Hughes and Secretary, Department of Family and Community Services

[2002] AATA 810

DECISION AND REASONS FOR DECISION [2002] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/349

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      KEVIN HUGHES    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr M Griffin, Member         

Date17 September 2002

PlaceSydney

Decision      The decision under review is affirmed.             

[SGD] M Griffin
  Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – cancellation – forms and procedures – rejection of claim – failure to provide information to Delegate
Social Security (Administration) Act 1999 section 63

REASONS FOR DECISION

17 September 2002           Mr M Griffin, Member   

THE APPLICATION

1. This is an application by Kevin Hughes (hereinafter referred to as "the Applicant") in which he seeks review of a decision of the Social Security Appeals Tribunal (hereinafter referred to " the SSAT") made on 15 February 2002 to the effect that:

"The tribunal decided to agree with the decision under review."

1. The decision under review before the SSAT was one made by an authorised review officer, to reject the Applicant's claim for newstart allowance on 30 January 2002. The decision of 30 January 2002 had affirmed a decision by a Centrelink Delegate of the Secretary to the Department of Family and Community Services (hereinafter referred to as "the Respondent") on 11 January 2002 to reject the Applicant's claim for newstart allowance.

BACKGROUND

1. The Applicant is a fifty-year old man. On 13 July 2001, the Applicant attended at Centrelink for an interview as a new claimant for newstart allowance. On 19 July 2001, the Applicant attended a newstart seminar, which involved a general information session for new claimants.  On 20 July 2001, the Applicant was granted newstart allowance effective from 13 July 2001. On 7 November 2001, the Applicant advised Centrelink that he was in paid employment. On 22 November 2001, the newstart allowance was cancelled for failure to lodge an application for payment form. On 24 December 2001, the Applicant attended Centrelink and was issued the relevant form over the counter. On 27 December 2001, the Applicant was advised in writing of the cancellation of his newstart allowance from 22 November 2001. On 3 January 2002, the Applicant attended Centrelink and had discussions with staff about resumption of payment of newstart allowance. On 4 January 2002, the Applicant attended Centrelink and had discussions with staff. On 11 January 2002, the Applicant attended Centrelink and declined to provide relevant information on the claim for payment form. The Delegate thereupon refused the claim for newstart allowance. The Applicant's request for review was considered by an authorised review officer on 30 January 2002 and the Delegate's decision was affirmed.  The Applicant appealed to the SSAT on 31 January 2001. The SSAT affirmed the decision "not to pay Mr Hughes newstart allowance" on 15 February 2002. The Applicant applied to this Tribunal on 11 March 2002 for review of the SSAT decision.

THE HEARING

1. The application was heard by this Tribunal on 5 July 2002. The Applicant appeared on his own behalf. The Respondent was represented by Ms Rachel Quinn, an  advocate from the Advocacy and Administrative Law Team at Centrelink. 

1. There were tendered into evidence the Tribunal documents (the T- documents T1 – T17,pp1-41) produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the following exhibits. Exhibit A1 is a typewritten letter from the Applicant to this Tribunal dated 8 May 2002. Exhibit A2 is a handwritten statement from the Applicant to the Tribunal dated 5 July 2002. Exhibit A3 is the Application to the SSAT. Exhibit A4 is a letter from the Commonwealth Ombudsman to the Applicant dated 26 February 2002. Exhibit R1 is the Respondent's Statement of Issues and Exhibit R2 is the Respondent's Statement of Facts and Contentions.

1. Mr Hughes gave oral evidence on affirmation. He made it plain that he was not concerned with the decision to cancel the newstart allowance. He said he was upset about two matters. One was the manner in which he was dealt with by Centrelink staff whom he claimed were arrogant and peremptory in their attitude towards him. The second was the inconsistency in the procedures, which he claimed Centrelink required of him.

1. Mr Hughes said he did not wish to pursue the complaint about the attitude of the Centrelink staff towards him saying that he understood this was not a matter for the Tribunal. He said his application for review was concerned with inconsistency in the procedures he was required to undertake to resume the newstart allowance.

1. Mr Hughes said that after initially receiving newstart allowance he obtained work for a period and the allowance was cancelled. Ms Quinn for the Respondent confirmed from Department records that the allowance was first cancelled on 24 August 2001 and recommenced on 25 October 2001. He said he was asked on that occasion to "totally re-identify myself". That being the case as the Applicant understood it, he went home and returned to Centrelink with important personal documents to identify himself, only to be told they were not necessary. He said this was an inconvenience and more particularly exposed those important documents to risk of loss or some other danger. He said, "I'm less than impressed and I've complained about it…I consider that to be playing with people".  He continued "Can you now see from the previous experience, I'm getting all my previous documents ready to bring them in and I'm told it is not needed. I've just got to fill the current form out, so that's the second procedure". Mr Hughes said he included details of his pay from work, which was an overstatement, and actually included money he earned beyond the relevant date for that form. He said "it dawned on me later…I run it past them…they just typed it in the machine and said it is alright".

1. Mr Hughes said "then I got more work and then that ran out and I went back to Redfern [Centrelink] and I said "the work has run out" and the chappie went out the back and he came back with two forms and he said "here fill these out" and they were back forms. And all I said and this is what the appeal is about – all I said – was "I haven't had to do that before". Third procedure, yes? First time all new documents; second time, just the one current form; third time all back documents…So I went home with the forms to get some paper work that would show the previous conduct, and it took me a while to find it…I went back in [3 January 2002] with the form…and all they had to do was say, yes Mr Hughes, you're right this is a third procedure we've given you…And he said "it has always been like that" And that's what this is all about". Mr Hughes said he wrote a letter to the review officer that day, 3 January 2002, complaining about the inconsistent procedures.

1. I asked Mr Hughes what happened next. He said "Well I'd been injured…I wasn't in any state really to contest the matter, so I filled the forms out, gave them to them the next day [4 January 2002], which was a Friday, and they refused to accept them".  Mr Hughes said the staff gave him "a chit to turn up on the…11th".

1. I invited Mr Hughes to comment on the Centrelink evidence that he attended on 11 January 2002 but refused to complete and sign the forms. His evidence became somewhat confused or at least confusing. He said he had already lodged an appeal on the 7th and had seen the authorised review officer on the 3rd. He said, "I could not win when I was given that appointment. That appointment was written up on the 4th which was the Friday that I having had the authorised review officer dismiss the matter and because of my injury and I showed you the letter that I lodged then under protest and they refused to accept them. He wrote up a chit to give me an appointment, which was for the 11th. Now I could not win…I turned up as a courtesy…there was no point in me filling the forms out that I was being given on the 11th because I had already appealed [see Exhibit A3}…I said to them I've got nothing to say…I was furious, injury or no injury, I was furious and he's made an appeal, an appointment for me on the 11th  but by that time I've already gone to the SSAT".

1. The Respondent's file records state Mr Hughes attended at Redfern Centrelink on 3 January 2002 at 1.39pm requesting information/help. The records do not present any evidence to either confirm or refute Mr Hughes's claim that staff refused to accept documentation from him on either the 3rd or 4th of January 2002. However, there are entries for 4 January 2002 which state the Applicant was unaware that he could post/fax the forms rather than delivering them in person.

1. The Respondent produced some partly completed application forms with a view to Mr Hughes providing the relevant detail to enable payment of the subject newstart allowance which had been cancelled from 22/11/01 to 12/1/02 (newstart allowance was resumed from 13 January 2002 following production of medical evidence by Mr Hughes). Mr Hughes declined to complete these forms, reiterating that his concern was with the claimed inconsistency in the procedures required of him by Centrelink. The Respondent presented a number of forms which are used in connection with newstart allowance and which contain variations in detail. An investigation officer from the office of the Commonwealth Ombudsman in her letter (Exhibit A4) stated in reference to the newstart forms, "I am not entirely satisfied with the wording used on the forms".
   THE LEGISLATION

1. Section 63 of the Social Security (Administration) Act 1999 ("the Act") relevantly provides:

"Requirement to attend Department etc.

(1)      This section applies to a person if:

(a)      either:

(i) the person is receiving, or has made a claim for, a social security payment; or

(ii) the person is the holder of, or has made a claim for, a concession card; and

(b)        the person is not a person to whom section 64 applies.

(2) If the Secretary is of the opinion that a person to whom this section applies, other than a person to whom subsection (3) applies, should:

(a)      attend an office of the Department; or
(b)      contact the Department; or
(c)      attend a particular place for a particular purpose; or
(d)      give information to the Secretary;

the Secretary may give the person written notice that he or she is required, within a specified time, to:

(e)      attend that office; or
(f)       contact the Department; or
(g)      attend that place for that purpose; or
(h)      give that information;

as the case may be.

(3) If the Secretary is of the opinion that a person who is receiving, or has made a claim for, a newstart allowance should:

(a)      attend an office of the Department; or
(b)      contact the Department; or
(c)      attend a particular place for a particular purpose; or
(d)        give information to the Secretary;

the Secretary may notify the person that he or she is required, within a specified time, to:

(e)      attend that office; or
(f)       contact the Department; or
(g)      attend that place for that purpose; or
(h)      give that information;

as the case may be.
(4) If:

(a) a person is receiving, or has made a claim for, a social security payment; and

(b)      the Secretary gives the person a notice under subsection (2); and
(c)      the requirement of the notice is reasonable; and
(d)      the person does not comply with the requirement;

the following paragraphs have effect:

(e) if the person is receiving a youth allowance, the allowance is not payable, and if, at a later time, a youth allowance becomes payable to the person, an administrative breach rate reduction period applies to the person;

(f) in any other case, the payment that the person is receiving or has claimed is not payable.

(5)      If:

(a) a person is receiving, or has made a claim for, a newstart allowance; and

(b)      the Secretary notifies the person under subsection (3); and
(c)      the requirement of the notification is reasonable; and
(d)      the person does not comply with the requirement;

a newstart allowance is not payable, and if, at a later time, a newstart allowance becomes payable to the person, an administrative breach rate reduction period applies to the person.
…

(7) The Secretary may give a person a notice under subsection (2) by sending the notice by prepaid post addressed to the person at the postal address of the person last known to the Secretary. This subsection does not prevent the Secretary from giving the person notice in any other way.

(8) The Secretary may notify a person for the purposes of subsection (3) by sending a written notification by prepaid post addressed to the person at the postal address of the person last known to the Secretary. This subsection does not prevent the Secretary from notifying the person in any other way.

(9)      The Secretary may determine:

(a) that a social security payment that was not payable because of paragraph (4)(f) or subsection (5) is payable to a person; or

(b) that an administrative breach rate reduction period does not apply to a person under paragraph (4)(e) or subsection (5);

if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under subsection (2) or (3), as the case may be.

(10) The Secretary may determine that a person who, by virtue of subsection (6), has ceased to be, or is not, qualified for a concession card is qualified for such a card if the Secretary is satisfied that the person has a reasonable excuse for not complying with the requirement of the notice under subsection (2).

(11) A notice under subsection (2) or a notification under subsection (3) must inform the person to whom it is given of the effect of this section."

FINDINGS OF FACT AND REASONS

1. I have considered the written and oral evidence and had regard to the legislation bearing on this decision. I am satisfied the Applicant's newstart allowance was validly cancelled, on 22 November 2001, as the direct result of the provision of information by the Applicant which called into question his eligibility and his subsequent failure to lodge the relevant claim forms. The Applicant does not contest this fact.

1. I am satisfied the Applicant sought and obtained the relevant forms to resume the allowance on 24 December 2001. I am satisfied that for medical reasons the Applicant could not return the forms until 3 January 2002. I am satisfied the Applicant was unaware he could lodge the forms by post rather than in person, until he visited the Centrelink office and was informed of this on 3 January 2002.

1. I am satisfied the Applicant became upset with the Centrelink staff on 3 January 2002. I accept the Applicant's evidence that on the next day, 4 January 2002, the Centrelink staff made an appointment for him to be interviewed on the following Friday 11 January 2002 in respect of resumption of newstart allowance. I accept the Applicant's evidence that he was furious at this point. I am not satisfied this was a reasonable response to his dealings with the Centrelink staff at that time.

1. From my observations of the Applicant's demeanour during a lengthy hearing, I am satisfied that it was not unreasonable for Centrelink counter staff to make an appointment for such an interview in the circumstances, rather than deal at the counter with an irate claimant.

1. I accept the potential for some minor confusion in the wording of the various claim forms. However, I am not satisfied that any such confusion directly caused the decision under review, nor am I satisfied that the variation in the content of the forms or the procedures involved are unreasonable. I note the comments of the investigation officer from the office of the Commonwealth Ombudsman in this regard but I am not satisfied, on the evidence to hand, that the procedures required of Mr Hughes were of such a nature as to be unreasonable for the purposes of the legislation (section 63(5) of the Act refers). I do not accept the Applicant's claim that the decision to reject his application was made on 3 January 2002 nor do I accept that the decision was made on 4 January 2002. I am satisfied the Centrelink staff acted reasonably in making an appointment for the Applicant to be interviewed on 11 January 2002 about the resumption of newstart allowance. I am satisfied the Applicant declined to provide the information required, for the purposes of section 63 of the Act, at that interview and that the refusal of his application inevitably and lawfully followed from that failure to provide information.

1. I have had regard to the provision at section 63(9) of the Act. On the evidence, I am not satisfied the Applicant had a reasonable excuse for not complying with the information requirement under section 63(3) and, therefore, this is not an appropriate matter for the beneficial exercise of the discretion available pursuant to that subsection. Accordingly, the decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member

Signed: H Sim         .....................................................................................
  Associate

Date of Hearing  5 July 2002
Date of Decision  17 September 2002

Applicant  Self-represented
           Representative for the Respondent         Ms Rachel Quinn