Housego and Secretary, Department of Social Services (Social services second review)

[2018] AATA 172

Housego and Secretary, Department of Social Services (Social services second review) [2018] AATA 172 (13 February 2018)

Division:GENERAL DIVISION

File Number:           2017/2167

Re:Alena Housego

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member G Hallwood

Date:13 February 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Member G Hallwood

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Newstart allowance - whether Newstart allowance correctly cancelled - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 593

Social Security (Administration) Act 1999 (Cth), s 80

CASES

Re Conlay and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 621

SECONDARY MATERIALS

Halsbury’s Laws of Australia (4th Edition 29 August 2012) Vol 24, 385-580

REASONS FOR DECISION

Member G Hallwood

13 February 2018

1. This matter requires the Tribunal to determine whether the Respondent correctly cancelled the Applicant, Ms Alena Housego’s, Newstart Allowance, with effect from 4 June 2016.

2. Ms Housego seeks to review a decision of the Administrative Appeals Tribunal Social Services & Child Support Division (AAT1) made on 14 March 2017[1] affirming a decision of a Centrelink Authorised Review Officer (ARO) dated 4 November 2016.  The ARO affirmed the 12 July 2016 decision of Centrelink cancelling Ms Housego’s Newstart Allowance from 4 June 2016.

   [1] Exhibit R2, T2/7.

3. The original delegate and each of the subsequent decision-makers concluded that it was appropriate for Ms Housego’s Newstart Allowance to be cancelled in view of her request for cancellation of her Newstart Allowance made on 12 July 2016.

4. Ms Housego’s Newstart Allowance was subsequently reinstated from 6 September 2016.  Therefore, in practical terms the outcome Ms Housego seeks is payment of arrears of her Newstart Allowance between 12 July and 16 September 2016.

   THE LEGAL CONTEXT

5. Newstart Allowance is payable under the Social Security Act 1991 if a claimant, amongst other requirements: is unemployed, satisfies the activity test, and is prepared to enter into an Employment Pathway Plan and comply with its terms.[2]

   [2] Social Security Act 1991, s 593.

6. Section 80 of the Social Security (Administration) Act 1999 provides a general power to cancel or suspend payments where the Secretary is satisfied the person is not qualified or the payment is not payable to the person.  Payments such as Newstart Allowance have been found to be a private statutory right as AAT1 found in this case and as was identified in ReConlay and Secretary, Department of Education, Employment and Workplace Relations.[3]  Statutory rights can be waived by the holder of that right.[4]

   [3] Re Conlay and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 621.

   [4] Halsbury’s Laws of Australia [385-580].

   THE ISSUE

7. As will be apparent from the above, in effect the only factual issue for my consideration is whether Ms Housego did in fact request cancellation of her Newstart Allowance on 12 July 2016.

8. Although at the hearing Ms Housego sought to explain the background to her communications with Centrelink on and around 12 July 2016, as AAT1 explained, that background is not directly relevant to the question of whether it was appropriate to cancel her Newstart Allowance.  That is because, if she did request that her Newstart Allowance be cancelled, I agree with the previous decision-makers that it was legally open to and appropriate for the Secretary to cancel the allowance pursuant to that request.

   DID MS HOUSEGO REQUEST CANCELLATION OF HER NEWSTART ALLOWANCE ON 12 JULY 2016?

9. Ms Housego stated in her evidence at the hearing that she had never told Centrelink she wanted to cancel her payments.  However, she also stated that she was told by somebody that she would be able to transfer to another Job Network Agency if she had cancelled, which suggests she did request cancellation.

10. Her notes suggest that Ms Housego expected to be removed from the system if she did not re-engage with her Job Network Agency and that she had chosen not to do that.  Her diary notes of 12 July 2016 also suggest that Ms Housego sought an explanation from Centrelink as to why she had not “…been disconnected from Centrelink services after 28 days of ‘non-compliance..’.”.  At the end of the notes for 12 July 2016 she records: “Oh and I was informed that I had been exited from the system today”.

11. In her request for a review by AAT2 Ms Housego also states “…I only asked for the cancellation due to information which Centrelink provided…”,[5] again apparently acknowledging that she did request cancellation.

    [5] Exhibit R2, T1/6.

12. Given the contradictory nature of Ms Housego’s evidence and assertions, I have concluded that the Centrelink notice of decision dated 12 July 2016[6] provides the only contemporaneous and reliable evidence as to the nature of the conversation between Ms Housego and the relevant Centrelink staff member on 12 July 2016. That notice stated: “Your Newstart Allowance has been cancelled from 4 June 2016 at your request”, which I note is also consistent with the contemporaneous Centrelink note of 12 July 2016.[7]

    [6] Ibid, T7/21.

    [7] Ibid, T8/46.

13. Consistently with the conclusions of the AAT1 member, I am accordingly satisfied that Ms Housego did request cancellation of her Newstart Allowance on 12 July 2016.  I am also satisfied that Ms Housego knew what she was doing when she cancelled her allowance.  Based on her evidence, this action appears to have resulted from anger and frustration with her Job Network Agency and her unwillingness to participate in ‘work for the dole’.  Regardless of her reasoning, I believe she communicated her decision to cancel her payments and it was that communication which, correctly and appropriately in my view, led to the cancellation.

    CONCLUSION

14. For these reasons, I have concluded that on 12 July 2016 Ms Housego exercised her right to waive her entitlement to Newstart Allowance and the respondent correctly and lawfully cancelled her payments from 4 June 2016 pursuant to that request.

15. As I am satisfied that Ms Housego’s Newstart Allowance was correctly cancelled, I have decided to affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

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Administrative Assistant

Dated: 13 February 2018

Date(s) of hearing:	24 November 2017
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Department of Human Services