Ingram and Secretary to the Department of Family and Community Services
[2004] AATA 279
•17 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/450
GENERAL ADMINISTRATIVE DIVISION
)
Re DEREK INGRAM Applicant
And
SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date17 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision.
..........(Sgd) R G Kenny.........
Member
CATCHWORDS
YOUTH ALLOWANCE - Cancellation and rejection of claim – deemed receipt of notice - no application for review of decisions within relevant 13 week time-frame – decision not to back-date payments of youth allowance affirmed
Social Security Act 1991 s 23 (12)
Social Security (Administration) Act 1999 ss 36, 37, 81, 85, 107, 108, 109, 129, 237Angel and Department of Family and Community Services [2001] AATA 292
Frost and Secretary Department of Social Security (1995) AAT 10360REASONS FOR DECISION
17 March 2004 Mr R G Kenny, Member BACKGROUND
1. Derek Ingram (the applicant) was born on 24 May 1983, and completed his high school education in 2000. The applicant was in receipt of youth allowance payable under the Social Security Act 1991 (the Act) until November 2000 when it was cancelled by Centrelink on behalf of the Department of Family and Community Services (the respondent ).
2. By letter, dated 20 November 2000, the respondent advised the applicant that his youth allowance was cancelled with effect from 18 November 2000 (T7). On 5 March 2001, he made a further claim for youth allowance (T8) and, on 16 May 2001, the respondent rejected this claim (T16). On 20 May 2002, there was contact between the applicant’s parents and Centrelink and, on 30 May 2002, another claim for youth allowance was made (T21). This time, the respondent determined that youth allowance was payable to the applicant with effect from 20 May 2002.
3. On 24 June 2002, the applicant’s parents wrote to the respondent who treated their letter as an application for youth allowance to be paid from a date prior to 20 May 2002 (T22). On 25 October 2002, the respondent determined that the allowance was not payable from a date earlier than 20 May 2002 (T25). That decision was affirmed by an Authorised Review Officer on 11 March 2003 (T26) and, in turn, by the Social Security Appeals Tribunal on 28 April 2003 (T2). On 27 May 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) (T 1). The matter is to be determined in accordance with the terms of the Administrative Appeals Tribunal Act1975 (the AAT Act).
Hearing
4. The applicant attended the hearing and was represented by his father, Mr Chris Ingram. The respondent was represented by Ms J Dwyer, advocate, with the respondent’s Service Recovery Team. The following material was taken into evidence:
·Exhibit 1 the document prepared in accordance with section 37 of the AAT Act (the T documents T1-T28);
·Exhibit 2 a memorandum with attachments, dated 2 February 2004, by Sharon Trim;
·Exhibit 3 a Customer Record Access Monitor Report, dated 29 January 2004;
·Exhibit 4 a Customer Record Access Monitor Report, dated 22 January 2004;
·Exhibit 5 a Centrelink notice, dated 20 November 2000;
·Exhibit 6 a letter from Mr CJ and Mrs. MA Ingram, undated but received by Centrelink on 15 May 2001;
·Exhibit 7 a Centrelink file note, dated 11 December 2000;
·Exhibit 8 a Centrelink file note, dated 12 December 2000;
·Exhibit 9 a Centrelink file note, dated 4 May 2001;
·Exhibit 10 a Centrelink file note, dated 15 August 2002; and
·Exhibit 11 an affidavit, dated 11 February 2004, by John Gleadhill.
5. The issue for determination by the Tribunal is whether youth allowance is payable to the applicant prior to 20 May 2002. Relevant to the determination of that issue are the following provisions of the Social Security (Administration) Act 1999 (the Administration Act):
“68 Person receiving social security payment or holding concession card
(1) Subsection (2) applies to a person to whom a social security payment is being paid.
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:
(a) inform the Department if:
(i)a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;
(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.
(3) Subsection (4) applies to a person who is the holder of a concession card.
(4) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:
(a)inform the Department if:
(i)a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department a statement about a matter that might affect the person's qualification for the concession card.
(5) An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person's qualification for the concession card, as the case requires.
81 Cancellation or suspension for non-compliance with certain notices
(1) If:
(a)a person who is receiving a social security payment (other than a newstart allowance) has been given:
(i)a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii)a notice embodying a requirement under Division 1 of Part 5; and
(b)the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended.
(2) If:
(a)a person and his or her partner (the partner) are each receiving a social security payment; and
(b)the partner has been given:
(i)a notice under section 67 or 68 that requires the partner to give the Department a statement; or
(ii)a notice embodying a requirement under Division 1 of Part 5; and
(c)the notice relates to matters that might also affect the payment of the person's social security payment; and
(d)the partner does not comply with the requirement of the notice;
the Secretary may determine that the person's payment is to be cancelled or suspended.
85 Resumption of payment after cancellation or suspension
(1) If:
(a)a person's social security payment is cancelled by force of section 93 or 94 or the Secretary cancels or suspends a person's social security payment under section 80, 81 or 82; and
(b)the Secretary reconsiders the decision; and
(c)as a result of the reconsideration, the Secretary is satisfied that, because of the decision:
(i)the person did not receive a social security payment that was payable to the person; or
(ii)the person is not receiving a social security payment that is payable to the person;
the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.
(2) The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary's own initiative.
Construction of references to 1991 Act
244. A reference in:
(a)a provision of a law of the Commonwealth or a Territory enacted before 20 March 2000 (whether or not the provision has come into operation); or
(b)an instrument or a document;
to a provision of the 1991 Act that has been repealed by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 is, on and after 20 March 2000, to be construed as a reference to the corresponding provision of this Act.”
Evidence at the Hearing
The Applicant
6. The applicant said during his final year of high school in 2000 that he had decided to continue with tertiary study at a TAFE college in 2001. He said he could recall advising Centrelink of this, but said that he was not sure of the manner or the time in 2000 that he had done so. He said that he could not recall if he had completed a form which had been sent to him by Centrelink for the purpose of ascertaining his intention for 2001. Nor could he recall receiving letters from Centrelink advising him of the cancellation of his allowance in November 2000; or advising him that he was to complete fortnightly forms and to seek employment in order for his youth allowance to be continued after he completed high school; or rejecting his claim for youth allowance in 2001. He also said if he had received such letters, it would not have been his practice to read the information setting out his rights which were on the reverse sides of those letters.
7. The applicant said he believed the process of challenging Centrelink in relation to the decisions they had made was a waste of time, and for that reason his knowledge of dealings with Centrelink was “shallow”. He said after his allowance was cancelled, his father dealt with all matters relating to Centrelink and that his father kept all letters received in a separate file. He believed once he had lodged documentation relating to his tertiary course in 2001, he would receive back payments for the cancellation period. He said he had not agreed with the decision to cancel his allowance but had accepted that he would not receive payments during the Christmas break.
8. The applicant said he believed that he had received payment from Centrelink in the first half of 2001 although he was not certain about the second half of that year. He said he was not employed during that year and that he had no other income. He stated his main focus at the time was his study although he conceded that he may have been confused about the receipt of payments.
§ Chris Ingram
9. Mr Ingram, the applicant's father, said that he recalled receiving the letter, dated 20 November 2000, which advised of the cancellation of his son’s youth allowance. He said that he was aware of the need to seek review of a decision within a 3 month period and, for that reason, had gone to the Centrelink office in Caboolture where he spoke with a male officer about the letter. He was unable to give the date on which he attended the office but noted that some documents described as "mod F" had been lodged at the counter on 11 December 2000 and he thought that may have been the date on which he attended. He said that he told the officer with whom he spoke that his son would be attending a TAFE college for further study in 2001. He said that the officer told him that, once the documentation relating to the course of study had been lodged with Centrelink, youth allowance payments would recommence and he would receive back-payments. He also said that the officer at Caboolture told him that, in order for his son to receive youth allowance during the Christmas break, he would need to be working or looking for employment. He said that he was not aware of whether or not the officer accessed his son’s computer record during their conversation. He said that he told the SSAT about the conversation with the male officer at the Caboolture office although he conceded that back-dating of payments had not been referred to in that Tribunal’s record of evidence. He said that he also told the Authorised Review Officer about that conversation in his discussions with her.
10. Mr Ingram said he was aware his son had lodged a claim for youth allowance in February or March 2001 in relation to his TAFE course but said he had not seen a letter which rejected that claim. He said that he was not aware of any particular difficulties with the mail service at his residence but he said he was aware of letters which had gone astray in the past. In relation to the claim for 2001, he said Centrelink had sent a letter, dated 30 April 2001, in which it requested further information relating to his financial circumstances for the financial year 1999/2000 and set a period of 14 days within which the information had to be provided. He said he and his wife were in a business partnership and that the request had been for personal tax returns, business/partnership returns and a profit and loss statement for that financial year. He said that he had been unable to provide that information because his accountant had not yet completed his taxation returns for that year and this information did not become available to him until May 2002. He said that he and his wife prepared a letter which was sent to the Caboolture office. He identified a letter which was stamped as having been received at that office on 15 May 2001 (T14). He said the letter had, initially, been hand-written by his wife and that the copy in the Centrelink documents was a typed version. However, he said that the content of the letter was accurate and represented an attempt by him to place his son's application “on hold” until he was able to provide the financial information requested. He noted that the letter which rejected his son’s claim was dated 16 May 2001.
11. Mr Ingram said that, after sending the letter to Centrelink in May 2001, there had been no further contact with Centrelink until August 2001 when he attended the Caboolture office to discuss the payment of benefits to his daughter who was then 16 years of age. He said, at that time, he was still not aware that the 2001 claim by his son for youth allowance had been rejected. On this occasion, he said he spoke to a female officer and that, in this discussion, he mentioned that his son’s claim was "on hold". He said the officer did not access his son's computer record and there had been no reference to the backdating of any claims. The applicant was referred to the decision of the SSAT and to its record that the applicant had seen a male officer at that time. He said the SSAT hearing had been conducted by telephone, that he was not comfortable with that medium and that he may have been confused in giving his evidence on that occasion.
§ Sharon Trim
12. Ms Trim said she was an employee of Centrelink and had been for 20 years. She said that she is now a quality consultant in Brisbane but, in the period 1990 to 2002, she had worked in the Caboolture office.
13. Ms Trim said the procedure in relation to a person in the applicant’s position in 2000 was for a review form to be sent in October or November to ascertain whether he intended to undertake further study or employment in the following year. She said this was done in the applicant's case and no written response had been received from him. She said that there was no record of any conversation with the applicant at that time in relation to his intention for 2001. She said, when that occurred, the practice was for the person to be treated as a job-seeker with a requirement that forms be lodged on a fortnightly basis in order for youth allowance to be continued. She said that this had been done in the applicant's case by letter dated 23 October 2000 and she referred to the document at T5 as representing a copy of the letter which was sent to him at that time.
14. Ms Trim said that, in the applicant's case, there were two cancellation decisions: the first was on 13 November 2000, with effect from the following day, because the applicant had failed to return the requested fortnightly form; and the second was on 20 November 2000 with effect from 18 November 2000, because the applicant was under 18 years of age, had completed his course of study for the year and had not advised of his intention in relation to further study in 2001.
§ John Gleadhill
15. The affidavit completed by Mr Gleadhill related to the mailing system employed by the respondent. It reads:
“1. I am an officer employed by Centrelink (previously the Department of Social Security) in the Output Management Team (previously Brisbane Operations Support Centre) and have been so employed for the last 20 years. I am employed in the capacity of a Centrelink 3 Officer and am the Liaison Officer, Output Management. I am responsible for the overseeing of the printing and mailing of certain letters and forms sent to customers in Queensland and the Northern Territory.
2. It is within this role that I am able to comment on the procedures involved in the processing and lodgement of system-generated customer mail. ‘System-generated’ refers to the creation of letters and forms by the Centrelink computer. Such letters and forms are printed at a central location, placed in envelopes and collected by Australia Post for distribution.
3. Certain online print jobs are created daily before the online system is brought down each day. These letters/forms are printed during that night, checked for print quality and the totals printed are also checked to ensure anticipated quantities are printed. Batch numbers are incremented for each new batch.
4. Certain forms and payments are also processed once the online is down. This is known as off-line processing. These are also checked for accuracy in quantity and quality.
5. Ordinarily a letter would be generated on the date shown on the letter (whether automatically by the computer system or by an officer at the Customer Service Centre or a Call Centre) and the letter would be printed at Salmat Document Management Solutions at Acacia Ridge on the next working day. The exception would be if the letter had not been selected for printing because there was more information to be added by an officer at a later time.
6. Once printed by the printing section of Salmat, the letters are collected by the mailing section of Salmat on the morning of the following working day. The mailing section mechanically inserts the letters into envelopes marked ‘Postage Paid Australia’, which are then collected by Australia Post that afternoon. In my experience, letters to customers in the metropolitan area are usually delivered to the customer’s address on the next working day.
7. There is a reconciliation process undertaken to ensure that all letters which have been generated are printed and lodged with Australia Post. Salmat send me a copy of the Australia Post lodgement docket. It shows the number of letters for each batch collected by Australia Post. I compare this to the number of letters generated, as shown in the mailhouse work order sheet. The mailhouse work order sheet is produced by Salmat and shows the number of letters printed and released to the mailing section for each batch. I also check these figures against the quality-control sheet which is Centrelink’s computer-generated record of the number of letters generated in each batch.
8. This system ensures that all letters which have been generated are printed and delivered to Australia Post. It identifies the number of any ‘spoils’ which are letters which have been damaged by the machinery during processing (for example in folding or inserting) or ‘returns’ (which are letters which appear to Salmat to be defective – for example having incorrect formatting – and are returned by Salmat to Centrelink). Generally there are very few spoils: for example there might be nil in a batch of 50,000 or there might be half a dozen in such a batch. I have seen up to 20 or 30, but that is quite unusual. Spoils are reprinted by Salmat on the next working day and lodged with Australia Post on that day. There are very few returns. I record the customers’ names for returned letters and the reason for the return. Returns are referred to our System Support Group for follow up action.
9. If at any time during processing a reconciliation reveals a discrepancy, no further processing for that batch is carried out until the problem is rectified.
10. Centrelink and Salmat also use a Lotus Notes Database. This is used to record each step of the printing/mailing process including reprints and returns. I check this against the Australia Post lodgement dockets to ensure accuracy.”
Submissions
§ The Applicant
16. Mr Ingram submitted that both the cancellation decision in November 2000 and the rejection decision in May 2001 should not have been made by Centrelink. In relation to the cancellation decision, he submitted that this was because there was no point in requiring a school leaver to undertake employment for the short period of the Christmas break before undertaking study in the following year. In relation to the rejection decision, he submitted that this had been made because information about his financial circumstances had not been supplied as requested. However, he referred to the letter compiled by him and his wife and received by Centrelink on 15 May 2001 as providing the reason for not supplying this information and as constituting a request for the matter to be placed “on hold” for the time being. He also submitted that the rejection decision was contrary to the understanding that he had obtained in his conversation with the Centrelink officer in late 2000.
17. Mr Ingram submitted that, in the conversation that he had with the Centrelink officer in late 2000, he queried the initial decision to cancel his son's youth allowance and that, therefore, he had sought review of that decision within the required 13 week period. He also referred to the claim which was lodged on 5 March 2001 and said that he must have obtained documentation from Centrelink prior to that date in order for the claim to be made and that, therefore, his actions were probably taken within the 13 week period. In relation to the rejection decision, he submitted that he did not receive the notice of the decision and that, therefore, he could not have sought review of the decision because he was not aware that it had been made until 12 months later.
18. Mr Ingram submitted that Centrelink had made many errors in their dealings with his son and daughter with incorrect dates frequently recorded in documentation relating to them. He referred to one occasion when he said that an incorrect overpayment had been raised in relation to another type of Social Security payment. Because of Centrelink’s propensity to make errors, he submitted that reliance should not be placed on the absence of records of conversations between him and Centrelink officers because they may simply have, in error, not been recorded.
19. Mr Ingram referred to the affidavit of Mr Gleadhill and submitted that, even if Centrelink had a foolproof system for processing mail, there was still no guarantee that it had arrived in his mailbox. He submitted mail delivery in Australia was not 100% reliable and he also referred to media coverage of Centrelink practices which demonstrated that many letters were sent to incorrect addresses.
§ The Respondent
20. Ms Dwyer submitted that the correctness or otherwise of the decisions made by Centrelink concerning the cancellation of the applicant's youth allowance in November 2000 or the rejection of his claim in May 2001 was not in issue because, in any event, the question was whether or not review of the decisions was sought within the relevant time-frame provided by the Administration Act. She submitted that no review of either of the decisions had been made by or on behalf of the applicant within the respective thirteen week periods after the notices of those decisions were given.
21. In relation to the cancellation decision, Ms Dwyer referred to the applicant's evidence that, once he was aware that his payment had been cancelled, he left all arrangements with Centrelink to his father. She also referred to Mr Ingram’s evidence that he had attended the Centrelink office and spoken with a male officer. Ms Dwyer noted the absence of any reference in Centrelink files to a conversation between Mr Ingram and a male Centrelink officer in late 2000 and also noted that there was no reference made to the back-dating of youth allowance payments in any such conversation in the summary of evidence provided by the SSAT in respect of proceedings in that Tribunal. She also noted that, in his evidence, Mr Ingram said in a subsequent conversation with a Centrelink officer when he was seeking payments for his daughter, no reference had been made to the prospect of the backdating of the applicant's payments.
22. In relation to the notice, dated 16 May 2001, of the decision to reject the applicant's claim for youth allowance, Ms Dwyer submitted that this would have been sent by mail to the applicant’s address and that, even if it were not received by him, the deeming provisions of the Administration Act were applicable and the applicant must be taken to have received the notice. She also noted that Mr Ingram gave no indication that he had not received that notice in a detailed letter that was prepared by him and his wife and received by the respondent on 24 June 2002 which provided the basis for making the decisions under review (T22).
23. Ms Dwyer submitted that none of the steps the applicant or Mr Ingram took on the applicant’s behalf in late 2000 could be construed as constituting an application for review of the cancellation decision. She submitted that, at most, any conversation that took place between Mr Ingram and the Centrelink officer could be described as a query about the cancellation.
Consideration
24. I accept the submission by Ms Dwyer that the correctness or otherwise of the decisions to cancel the applicant's youth allowance in 2000 and to reject his subsequent claim for youth allowance in 2001 are not matters for determination. Section 129 of the Administration Act makes provision for a person who is affected by a decision made by an officer under the social security law to seek review of such decisions. Insofar as relevant, it reads:
“129 Application for review
(1) Subject to subsections (3) and (4), a person affected by:
(a) a decision of an officer under the social security law; or
…;
may apply to the Secretary for review of the decision.”
25. I am satisfied that that provision is applicable in relation to decisions to cancel or to reject a claim for youth allowance. Once that review process is properly commenced, the merits of the substantive decision are then able to be considered. In this matter, the issue is whether that review process was commenced in accordance with the terms of the Administration Act.
Cancellation Decision: 20 November 2000
26. In relation to the decision to cancel the applicant's youth allowance in November 2000, the provisions relevant to setting a date of effect of a subsequent favourable determination are sections 108 and 109 of the Administration Act which read:
“108. Definition
In this Subdivision: favourable determination means a determination under section 78 or 85.
109. Date of effect of favourable determination resulting from review
(1) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
(3) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is not given notice of the original decision; and
(c)the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(4) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(5) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;
the favourable determination takes effect on the day on which the review was begun by the Secretary.”
27. On 20 November 2000, the respondent wrote to the applicant and advised that his youth allowance had been cancelled (Exhibit 5). It is not disputed that this was received and read by the applicant and also by Mr Ingram. I am satisfied that this constitutes a notice of cancellation in that, in clear terms, it conveyed information about the fact of cancellation. The letter contained the reasons for cancellation and the right to have the decision reviewed which included a reference to the need, in order for backpayments to be made, for an application for review to be made within three months of being advised of the decision. In evidence, Mr Ingram said that he was aware of the need for the application for review to be made within that time-frame.
28. Neither the Act nor the Administration Act make provision for the means by which an application for review of a decision is to be made. In order to constitute such an application, it is not necessary that a formal request be made or that the application be in writing. An inquiry about a decision has been treated as an application for review: see Frost and Secretary Department of Social Security (1995) AAT 10360 and Angel and Department of Family and Community Services [2001] AATA 292. For that to be done, the Tribunal would need to be satisfied that the substance of the decision was referred to in such an inquiry.
29. In this case, there is evidence of the lodgement of documents on 11 December 2000 and to the entering of the record of that lodgement being made on 29 December 2000 (Exhibits 7 and 8). These entries make no reference to the applicant or to youth allowance and are related to a different form of social security payment. There is no record at that time of any conversation between a Centrelink officer and Mr Ingram concerning the applicant's youth allowance. The Customer Record Access Monitor Report for the period from 1 November 2000 until 25 December 2000 (Exhibit 3) indicates that there was no access by a Centrelink officer to the applicant's computer record during that period. Mr Ingram has provided different versions of the conversation that he had with the Centrelink officer at the end of 2000. In his evidence, he said that he had been told that back-payments would be made once a claim for youth allowance was made in relation to the course of study in 2001. His evidence, as recorded in the decision of the SSAT, reads:
“However he could see that there was some reason for the decision and he decided to accept it and have his son claim again when he started studying.”
30. I am not satisfied that, in any conversation that the applicant may have had with a Centrelink officer in November or December 2000, he queried the decision to cancel his son’s youth allowance in a manner which would amount to an application for review of that decision. Moreover, there is no evidence of any such application at the time of lodgement, in March 2001, of the claim for youth allowance in 2001. The first record of any such application is in the letter received by Centrelink on 24 June 2002 (T22). There, reference is made to the prospects of having the cancellation decision reviewed and no reference is made in that letter to the conversation with a Centrelink officer in November or December 2000 or to any understanding by Mr Ingram that the backdating should have been initiated by the lodging of the claim in relation to study in 2001.
31. In relation to the cancellation decision in November 2000, I am satisfied that there was no application for review made within 13 weeks of the giving of notice, dated 20 November 2000. Therefore, there is no provision in the Administration Act for the backdating of youth allowance payments in the manner requested by the applicant.
Rejection Decision: 16 May 2001
32. Following the lodgement of a claim for youth allowance, the Secretary must either grant or reject the claim in accordance with subsection 36(1) of the Administration Act and, where a claimant is qualified and the allowance is payable, the claim must be granted pursuant to subsection 37(1) of that Act. The provisions read:
“36. Obligation of Secretary to determine claim
(1) Subject to subsection (2), the Secretary must, in accordance with the social security law, determine a claim for a social security payment or a concession card, either granting or rejecting the claim.
37. Grant of claim
(1) Subject to section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a) the claimant is qualified for the social security payment; and
(b) the social security payment is payable”
33. The general rule relevant to setting a date of effect of a determination to grant such a claim is set out in section 107 of the Administration Act which reads:
“107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or a concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.
(4) If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b)no notice is given to the person informing the person of the original decision; and
(c)the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(5) If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and
(d)a decision that the claim be granted is made as a result of the review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
34. In evidence was a computer print-out of a letter dated 16 May 2001 (T16). This was prepared by the respondent who relies upon it as constituting a notice advising the applicant of the rejection of the claim, which was lodged by him on 5 March 2001 (T8), for youth allowance. The evidence of the applicant and Mr Ingram was that they did not receive this letter. Section 237 of the Administration Act relates to giving a notice of a decision and it reads:
“237 Notice of decisions
(1) If notice of a decision under the social security law is:
(a)delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).”
35. Sub-section 23 (12) of the Act also has application to the giving of notices and it reads:
“23 (12)
If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) …………..;
Section 237 of the Administration Act, or ….. apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.”
36. I have noted the evidence of Mr Gleadhill (Exhibit 13) in relation to the usual practices employed by the Centrelink office for dispatching mail. I am satisfied that the computer print-out is an accurate reproduction of a letter which was properly addressed and sent by prepaid post to the applicant and that, in accordance with the terms of subsection 237(2) of the Administration Act, it was given to the applicant. There is an absence of any evidence which establishes to my satisfaction that the letter was not received at the applicant's address. Accordingly, pursuant to subsection 237(3) of the Administration Act, I am satisfied that the applicant is taken to have received it in the ordinary course of post after it was sent by the respondent on 16 May 2001.
37. I have noted the copy of the letter written by Mr Ingram and his wife and received by Centrelink on 15 May 2001 (T14). This letter does not relate to the decision to reject the applicant's claim but, rather, provides information concerning the absence of financial records for the financial year ending June 2000. I am satisfied that this letter does not constitute an application for review. As determined above, the letter received by Centrelink on 24 June 2002 constituted the application for review of the cancellation decision in 2000 and I am also satisfied that this is the first effective application for review in relation to the rejection on the applicant's claim for youth allowance in 2001. That letter was received by Centrelink more than a year after the notice of 16 May 2001 and, therefore, well outside the 13 week time-frame provided for in section 107 of the Administration Act.
38. In the decision under the review, the date of effect for commencement of payment of youth allowance to the applicant was 20 May 2002. On that date, Mr Ingram spoke with a Centrelink officer about the payment of youth allowance for the applicant and also for his daughter and, subsequently, a claim for youth allowance was lodged on 30 May 2002 (T21). I am satisfied that youth allowance is not payable to the applicant from any date earlier than 20 May 2002.
Decision
39. The decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: S Appleton
Associate
Date/s of Hearing 9 February 2004
Date of Decision Wednesday, 17 March 2004The Applicant appeared in person and was assisted by Mr C Ingram
Solicitor for the Respondent Ms J Dwyer, Departmental Advocate
7
1
0