”[10], which initially directs the Respondent to consider the abovementioned four factors in s 1218AAA(1), and to then have regard to the opinion of a Job Capacity Assessor (“JCA”). The Guide then directs the Respondent to determine – by having regard to the JCA’s indications (based on the evidence) and the JCA’s professional opinion – whether it is unlikely that the DSP recipient will have any capacity to undertake work in the open employment market at or above the relevant minimum wage in the next five years, even with interventions.
[8] Noakes and Secretary, Department of Social Services [2018] AATA 1457, paragraph [35].
[9] See Kristoffersen and Secretary, Department of Social Services [2015] AATA 806 per Senior Member McCabe (as he then was, now Deputy President McCabe), paragraph [17].
[10] See instruction 7.1.2.20 Application of Portability Rules (Portability Table) (“the Guide”).
Thus, the considered and methodical process for obtaining unlimited portability involves:
(a)an application or request for unlimited portability must be made;
(b)a JCA must provide the professional opinion described in the Guide; and
(c)a determination by the Respondent must follow.
The contentions of the Applicants propounding a favourable application of s 1218AAA of the Act are neatly summarized in the material[11] and do not require further extrapolation. Section 1218AAA does not have, and cannot have, application to the instant facts. In particular:
·there has never been an application or request for the making of a determination under s 1218AAA of the Act for unlimited portability;
·it is clear from both existing authority and from the scheme of the governing legislation that any decision or determination about unlimited portability must be made prior to the DSP recipient’s departure from Australia. No such determination was made prior to the First Applicant’s departure from Australia and the subsequent suspension of her DSP;
·accordingly, there is no reviewable decision dealing with a determination (neither by AAT1 or any other decision-making entity) pursuant to s 1218AAA of the Act presently before the Tribunal. It follows that any consideration of s 1218AAA of the Act is outside the jurisdictional purview of this Tribunal;
·it is not possible for the presently constituted Tribunal to, somehow, retrospectively make a determination about unlimited portability pursuant to s 1218AAA of the Act. It is not something that occurs automatically as a result of the mere existence of the present application. The above-mentioned process must be followed and a decision must be made about whether the requirements of that process have or have not been met. No such determination exists here.
[11] See Exhibit R4, Secretary’s Supplementary Statement of Facts and Contentions, paragraphs [10] and [11], pages 3-4.
DO ANY OF THE OTHER EXCEPTIONS APPLY?
The relevant table appearing in s 1217 of the Act[12] provides specific exceptions to the mandated period of maximum portability in circumstances where a recipient exceeds that period due to: (a) having to seek eligible medical treatment, (b) having to attend an acute family crisis, or (c) a humanitarian purpose. As best as I understood and recall the material, neither of the Applicants contend that their respective absences beyond the maximum allowable period of portability were attributable to any of these three factors.
[12] See s 1217(1)(a) and (b) of the Act – the table, specifically, columns 2,3 and 4.
Section 1218C of the Act provides for an extension of a person’s DSP portability in 11 specifically defined circumstances. Again, I do not recall a contention that any one or more of those 11 circumstances applied to either or both of the Applicants. Plainly, none of them do so.
THE INTERNATIONAL AGREEMENT ACT AND ITS SUBSEQUENT AMENDMENT BY THE INTERNATIONAL AGREEMENT REGULATION: HAVE THE APPLICANTS ACCRUED ANY BENEFITS FROM ITS TERMS?
This issue involves an inquiry into whether the Applicants can be found to have accrued any beneficial rights from the Agreement appearing in Schedule 10 of the International Agreement Act. The submission from the Applicants is that, if one has regard to the terms of the Agreement – in its pre-1 March 2017 guise – which allowed payments to be received for a period of up to 13 weeks, then the respective entitlements payable to both Applicants would have still been payable under domestic law by operation of the Agreement (in its then form).
In relation to whether any ‘accrued’ right exists, Article 5(7) of the new Agreement appearing in the International Agreement Regulation stipulates that:
“Notwithstanding anything else in this Article, Australian disability support pension shall not be payable for longer than the period specified in the social security legislation of Australia to a person who is not severely disabled while that person is outside Australia.”
There is a helpful explanatory statement to the International Agreement Regulation which is in the following terms:
“For Australia the Agreement will align the period for which payment of Disability Support Pension (DSP) for non-severely disabled persons is payable outside Australia (the ‘portability period’) to the period specified in the social security law which applies to all other DSP recipients. The current Agreement specifies that DSP for non-severely disabled persons may not be paid outside Australia for more than 13 weeks, which was the portability period for payment of DSP outside Australia under the social security law when the current Agreement was last amended. Since then the portability period under the social security law has been reduced to six weeks from 1 January 2013, and further to four weeks in any 12 month period from 1 January 2015. The Agreement will specify that DSP for non-severely disabled persons is not payable outside Australia for more than the period stated in the social security law, as was always intended.
This change does not relevantly limit the right to social security as it only affects payment while a person is outside Australia. There is no internationally accepted extraterritorial right to social security, particularly in relation to non-contributory social security schemes, like Australia’s...”
[my underlining and emphasis]
Thus, it can be seen that the new Agreement that appears in the International Agreement Regulation adopts the changes in the domestic law of Australia as they related to the reductions in the portability period applicable on and from 1 January 2013 and 1 January 2015, respectively. Further, as is clearly demonstrated by the below-mentioned table[13], the new Agreement took effect and replaced the old Agreement from 1 March 2017.
[13] As set out in Regulation 2 of the International Agreement Regulation.
“2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 5 and anything in this instrument not elsewhere covered by this table
The day after this instrument is registered.
10 May 2016
2. Schedule 1
A single day to be fixed by the Minister by notifiable instrument.
1 March 2017 (F2017N00013)
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.”
By letter dated 4 October 2016, the Applicants gave notification to a derivative entity of the Respondent (Centrelink) of their temporary absence from Australia during the period July – September 2017. The terms of the letter are as follows:
“…
Dear Sir/Madam,
Re: Temporary Absence from Australia for the Period 21st July 2017 to 15th Sept. 2017
…we [the Applicants] will be temporarily absence [sic] from Australia during the above period. We will be traveling [sic] to Vienna, Austria, as a signatory country, as per the Social Security (International Agreement) Act 1999.
In Vienna, we will be staying with [name redacted] and his wife [name redacted] at their residence [address of residence redacted], Austria. Should it be necessary for the Department to contact us, we kindly ask the Department to use this above address.
Please do not hesitate to contact us should you require further information or clarification in relation to this notification and application.
Yours faithfully
[signed by the Applicants].”[14]
[14] Exhibit R5, s37 T Documents, T8, page 85.
The Applicants placed great store in this letter because, according to their contentions, the letter activated specific components of the legislation that, somehow, caused them to be entitled to ‘accrued' beneficial rights from the terms of the Agreement appearing in the International Agreement Act – that is, as it stood prior to the amendments which came into effect on 1 March 2017, stipulating the reduced periods of maximum portability. They say:
“7. The international agreement between Australia and Austria for social security (the Agreement) was in-force when my partner and I contacted the Department to inform the Secretary of our intension [sic] to travel to Austria under the 13 weeks portability provisions applicable then.”
According to the Applicants, their letter of 4 October 2016 activates the provisions of s 7(2) of the Acts Interpretation Act 1901 (Cth) such that they are not governed by the amended (and shorter) maximum allowable periods of portability. Further, the Applicants contend that their letter of 4 October 2016 demonstrates that:
“3. The fact that we have written to the Secretary some ten months prior to our departure we had set in motion statutory machinery for obtaining a favourable decision which had been set in motion prior to the repeal or amendment. This right which is conditional upon a favourable non-discretionary decision being made is an accrued right. As a matter of natural justice or common sense, an obligation or requirement cannot be enforced on a date when a law was neither in existence nor in sight.”[15]
[15] Exhibit A1, Applicants’ Additional Material, page 1, paragraph [3].
The Applicants additionally contend that their letter of 4 October 2016 engaged specific provisions of the legislation such that they can now be regarded as having accrued rights under the Agreement in the International Agreement Act in its pre-1 March 2017 guise. They say:
·“1. On the 4th of October 2016 we contacted the Secretary to inform the Department in accordance with s13(4) of SSA Act (1999)...”[16]; and
·“27. We wish to base our arguments on retrospectivity of claims under s12 (transfers) and s15(4A) (back-dating) of SSAA on the basis of previous evidence-based and successful claims…”[17]; and
·“13. What this means is that this Tribunal must review the decision under review according to the law as it was on the date of the application for review. In particular, this means that, we the joint applicants, have the right to have the review by this Tribunal be considered on the basis of the law as enacted and operational as at the date when the Secretary was contacted in October 2016.”[18]
[16] Exhibit R5, s37 To Documents, T1, page 2.
[17] Ibid, T1, page 10.
[18] Exhibit A1, Applicants’ Additional Material, page 5, paragraph [13].
The Respondent says that the Applicants’ contentions that they have effectively acquired accrued rights (under the pre-1 March 2017 guise of the Agreement in the International Agreement Act) proceed on a fundamentally flawed promise. I agree. Sections 12, 13 and 15 of the Administration Act have nothing to do with maximum portability periods, or any exception(s) to any maximum portability period, or any extension(s) to any portability period. Those provisions relate to the treatment of actual claims for social security payments.
As noted by the Respondent, any notification appearing in the abovementioned letter from the Applicants dated 4 October 2016 was given at a time when the Applicants were already in receipt of social security payments under domestic law. The correspondence of 4 October 2016 did not, and could not possibly be construed to, relate to a claim for DSP (insofar as the First Applicant is concerned), nor a claim for carer payment and carer allowance (insofar as the Second Applicant is concerned). Viewed at its highest, the Applicants’ letter of 4 October 2016 goes no further than the Applicants properly meeting their obligations pursuant to s 68 of the Administration Act in terms of them notifying the Respondent (or its derivative entity, Centrelink) of a change in their circumstances.
Thus, the notification appearing in the subject letter did not compel the Respondent to make any determination about whether any social security payment or payments remained payable to either or both of the Applicants. The ambit of this determinative exercise by the Respondent (or its derivative entity, Centrelink) necessarily extends to a determination about whether either or both of the Applicants were entitled to any payment(s) pursuant to the International Agreement Act.
The only determinations made by the Respondent (or its derivative entity, Centrelink) involved the cessation of the DSP to the First Applicant on 18 August 2017 and the cessation of carer payment and carer allowance to the Second Applicant on 1 September 2017. Those determinations derive from the Applicants both exceeding their respective maximum portability periods. In these circumstances, none of the provisions of ss 12, 13 and 15 of the Administration Act are engaged and all of the contentions of the Applicants in this regard go nowhere.
DOES THE ACTS INTERPRETATION ACT APPLY?
The Applicants also agitate for a favourable application of ss 7 and 8 of the Acts Interpretation Act 1901 (Cth), and that, somehow, when those provisions are read in conjunction with their letter dated 4 October 2016, the Applicant’s somehow fall within the ambit of the pre-1 March 2017 guise of the Agreement appearing in the International Agreement Act. This contention is both misplaced and misconceived, and arises from a misunderstanding of the operation of those provisions of the Acts Interpretation Act.
Section 7 of the Acts Interpretations Act provides that:
“(2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
…
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part;…”
The Applicants have overlooked the operative effect of s 2(2) of the Acts Interpretation Act, which stipulates that:
“…the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.”
[my underlining]
Accordingly, the operative effect of provisions like ss 7 and 8 of the Acts Interpretation Act are subject to the expression of a contrary intention appearing in the “Act or a provision of…an Act” sought to be relied upon by the Applicants. The International Agreement Regulation contains a contrary intention[19]. The new Agreement contained in Schedule 10 to the International Agreement Regulation clearly intends to:
“…align the period for which payment of Disability Support Pension (DSP) for non-severely disabled persons is payable outside Australia (the ‘portability period’) to the period specified in the social security law which applies to all other DSP recipients.”
[19] See in particular, Article 5(7) of the Agreement appearing in Schedule 10 of the International Agreement Regulation.
As noted by the Respondent, Article 22 of the new Agreement stipulated in Schedule 10 of the International Agreement Regulation provides a number of transitional provisions, none of which apply to the First Applicant. Further, subsection 4 of Article 22 clearly demonstrates that from the date of commencement of the new Agreement (i.e. 1 March 2017), the receipt of benefits by the Applicants shall be governed by that amended instrument:
“4. Subject to this Agreement, when this Agreement comes into force, the previous Agreement shall terminate in accordance with Article 24 and persons who were receiving benefits by virtue of that Agreement shall receive those benefits by virtue of this Agreement.”
[my underlining]
Thus, the Applicants cannot demonstrate that they have accrued any rights under the Agreement in its pre-1 March 2017 guise. The receipt of their benefits, with specific reference to the issue of maximum portability, is governed by the amended instrument which came into legal force and effect on 1 March 2017. On this basis, the contention that they have ‘accrued’ rights under the old agreement must necessarily fail.
IS THERE A NOTIFICATION REQUIREMENT ON THE RESPONDENT?
The material discloses an apparent contention by the Applicants that the Respondent has somehow been either delinquent or negligent in not providing certain information to the First Applicant about her benefits. While the contention ultimately goes nowhere, the imputed gravity behind it warrants both inquiry and analysis. The Applicants say:
“4. Although Centrelink’s decisions about entitlement to a payment or service are made under the law as provided by s 8 of the SSA Act…Centrelink staff need to become fully conversant with s 8 of SSA in order for them to accurately explain and interpret, the range of products and services it offers to potential claimants. Otherwise what role do Centrelink staff have sitting in those offices?
…
6. A letter of 18/11/2013 advising Ms L.E. Hojbota of her successfully [sic] qualification for disability support pension (DSP) neither contained information about other service options available to her nor did Centrelink staff call her or ring her to explain the availability of other service options, such as unlimited portability under s 1218AAA which had been in operation just over 12 months. For instance, in accordance to s 237 of the SSA Act, when applicants are advised of the original decision if [sic] decision is wrong and what they need to do. Once such notice stipulates:
If you do not agree with this decision please contact us and we will explain it. We will reconsider your case and change the decision if appropriate…
A similar notice should be issued even where decisions are positive, outlining obligations and responsibilities associated with those claims.
7. This omission or oversight by the Secretary is a major setback that has impacted on Ms Hojbota’s right to apply for unlimited overseas portability under s1218AAA in a timely manner.”[20]
[20] Exhibit A4, Part B: Unlimited Portability, pages 2-3, paragraphs [4], [6] and [7].
In their ”Reasons for the Application”, the Applicants said:
“1. On the 4th of October 2016 we contacted the Secretary to inform the Department…of our intention to travel to Austria…from 21/07/2017 to 16/09/2017.
…
3. Having not received acknowledgement, let alone a reply to our letter, we sent a reminder on 5th April 2017. Still there was no reply, nor acknowledgement. We also visited our local Centrelink Office at 12 Stockyard Lane, Beenleigh, on a couple of occasions without much success.
4. We left Australia on 21/072017, and four weeks later DSP payments for my partner were suspended (18/08/2017) and six weeks after departure career’s [sic] payment and allowance were also suspended (01/09/2017)…”[21]
[21] Exhibit R5, S37 T Documents, T 1, pages 2-3, paragraphs [1], [3], and [4].
In their written submissions,[22] the Applicants cite unfavourable authority (for them) from this Tribunal but blithely dismiss it:
4. …The Applicant, Ms Hojbota, does not support the contention put forward by Mr Egon Fice, (Member) in Murphy and SDFHCSIA [2010] AATA 115 at para 9 that:
Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment. If a claimant believes Centrelink has made an incorrect decision regarding either a claim for a social security payment or the rate at which a payment is calculated, the claimant has a right to have that decision reviewed. However, it is essentially left to the claimant to make a claim for a social security payment.
This is wrong. We do not concur with this view and neither that of the Secretary in Filardo and SDFHCSIA ([2012] AATA 604, para 21). Centrelink staff need to become fully conversant with s.8 of SSA in order for them to properly explain and interpret, the range of products and services it offers to potential claimants. Otherwise what role does Centrelink staff have siting [sic] in those offices?[23]
[22] Exhibit A4, ‘Part B: Unlimited Portability’.
[23] Ibid, page 2, paragraph [4].
The Applicants’ contention is misplaced. The weight of authority suggests there is no obligation on the Respondent (or its derivative entity, Centrelink) to inform a recipient of benefits about any potential entitlement or benefit available under the social security legislation. In Secretary, Department of Social Services and Field [2015] AATA 903, Deputy President Forgie of this Tribunal was discussing certain provisions appearing in the A New Tax System (Family Assistance) Act 1999 (Cth) and the Administration Act. The learned Deputy President noted:
‘There is nothing in either of them that expressly requires the Secretary, whether personally or through the services provided by DHS or Centrelink, to notify those who have claimed FTB [family tax benefit] in the past or who may do so in the future that there have been changes in the law. The same is true of the Family Assistance Act.’[24]
[24] Secretary, Department of Social Services and Field [2015] AATA 903, paragraph [24].
With particular reference to s 8 of the Administration Act, Deputy President Forgie noted:
‘… there is nothing in s.8(1) [of the Administration Act] that would oblige the Secretary to inform each recipient, or potential recipient, of benefits under the social security law of the law and changes in the law affecting any particular payment. That would not be an achievable outcome given the great variety of circumstances in which recipients, or potential recipients, find themselves. The Secretary is not to know whether recipients, or potential recipients, will wish to lodge a claim for FTB in any particular income year. She will not know their particular circumstances before they lodge any claim that they make. What the SAA Act [the Administration Act] does require under s 8(1)(i) is that, in establishing the systems and procedures required to administer social security law, the Secretary have regard to the desirability of there being ready availability of service and information relating to income support generally and to the social security payments that are available. There is no requirement that she give written information to recipients, or potential recipients under social security law.
[emphasis in original, my underlining]
Deputy President Forgie then turned to the question of whether there is a common law duty on the Respondent (or its derivative entity, Centrelink) to provide information to recipients about their benefits. The learned Deputy President resolved this issue in the negative by reference to the Federal Court decision in Scott and Another v Secretary, Department of Social Security[25] which is authority for the proposition that there is:
‘[20]… no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.
…
[23] …it is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.’[26]
[25] [2000] FCA 1241; (2000) 65 ALD 79.
[26] Secretary, Department of Social Services and Field [2015] AATA 903, paragraph [24] quoting Scott and another v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79, paragraphs [20], [23] per Beaumont and French (as he then was) JJ.
There is thus no basis in the Applicants’ contention that the Respondent (via its derivative entity, Centrelink) is to be held accountable for any breach of a legislatively prescribed procedure or for any breach of a duty of care at common law arising from any aspect of the history of dealing between it and either or both of the Applicants.
Were the Applicants to continue feeling aggrieved as a result of any aspect of the Respondent’s (i.e. Centrelink’s) conduct, it may be that a more appropriate avenue for the Applicants would be under the Scheme for Compensation for Detriment caused by Defective Administration (“the CDDA Scheme”) established under the Public Governance, Performance and Accountability Act 2013 (Cth). In the context of these reasons, two things should be said about that. The Tribunal, as presently constituted, (1) has no jurisdiction to make such an award under the CDDA Scheme; and (2) makes no findings in these reasons as to the Applicants’ prospects of success in any application for such relief were it to be brought.
CONCLUSION
For the above-stated reasons, I find that:
(i)None of the exceptions apply to the circumstances of both Applicants to facilitate extension of their respective periods of maximum portability;
(ii)The Applicants have at no time ‘acquired’ any rights pursuant to the International Agreement Act and its subsequent amendment by the International Agreement Regulation and that the clear and unambiguous terms of the abovementioned Agreement appearing in Schedule 10 of that Regulation specifically militate against any such finding;
(iii)The Respondent (via its derivative entity, Centrelink) has not committed any breach of a legislatively defined procedure nor has it breached any common law duty of care in the course of its dealings with the Applicants;
(iv)When the Applicants exceeded their maximum portability periods on 18 August 2017 (First Applicant) and 1 September 2017 (Second Applicant), their respective social security payments ceased to be payable;
(v)The Respondent has correctly applied s 80 of the Administration Act and properly suspended the social security payments of both Applicants.
DECISION
I accordingly affirm the decision of the AAT 1 made on 9 February 2018 and presently under review.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.............................[SGD]...........................................
Associate
Dated: 30 August 2019
Date(s) of hearing: 5 November 2018 Applicants: In person Advocate for the Respondent: Mr Christopher Bishop (Solicitor) Solicitors for the Respondent: Mills Oakley Lawyers
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