Holmes-Preston and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3502

Holmes-Preston and Secretary, Department of Social Services (Social services second review) [2024] AATA 3502 (1 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5882 and 2023/5883
Re:Martin Holmes-Preston
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President I Hanger AM KC
Date:1 October 2024
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decisions under review in relation to 2023/5882 and 2023/5883.
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Deputy President I Hanger AM KC
Catchwords
SOCIAL SECURITY – where applicant’s Jobseeker payment automatically cancelled for failure to provide statements per section 68(2) of the Social Security (Administration) Act 1999 (Cth) – whether tribunal should exercise discretion to determine that automatic cancellation under section 95(1) the Social Security (Administration) Act 1999 (Cth) does not apply – whether ‘special circumstances’ exist and whether it is appropriate to exercise discretion – where applicant was also receiving Austudy payments – where course was not an approved course for Austudy purposes – where discretion exists to treat incorrect Austudy claim as if the applicant was qualified for another benefit and the tribunal believes it reasonable in the circumstances to do so – where applicant was not qualified for Jobseeker – decision affirmed
Legislation
Dauguet and Secretary, Department of Employment [2017] AATA 1554.
Gizycki and Secretary, Department of Social Services [2015] AATA 382.
Cases
Electronic Transactions Act 1999 (Cth).
Social Security Act 1991 (Cth).
Social Security (Administration) Act 1999 (Cth).
Secondary Materials
Social Security Guide.
Student Assistance (Education Institutions and Courses) Determination 2019.
REASONS FOR DECISION
Deputy President I Hanger AM KC
1 October 2024
1.There are two matters being heard together relating to the Secretary’s decision to affirm a decision made by an Authorised Review Officer to cancel the applicant’s JobSeeker Payment (JSP) (2023/5882) and to reject a claim made for Austudy (2023/5883).

On 30 August 2022, the applicant was notified that his JSP had been cancelled from 2 of August 2022 because he had not reported.[1]
[1] T6.
On 30 December 2022, the applicant was notified that his claim for Austudy, lodged on 23 November 2022 was rejected on the basis that he was intending to or was currently undertaking an unapproved Masters level of study.
The issues in these proceedings are whether the applicant’s JSP was correctly cancelled from 2 August 2022; and whether the applicant was entitled to Austudy from 23 November 2022.
BACKGROUND
The applicant received Youth Allowance for the period 5 March 2018 to 30 October 2020 with various periods of suspension and cancellation.[2]
[2] T22, p. 154
The applicant received JSP for the period 31 October 2020 to 19 November 2021 with various periods of suspension and cancellation.[3]
[3] T22, p. 154
On 7 December 2021, the applicant travelled overseas and on the same date, Services Australia (Agency) suspended his JSP pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) (Cth) as the payment was not payable pursuant to section 1217 of the Social Security Act 1991 (Cth) (the Act) because it was not an approved temporary absence.[4]
[4] See 7.1.2.20 of the Social Security Guide
On 20 December 2021, the Agency cancelled the Applicant’s JSP from 20 November 2021 pursuant to section 95(1) of the Administration Act because the applicant had not met his reporting requirements pursuant to a notice issued under section 68(2) of the Administration Act.
The applicant returned to Australia on 30 December 2021, and on 1 March 2022, he lodged a further claim for JSP which was rejected on the basis that he failed to provide requested documentation. On 31 March 2022, he lodged a further claim which was granted from that date.
On 13 July 2022, an Authorised Review Officer decided that JSP should be granted to the applicant from 1 March 2022.
The Applicant then applied to the tribunal seeking arrears for the period 30 December 21 to 28 February 2022 which he was ultimately paid.
On 2 August 2022, the Agency decided that the applicant would be paid JSP from 1 March 2022.[5]
[5] T4.
On 2 August 2022, the Applicant was issued with a Reporting Statement pursuant to section 68(2) of the Administration Act.[6] That notice required the Applicant to report his employment income and other changes in circumstances every two weeks on specified dates. In particular, for the reporting period 2 August 2022 to 15 August 2022, the applicant was required to report on 15 August 2022. That notice contained the following statement:
‘What happens if you do not report on time for each reporting period
If you do not provide these details by 5 PM on the reporting date your Job Seeker Payment may be delayed or cancelled’.
[6] T5.
The case for the respondent is that the applicant did not report for the reporting period 2 August 2022 to 15 August 2022 as required and on 30 August 2022, the Agency decided to cancel the Applicant’s JSP from 2 August 2022 pursuant to section 95(1) of the Administration Act and advised the applicant of that.[7]
[7] T6.
On 23 November 2022, the applicant contacted the Agency to apply for internal review of the JSP cancellation decision.[8]
[8] T7.
On the same day the Applicant lodged a claim for Austudy.[9] In the claim form, the applicant stated that he was planning to study a Master of Applied Data Analytics commencing full-time study on 20 February 2023 and with an expected course end date of 12 December 2023. He was accepted into that course by Australian National University (ANU).[10]
[9] T8.
[10] T9.
On 30 December 2022, the Agency rejected the Applicant’s claim for Austudy on the basis that he was intending to undertake an unapproved Masters level of studies.[11]
[11] T11.
On 20 March 2023, an authorised Review Officer affirmed the JSP cancellation decision[12].
[12] T13.
On 29 April 2023, the Applicant applied to the AAT for review of the decision of 20 March 2023.[13]
[13] T14.
On 5 May 2023, the Applicant contacted the Agency to apply for internal review of the Austudy rejection decision[14]. That application was more than 13 weeks after the applicant had been given notice of the Austudy rejection decision.
[14] T16.
On 13 June 2023, an Authorised Review Officer affirmed the Austudy rejection decision.[15] The applicant applied to the AAT for review of that decision.
[15] T18.
On 25 July 2023, the AAT affirmed the Austudy decision.[16]
[16] T2.
On 3 August 2023, the applicant applied to the tribunal for a review of that decision.[17]
[17] T1.
JOB SEEKER PAYMENT CANCELLATION
The notice given to the applicant was given on 2 August 2022 and required him to report his employment income and other changes to his circumstances on 15 August 2022. He did not do so. The respondent submits that the notice given to the applicant was a valid notice pursuant to the provisions of section 68(2) of the Administration Act and that the applicant was warned about the consequences of non-compliance with that notice if he failed to report as required on 15 August 2022. Hence his JSP was cancelled on 30 August 2022 as from 2 August 2022 pursuant to section 95(1) of the Administration Act.
There appears to be some suggestion in an earlier finding that the notices were posted to the applicant, but no evidence was led before me to that effect. The respondent submits that the applicant is deemed to have received the Reporting Statement dated 2 August 2022 because he had consented to receiving notices via his myGov Inbox having subscribed to it in 2018.[18]
[18]T2, p. 57.
The applicant relied on a statement made on 27 July 2022.
The applicant relies on a generalised complaint which refers to a number of matters.[19] In so far as the present matter is concerned, he complains about a belief expressed in a telephone conversation that the matter had already been dealt with. That does not advance any submission relevant to the present issue.
[19]T14.
The applicant gave evidence that he advised Centrelink on 27 July 2022 that he had no income. However, in cross examination he says that he had a hearing in the tribunal on some matter and that hearing satisfied his reporting obligations to Services Australia. He said that Services Australia would know he had no income because of what he had said to the tribunal. However, that hearing related to the cancellation of his JSP while he was out of Australia in December 2021. A hearing in July 2022 cannot have any effect on a notice given on 2 August 2022 requiring a report on 15 August 2022. The submission lacks merit.
He also submitted that decision made on 20 March 2023 by the ARO to affirm the cancellation of the JSP should not have been made in circumstances where the Social Security and Child Support Division reinstated his JSP from 30 December 2021 on 21 November 2022.[20] There is no reason that should be the case.
[20] T15.
The applicant claimed that he did not receive the notice of 2nd of August 2022 because he had not checked his myGov account. Nevertheless, he agrees the notices were in fact in the myGov account. The undisputed evidence is that he had subscribed to receiving notices from myGov and that notices were issued to him electronically on 2nd of August 2022 as asserted by the respondent. The applicant is deemed to have received those notices by virtue of subsection 14A (1) of the Electronic Transactions Act 1999 (Cth) which provides:
14A Time of receipt
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
[Emphasis added]
I am satisfied that a valid notice was given to him on 2 August 2022 via his myGov site and that the applicant is deemed to have received the notice because he designated myGov as the electronic address to receive electronic communication when he subscribed to myGov inbox on 5 March 2018. The applicant failed to comply with the notice duly given pursuant to section 68(2) of the Administration Act to require the applicant to report his income before 15 August 2022. As a matter of law, the applicant’s JSP is automatically cancelled pursuant to section 95(1) of the Administration Act.
Are there special circumstances and should the Tribunal exercise its discretion?
Section 95(2) of the Administration Act enables the secretary (and the Tribunal standing in his shoes) to determine that in the special circumstances of the case, there should not be such an automatic cancellation. There have been numerous decisions on what constitutes special circumstances and it is well-established that:
[20] In construing s 95(2) of the Administration Act, assistance can be derived from authorities concerning analogous provisions such as those cited below, although ultimately the provision must be construed according to its own terms. In my view, s 95(2) involves a two-stage decision-making process. It is first necessary to determine whether the circumstances in question constitute “special circumstances” within the terms of the provision. If so, it is then necessary to consider whether the discretion conferred by that provision should be exercised, so as to determine that s 95(1) does not apply to the social security recipient in question (see Secretary, Department of Family and Community Services v Sammut [1999] FCA 1735; (1999) 58 ALD 691 at [21] per Branson J and Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at [19] per French J).
[21] The “concept of special circumstances is broad [and] [a] constellation of factors, including financial circumstances, may fall within it” (Secretary, Department of Social Security v Hales [1997] FCA 1565; (1998) 82 FCR 154 at 162 per French J). The question of whether circumstances are “special circumstances” is to be determined according to the particular facts of any given case (Trimboli v Secretary, Department of Social Security (1989) 17 ALD 201 at 209 per Hill J; Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; (2006) 91 ALD 103 at [35] per French J; see Beadle v Director-General of Social Security [1984] AATA 176; (1985) 7 ALD 670 at 674 (Full Court); Woodward and Beaumont JJ agreeing).
[22] In Beadle at 674, the Full Court said that “[t]he phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss”. The word “special” in the context in which it is employed in s 95(2) of the Administration Act “is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened” (Boscolo at [18] per French J). For there to be “special circumstances”, the case must involve something unusual or different (ibid; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545 per Kiefel J), but it need not be an extremely unusual, uncommon or exceptional case (Boscolo at [18], citing Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32).
[23] Special circumstances will exist where the cancellation of a social security payment by operation of s 95(1) is unfair or inappropriate or has unintended consequences (Groth at 545; Haidar v Secretary, Department of Social Security [1998] FCA 994; (1998) 52 ALD 255 at 264 per Hill J, citing Beadle at 673-674). In my view, s 95(2) of the Administration Act is an ameliorative provision which allows for the harshness of the automatic cancellation of a social security payment by operation of s 95(1) to be alleviated in appropriate cases involving special circumstances (see Haidar at 263-264 and Kirkbright v Secretary, Department of Family and Community Services [2000] FCA 1876; (2000) 106 FCR 281 at [22] per Mansfield J).
[24] In accordance with general principles, the broad discretion granted under s 95(2) of the Administration Act is to be exercised bona fide and for the purposes for which it is conferred as discerned by reference to the policy and purpose of the Administration Act, which forms part of the social security law (see Trimboli at 209 per Hill J and Beadle at 674).
[25] In any event, as will be apparent from the principles set out above, each case turns on its own facts, which are to be considered holistically.[21]
[Emphasis added]
[21] Gizycki and Secretary, Department of Social Services [2015] AATA 382 at [20]-[25].
The applicant said that he was “going through a breakup with my girlfriend and I would put it that in that period I had undiagnosed mental health concerns”. He gave no particularity to this and produced no expert evidence to that effect. He did tender a medical certificate dated 4 October 2023 saying that he was unfit for work until 20 October 2023 suffering from a “medical condition”. This medical certificate has nothing to do with the August 2022 Cancellation.
In his evidence before me, the applicant said that he was admitted to hospital in 2023 for an unspecified illness[22] but no medical evidence (perhaps other than the certificate referred to above) was provided to suggest that he was unable to respond to the section 68(2) notice given to him in August 2022 because of a medical condition or because he was otherwise incapacitated. Further, the filing of applications and submissions in relation to the applicant’s appeal of the decision to affirm the decision to cancel the applicant’s JSP from 7 December 2021 do not suggest that he was affected by any illness in August 2022.
[22] Transcript p. 13.
In his evidence, the applicant said that he had given a statement of income on 27 July 2022, before the section 68(2) notice was received. He said that the respondent knew that he was working pro bono time full-time so that he did not have employment income and that these matters, in the alterative to the applicant’s 95(1) contentions, constituted “special circumstances” under section 95(2) of the Administration Act.[23] However, it would appear that the statement he had given about his income did not relate to the period of time beginning 2^nd of August.
[23] Transcript p. 8
I am satisfied that there is no special circumstance that would justify the secretary to exercise his power under section 95(2) of the Administration Act. In circumstances where parliament has imposed reporting obligations on social security recipients and intended that ones benefits be cancelled if those obligations are not met, the discretion under section 95(2) of the Administration Act should not be exercised where the cancellation of the applicant’s JSP occurred simply because the applicant did not report his income in the stipulated timeframe.[24]
[24] See generally Gizycki and Secretary, Department of Social Services [2015] AATA 382; Dauguet and Secretary, Department of Employment [2017] AATA 1554, [33].
The decision under review is affirmed in relation to 2023/5882.
AUSTUDY REJECTION
Part 2.11A of the Act sets out the qualification requirements for Austudy. It provides inter alia:
·‘Subject to this Subdivision, a person is qualified for an Austudy payment in respect of a period if throughout the period… the person satisfies the activity test[25];
·Subsection 569(2) of the Act provides that a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is “undertaking qualifying study”;
·Subsection 569A(b) of the Act provides that a person is undertaking qualifying study if among other things the course in which the person is enrolled or intends to enrol is an “approved course of education or study”;
·Section 569B of the Act provides that for the purposes of section 569 A (b), a course is an approved course of educational study if it is a course determined under section 5D of the Student Assistance Act 1973(Cth), to be a secondary course or a tertiary course for the purposes of that act.
[25] Section 568 of the Act.
The Social Security Guide at 3.3.4.10 provides that Masters courses that are not specified in Schedule 3 of the Student Assistance (Education Institutions and Courses) Determination 2019 are not approved courses for Austudy purposes.
The Masters of Applied Data Analytics at ANU that the applicant enrolled in was not an approved course and that does not appear to be disputed by the applicant.[26]
[26] T2, p. 13, [24].
The applicant has sought to argue that his claim for a study should be treated as a claim for JSP.
Section 15 of the Administration Act provides as follows:
15 Deemed claim—incorrect or inappropriate claims
(1) For the purposes of the social security law, if:
(a) a person makes an incorrect claim; and
(b) the person subsequently makes a claim for a social security payment for which the person is qualified; and
(c) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.
(2) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a social security payment, other than a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.

The applicant has not shown that at the time of his unsuccessful Austudy claim in November 2022, he was qualified for jobseeker payment and therefore the provisions of section 15 of the Administration Act do not apply.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decisions under review in relation to 2023/5882 and 2023/5883.

45. I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger AM KC.

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Associate
Dated: 1 October 2024

Date of hearing:

27 July 2024

Applicant: By video

Solicitors for the Respondent:
Ms Jasmine Forsyth

Moray & Agenew