IRENE BOLLERMAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 83
•15 February 2012
[2012] AATA 83
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4175
Re
IRENE BOLLERMAN
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 15 February 2012 Place Brisbane Decision Summary
The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Newstart allowance – Cancellation due to failure to make a further claim – Request for review made more than 13 weeks after notice of decision given by Centrelink – Date of effect of favourable decision – Decisions under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 23(12)
Social Security (Administration) Act 1999 (Cth) s 11, 16, 80, 109, 129, 237
REASONS FOR DECISION
Mr R G Kenny, Senior Member
15 February 2012
APPLICATION
Irene Bollerman received income support payments in the form of newstart allowance under the Social Security Act 1991 (Cth) (the Act) until a Centrelink delegate determined, on 23 July 2010, that it be cancelled with effect from 25 June 2010. After Ms Bollerman enquired about her entitlement to newstart allowance on 5 January 2011, a Centrelink delegate determined, on 12 January 2011, that Ms Bollerman should be re-granted newstart allowance with effect from 5 January 2011. The decisions dated 23 July 2010 and 12 January 2011 were affirmed by an authorised review officer on 24 June 2011 and, in turn, by the Social Security Appeals Tribunal (the SSAT) on 24 August 2011. The effect of the decisions was that Ms Bollerman did not receive newstart allowance from 25 June 2010 until 5 January 2011.
The matters are to be determined in the absence of the parties without a formal hearing.[1]
[1] See s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
LEGISLATION AND ISSUES FOR DETERMINATION
In order for newstart allowance to be payable to Ms Bollerman in a particular period, a requirement under the Social Security (Administration) Act 1999 (Cth) (the Administration Act) is that a claim be made.[2] It is not in dispute that, in order for such payment to be payable for the period commencing on 25 June 2010, Ms Bollerman was required to lodge a claim with Centrelink by 8 July 2010. Again, it is not in dispute that Ms Bollerman did not make a claim by that date or that the first communication thereafter between her and Centrelink about her newstart allowance was on 5 January 2011. The Administration Act makes provision for cancellation when newstart allowance is not payable.[3] The first issue for the Tribunal is whether Ms Bollerman's newstart allowance should be cancelled with effect from 25 June 2010. The second issue for the Tribunal is whether the re-grant of newstart allowance should be paid from a date earlier than 5 January 2011.
[2] See ss 11 and 16 of the Administration Act.
[3] See s 80 of the Administration Act.
Relevant to that determination of the cancellation of newstart allowance are ss 11, 16, and 80 of the Administration Act. Relevant to the date of effect of the re-grant of newstart allowance are ss 109 and 129 of the Administration Act.
EVIDENCE
In her evidence to the SSAT, Ms Bollerman referred to her mental problems, in the form of depression, as the reason for not raising the matter of her newstart allowance before 5 January 2011. Reference was also made to a letter, dated 23 March 2010, from treating psychiatrist, Dr George Blair-West. Therein, Dr Blair-West confirmed that Ms Bollerman suffered from depression and wrote that she would often not process official documentation such as Centrelink forms. In her application for review, Ms Bollerman wrote:
I wish for a review wherein due consideration is given to the stated commitment of the Government in “providing appropriate assistance to people with mental issues ... and cognitive impairment” and where 'fairness and equity' in practice over-ride 'consistency'.
Centrelink file notes confirm that Ms Bollerman contacted Centrelink on 5 January 2011 about her newstart allowance entitlements. Also in evidence was a copy of the Centrelink letter dated 23 July 2010. It includes an advice to Ms Bollerman that she had a right to request review of the decision to cancel her newstart allowance. It also advised that any such request had to be made within 13 weeks of being told about the decision as well as the consequence that failure to do so might result in any back payment being made only from the date of seeking that review.
CONSIDERATION
Ms Bollerman did not claim newstart allowance by 8 July 2010 and, accordingly, newstart allowance was not payable to her at that time.[4] I am satisfied that it was appropriate for Centrelink to cancel her newstart allowance on 23 July 2010 with effect from 25 June 2010.[5]
[4] See ss 11 and 16 of the Administration Act.
[5] In accordance with s 80(1)(b) of the Administration Act.
The letter of 23 July 2010 set out the information about seeking review of the cancellation decision including the requirement that the review had to be sought within 13 weeks to maximise any period of back-dating of entitlements. I am satisfied that Ms Bollerman did not seek review of that decision before she contacted Centrelink on 5 January 2011, which exceeded that 13 week period. Ms Bollerman's request for review resulted in the favourable determination, on 12 January 2011, to re-grant her newstart allowance but with effect only from 5 January 2011.
A person may seek review of a Centrelink decision[6] and s 109 of the Administration Act makes provision for determining the date of effect if the review results in a favourable determination for the applicant. In so far as relevant, it reads:
[6] See s 129 of the Administration Act.
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.
The application for review of the cancellation decision was made more than 13 weeks after the letter concerning that decision was sent to Ms Bollerman and, accordingly, falls within s 109(2) of the Administration Act. I am satisfied that the earliest date that can be set for the re-commencement of newstart allowance is the date when Ms Bollerman contacted Centrelink. This was on 5 January 2011.
I have noted Ms Bollerman’s reference to the need for appropriate assistance to be given to persons with mental issues and cognitive impairment. I have also noted the medical evidence in that regard. However, there is no provision in the legislation noted above for the exercise of discretion in setting the start date for Ms Bollerman’s newstart allowance, whether that be for health or any other reason. Receipt by Ms Bollerman of the Centrelink letter of 23 July 2010 was not disputed. However, even if it were, I am satisfied that the letter was sent by post to her proper address and, in that situation, the Administration Act makes provision for it to be taken to have been received by her.[7]
[7] See s 237 of the Administration Act and s 23(12) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 15 February 2012
Hearing on the papers
Date(s) of hearing 7 February 2012
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