JJGG and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 866

JJGG and Secretary, Department of Social Services (Social security second review) [2025] ARTA 866 (24 June 2025)
Applicant/s:  JJGG
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2023/9238

Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:24 June 2025

Decision:The Tribunal sets aside the decision under review and remits the matter to the Secretary for reconsideration with orders that the Applicant’s entitlement to and the payability of jobseeker payment, including any assessment of arrears, is to be reassessed in accordance with the following findings:

That the cancellation of the Applicant’s jobseeker payment on 4 January 2022 with effect from 3 September 2021 was incorrect; and·
The Applicant sought internal review of the decision to cancel her jobseeker payment on 10 June 2022.·

...............................[SGD].........................................
Senior Member J Longo
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
Catchwords
SOCIAL SECURITY – Jobseeker payment – notice given under s.63 of the Administration Act – no response to notice – Whether there was reasonable excuse for not complying with s.63 notice – Cancellation of Jobseeker payment - date from which Applicant’s Jobseeker payment is to be reinstated – whether Applicant received notice of decision – whether and when the Applicant requested a review of the decision – date of effect – reviewable decision set aside
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Review Tribunal Act 2024(Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
G v MIBP [2018] FCA 1229
Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279
McPherson and Secretary, Department of Social Services [2020] AATA 12
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978
Secondary Materials
Social Security Guide
Statement of Reasons
BACKGROUND

The Applicant applied for jobseeker payment on 3 September 2021. On 22 September 2021, the Applicant was granted jobseeker payment payable from 10 December 2021.
On 4 January 2022, Services Australia – Centrelink (the Agency) cancelled the Applicant’s jobseeker payment because she failed to comply with her reporting obligations.[1]
[1] [T8] at page 28.
On 10 June 2022 the Applicant contacted the Agency about her jobseeker payment[2] and the Applicant was advised that her jobseeker payment had been cancelled. The Applicant was directed to reapply for jobseeker payment and once granted she could seek review of the cancellation of the payment.
[2] [T15] at page 59.
On 16 June 2022 the Applicant applied for jobseeker payment and disability support pension. On 17 June 2022 the Applicant again contacted the Agency about the cancellation of her jobseeker payment.
On 27 June 2023, an authorised review officer of the Agency affirmed the cancellation decision. The Applicant sought review of the authorised review officer decision with the Social Services and Child Support Division (first review) of the Administrative Appeals Tribunal (the AAT). On 17 October 2023, the first review set aside the decision to cancel the Applicant’s jobseeker payment from 4 January 2022 but determined that the Applicant was not entitled to arrears. On 7 December 2023 the Applicant sought a review of the first review decision with the AAT and sought an extension of time for the lodgement of the application, which was not opposed by the Respondent.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions,[3]any applications to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
[3] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
In summary, the Applicant believes that jobseeker payment should not have been cancelled from 4 January 2022 and that they should be paid arrears from this date. I note that the Applicant was granted disability support pension from 16 June 2022.
The Respondent’s position is that the earliest date any favourable determination can be made regarding the Applicant’s cancellation of jobseeker payment is 10 June 2022, and consequently, the first review decision should be set aside.
For the reasons that follow, I have set aside the decision under review. In making this decision, I have considered the oral evidence of the Applicant and her mother, who also participated in the hearing, and the documents provided by the Applicant and the Respondent. The Respondent’s legal representative also made written submissions prior to the hearing and oral submissions at hearing.
ISSUES
The issues that arise in this application are whether:
· the Applicant’s jobseeker payment was correctly cancelled; and
· the Applicant is entitled to arrears of jobseeker payment.
CONSIDERATION
In this matter I have considered the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). I have also considered the Social Security Guide (the Guide) where relevant. In considering the Guide, I note that I am not bound to follow it.[4]
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
WAS THE APPLICANT’S JOBSEEKER PAYMENT CORRECTLY CANCELLED?
The qualification and payability requirements for jobseeker payment are found in Part 2.12, Division 1 of Chapter 2 of the Act. In respect of the requirements to provide information in relation to jobseeker payment, these are contained in Division 6 of Part 3 of the Administration Act. In particular, section 63 of the Administration Act provides as follows:
Requirement to attend Department etc.
Secretary may require person to attend Department etc.
(1) Subsection (2) applies to a person if:
(a) the person is receiving, or has made a claim for, a social security payment; or
(b) the person is the holder of, or has made a claim for, a concession card; or
(c) the Department is contacted by or on behalf of the person in relation to a claim for:
(i) if the person is not undertaking full - time study and is not a new apprentice -- youth allowance; or
(ii) in any case -- jobseeker payment;
to be paid to the person.
(2) If the Secretary is of the opinion that a person to whom this subsection 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 notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Subsection 64(1) of the Administration Act describes the effect of non-compliance with the notice requirements under section 63 of the Administration Act, as they relate to jobseeker payment, as follows:
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2), (2AB) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment -- the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
At the hearing, the Applicant’s mother gave some background to the Applicant’s circumstances leading to the claim for jobseeker payment. It was outlined that the Applicant was injured in a workplace incident which resulted in the Applicant being unable to work. As she was unable to work, the Applicant applied for, and was granted, leave without pay from her employer. After some time, it was suggested to her to apply for sickness benefit but this was not possible and so the Applicant applied for jobseeker payment on 3 September 2021. During this time, it was recommended that the Applicant stay with her grandmother, due to the deterioration of her mental health and her experience with COVID-19 lockdowns at the time. The Applicant stated that the claim for jobseeker payment was completed while she was already at her grandmother’s address but she had listed her previous address as her residential address in the claim form. The Applicant’s address history, as maintained by the Agency and as referred to in the Respondent’s Statement of Facts, Issues and Contentions (SFIC),[5] confirms the Applicant’s evidence as to the address recorded by the Agency at the time of her claim for jobseeker payment. This is also consistent with the jobseeker payment claim form completed by the Applicant.[6] The Applicant confirmed that the letters from the Agency were sent to her previous address. She stated that she received an email granting her jobseeker payment and to download the app but she didn’t download the app.
[5] Attachment A to the SFIC.
[6] [T4].
The Applicant’s mother stated that she spoke to the Applicant about the correspondence sent by the Agency to her previous address, including correspondence about her health care card and another letter about an assessment, and that during this time the Applicant was affected by medication prescribed by her psychiatrist. The Applicant’s mother stated that after speaking to the applicant about these two letters, she stopped opening her mail. She said she didn’t want to do this without the Applicant’s consent. Instead, she put the correspondence in her room. She confirmed that the Applicant opened the letters when she returned, in or around February 2022.
Relevant to this application was the letter sent to the Applicant on 10 December 2021 by the Agency.[7] The letter was addressed to the Applicant’s previous address, prior to moving to her grandmother’s address. The letter outlined, among other things, the Applicant’s reporting requirements and stated as follows:
This Reporting Statement is an information notice given under social security law. You have an obligation to provide us with all the information that is relevant to your payment. Giving false or misleading information is a serious offence. Information provided by you may be checked under our data matching programs.[8]
[7] [T7] at page 24.
[8] [T7] at page 26
The letter further stated that the Applicant was required to report changes in circumstances and, if they were employed, the number of hours they worked or any income paid for each reporting period. The letter set out reporting periods from 10 December 2021 to 24 February 2022 and required the Applicant to report for each of the reporting periods on a particular date. The Applicant was required to report on 16 December 2021 and 29 December 2021. The letter gave further information to the Applicant as to the consequences for not reporting on time and stated as follows:
What happens if you do not report on time for each reporting period
If you do not provide these details by 5.00pm on the reporting date your Jobseeker Payment may be delayed or cancelled.[9]
[9] [T7] at page 27.
The Applicant told the Tribunal that her mother might have sent her a photograph of the letter but she could not recall the contents of the letter specifically. The submissions by the Respondent were that the Applicant was sent the letter by ordinary post to her last known address on 10 December 2021.[10] The Applicant does not dispute that the letter was sent to her last known address. I accept that the letter on 10 December 2021 was sent to the Applicant’s last known address and am satisfied that the letter is deemed to have been received by the Applicant.[11] Accordingly, I find that the Applicant is deemed to have been given the notice sent to her last known address, even if the Applicant did not read the letter.
[10] [T7] at page 24.
[11] As per section 29(1) of the Acts Interpretation Act 1901 (Cth) and subsection 163(1) of the Evidence Act 1995 (Cth).
The Respondent’s submission, which was not disputed by the Applicant, was that there is no evidence that the Applicant reported on either the 16 December 2021 or the 29 December 2021. I accept that the Applicant did not report on either of these dates.
In the written submissions, the Respondent concedes that the Applicant’s jobseeker payment should not have been cancelled on 4 January 2022 on the basis that the Applicant had a reasonable excuse for not complying with the section 63(2) notice issued to her on 10 December 2021.
The Respondent refers to the Applicant’s evidence in the first review decision where the Applicant explained her circumstances at the time:
17.… stayed with her maternal grandmother between September 2021 and January 2022 because she was extremely unwell, having suffered adverse responses to psychiatric medication, which included psychotic symptoms such as hallucinations and night terrors, acute depression, and suicidal thoughts. Her stay with her grandmother was intended as a form of respite, but her symptoms became so acute that her grandmother feared for her safety and returned her to her usual home … early in January 2022.[12]
[12] AAT first review decision at paragraph 17.
I note that the Applicant provided a referral from her GP, dated 3 March 2021, for mental health treatment. A list of treating health professionals, including counsellors, psychologists and psychiatrists, indicated that treatment and medication for her mental health condition had occurred since at least August 2020. In addition, a GP report, dated 15 December 2021, confirmed a diagnosis of generalised anxiety disorder and PTSD and finally, the statement dated 2 February 2024 from her team leader with her previous employer stated that she ‘was undergoing a particularly challenging period in late 2021–22 in her personal and professional life, including severe mental health difficulties’.
I note that the Respondent’s SFIC accepts the Applicant’s evidence that she was being treated for a variety of health issues which impacted on her employment and other circumstances. I accept that these health issues impacted her employment and other circumstances, in particular her ability to comply with her reporting requirements as specified in the letter dated 10 December 2021. Accordingly, I accept that these circumstances provided a reasonable excuse for her non-compliance with the notice, in accordance with paragraph 64(1)(e) of the Administration Act and therefore her jobseeker payment should not have been cancelled.
Is the Applicant entitled to arrears of jobseeker payment?
As a consequence of the Applicant not complying with the requirements of the letter sent to her on 10 December 2021, on 4 January 2022 the Agency cancelled the Applicant’s jobseeker payment with effect from 3 September 2021.[13]
[13] [T8].
The Applicant’s mother stated that one or two nights after the Applicant returned to the mother’s home, she called the Agency on the Applicant’s behalf and while on the call, the Applicant gave her consent for her mother to speak to the Agency on her behalf. She stated that she spoke to someone about the Applicant’s jobseeker payment cancellation. In response to questions from the Respondent, the Applicant’s mother confirmed that the call to the Agency happened shortly after the Applicant returned from her grandmother’s house. The Applicant’s mother was also referred to a telephone conversation with the Agency in June 2022,[14] but stated that this was not the same discussion as that which had occurred when the Applicant returned from her grandmother’s house.
[14] [T15] at page 59.
The Applicant also recalled her mother speaking to the Agency, and her mother handing her the phone to verbally authorise her mother to speak on her behalf. She stated that she believed that the conversation occurred prior to 10 June 2022 but could not recall when the conversation occurred. The Applicant stated that her mother was also present to assist with the discussion on 10 June 2022.
It has been conceded by the Respondent that the Applicant’s jobseeker payment should not have been cancelled as a result of failure to report her circumstances on 16 December 2021 and 29 December 2021 in accordance with the reporting statement sent to her on 10 December 2021. This is because of the Applicant’s circumstances at the time provided a reasonable excuse for her non-compliance with the notice, in accordance with paragraph 64(1)(e) of the Administration Act. I have accepted that the Applicant had a reasonable excuse for the non-compliance with her reporting requirements.
However, in conceding that the Applicant had a reasonable excuse for not complying with her reporting requirements, the next issue is whether the Applicant is entitled to arrears of jobseeker payment. The Applicant contended that the date of effect should be the date her jobseeker payment was cancelled, being 3 September 2021. The Respondent contends that there is limited entitlement to arrears because the Applicant did not seek, or purport to seek, review of the cancellation until 10 June 2022.
Subsection 109(1) of the Administration Act provides that where an applicant applies for review under section 129 within 13 weeks after notice of a decision is given, and a favourable determination is made as a result of the application, the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
Subsection 109(2) of the Administration Act provides that where an applicant applies for review under section 129 more than 13 weeks after notice of a decision is given and a favourable determination is made as a result of the application, the favourable determination takes effect on the day on which the application for review was made. A favourable determination is defined by section 108 of the Administration Act as a determination under sections 78, 85, 85AA or 85A.
As submitted in the Respondent’s SFIC, a request for internal review does not need to have a specific form or wording. In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978, the Tribunal stated as follows:
While it is accepted that social security legislation is beneficial and should be construed generously and keeping in mind difficulties recipients can have with legislative provisions, there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe that it is incorrect. Simply applying for an alternative benefit cannot normally be accepted as a request for review of a decision to reject a prior claim. [15]
[15] [2009] AATA 978 at paragraph 8.
The submissions by the Respondent were that the Applicant was sent notification of the cancellation on 4 January 2022.[16] The Applicant does not dispute that the letter was sent to her last known address. Section 237 of the Administration Act requires the Agency to notify the Applicant at the last known address. Subsection 23(12) of the Act confirms that section 237 of the Administration Act applies even if the Applicant did not actually receive the notice.[17] I accept that the letter on 4 January 2022 was sent to the Applicant’s last known address and am satisfied that the letter is deemed to have been received by the Applicant.
[16] [T8].
[17] see McPherson and Secretary, Department of Social Services [2020] AATA 12 at [38]-[41]

What the Applicant and her mother have submitted is that they sought review of the decision to cancel jobseeker payment shortly after the Applicant returned from her grandmother’s address. The Applicant stated that she returned in January or February 2022. The Applicant and her mother were given an opportunity after the hearing to provide evidence of any contact with the Agency within 13 weeks of 4 January 2022, the date the jobseeker payment was cancelled. The Applicant and her mother advised that they were unable to provide any records of contacting the Agency.
The Respondent was also directed to provide a Customer Record Access Monitor Report (CRAM Report) and a Document List on the Applicant’s mother’s file to ascertain whether there was any contact recorded. The response provided by the Agency confirmed that there was no contact recorded. There was also no record of any contact on the Applicant’s record with the Agency during the 13-week period from 4 January 2022.
I accept the submission by the Respondent that an inquiry about a decision has been treated as an application for review.[18] The requirement for what constitutes such a request is that the inquiry is more than the provision of information and that the substance of the decision was referred to in such an inquiry.[19] I am not satisfied, based on the evidence before me, that the Applicant or the Applicant’s mother on their behalf sought review or even that she indicated any dissatisfaction with the decision prior to 10 June 2022.
[18] Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279 at [28].
[19] Ibid.
Therefore, the effect of subsection 109(2) of the Administration Act is that the earliest date that the Applicant is entitled to arrears of jobseeker payment is 10 June 2022. Consequently, the Applicant is not entitled to be paid any arrears earlier than this date. There are no other provisions available which would allow me to backdate the Applicant’s jobseeker payment entitlement to an earlier date.
Decision
The Tribunal sets aside the decision under review and remits the matter to the Secretary for reconsideration with orders that the Applicant’s entitlement to and the payability of jobseeker payment, including any assessment of arrears, is to be reassessed in accordance with the following findings:
·That the cancellation of the Applicant’s jobseeker payment on 4 January 2022 with effect from 3 September 2021 was incorrect; and
·The Applicant sought internal review of the decision to cancel her jobseeker payment on 10 June 2022.

Date of hearing: 11 April 2025

Applicant: Self-represented

Solicitors for the Respondent: Mr Lewis Manalili, Services Australia

Date of hearing:	11 April 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Lewis Manalili, Services Australia