JKLRS v Secretary, Department of Family and Community Services
[2002] AATA 816
•19 September 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 816
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2001/874
GENERAL ADMINISTRATIVE DIVISION ) Re JKLRS Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date19 September 2002
PlaceSydney
Decision
The decision under review is affirmed.
The Tribunal notes that the effect of the decision under review has been ameliorated by the Respondent’s recent decision to pay the Applicant compensation for defective administration for the period 28 April 2000 until and including 25 June 2000.
..............................................
Ms S M Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Cancellation of Youth Allowance – Whether Notice of Decision Given – Payment of Arrears
LEGISLATION
Social Security Act 1991 ss 23, 561B, 561C, 1243A, 1302A(1)
Social Security (Administration) Act 1999 ss 13, 68, 85, 109, 129, 137, 237, 244, 245
Acts Interpretation Act (1901) ss 28A, 29AUTHORITIES
Re Secretary, Department of Family and Community Services and Thipthorp [1999] AATA 823
Re Estate of Thomas Biggin and Secretary, Department of Family and Community Services [2000] AATA 125
Re Catt and Secretary, Department of Family and Community Services [2000] AATA 1101
Re Secretary, Department of Social Security and Manley (AAT 10285, 11 July 1995)
Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207
Re Secretary, Department of Family and Community Services and Warby [2000] AATA 1067
Secretary, Department of Social Security v O’Connell; Secretary, Department of Social Security v Sevel (1992) 27 ALD 263
Re Secretary, Department of Family and Community Servicesand Wilkinson [1999] AATA 163
Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631REASONS FOR DECISION
19 September 2002 Ms S M Bullock, Senior Member
1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”), by the Applicant, JKLRS, of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 18 May 2001 (T2), which decided that JKLRS was entitled to Youth Allowance as at 20 December 1999 when a Centrelink Officer cancelled the Youth Allowance. Arrears of Youth Allowance however were determined by the SSAT not to be payable and the decision to pay Youth Allowance from 26 June 2000 was correct. (The Tribunal notes that the SSAT has used the dates 26 June 2000 and 26 June 2001, but the Tribunal has decided that the correct date of the decision was from 26 June 2000.)
2. A Hearing was held before the Tribunal in Sydney on 19 December 2001. Final written submissions were received from JKLRS on 5 February 2002. JKLRS provided oral evidence to the Tribunal and was self-represented. The Respondent, the Secretary, Department of Family and Community Services (“the Department”), was represented by Ms S Fahey, Departmental Advocate. Documents were taken into evidence, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T25). Also taken into evidence were the following Exhibits:
Exhibit No.
Description
Date
A1
Centrelink letter to JKLRS
3 December 2001
A2
Written submissions by JKLRS
8 January 2002
A3
Final written submissions from JKLRS
5 February 2002
R1
Respondent’s Statement of Facts and Contentions
23 November 2001
R2
Respondent’s Additional Statement of Contentions
23 January 2002
ISSUES
3. The issues in this matter are:
· What is the correct date of the favourable decision to pay JKLRS’s Youth Allowance?
· Is JKLRS entitled to arrears of Youth Allowance and if so, from what date?
LEGISLATION
4. A determination in this matter requires consideration of a number of pieces of legislation, namely the Social Security Act 1991 (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) and the Acts Interpretation Act 1901.
5. In relation to the issue of arrears of payment of Youth Allowance, the relevant law, the Administration Act, commenced on 20 March 2000, which is within the period during which JKLRS was not paid.
6. Section 13 of the Administration Act deals with start dates for deemed claims and as relevant states:
“13 Deemed claim—person contacting Department about a claim for a
social security payment
(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…”
7. Section 85 of the Administration Act deals with the resumption of payment after cancellation or suspension and as relevant states:
“85 Resumption of payment after cancellation or suspension
(1)If:
(a)a social security payment ceases to be payable to a person under section 93 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.
….”
8. JKLRS sought review of the decision to cancel the Youth Allowance after 20 March 2000, the date of commencement of the Administration Act. Review was sought under section 129 of the Administration Act.
9. Section 109 of the Administration Act deals with the date of effect of a favourable determination resulting from review and subsection 109(2) of the Administration Act deals with the circumstances of a person being given notice of a decision to cancel the Youth Allowance. Subsection 109(2) of the Administration Act states:
“109 Date of effect of favourable determination resulting from review
…
(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.
…”
10. The issue of notices provided to JKLRS before 20 March 2000 are dealt with under section 1302A of the Act. As relevant, section 1302A of the Act states:
“Notice of decisions under this Act
1302A(1) If notice of a decision under this Act 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 pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1: compare section 28A of the Acts Interpretation Act 1901.
Note 2: Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
1302A(2) Notice of a decision under this Act may be given to a person by properly addressing, prepaying and posting the document as a letter.
Note: compare the first limb of section 29 of the Acts Interpretation Act 1901.
1302A(3) If notice of a decision under this Act 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 letter would be delivered in the ordinary course of the post unless the contrary is proved.
Note: compare the second limb of section 29 of the Acts Interpretation Act 1901.
1302A(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 this Act (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)
….”
11. Section 1302A was inserted into the Act by the Social Security Legislation AmendmentAct (No 3) 1992 (No 230/1992) with effect from 24 December 1992. The Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 3) 1992 states at p78:
“… The Principal Act contains provisions which seek to prevent the payment of more than three months of arrears to a person in these circumstances and only if the person has sought review of the decision within 3 months of its having been made.
In such cases, it has been the practice to rely on Section 28A of the Acts Interpretation Act 1901 (the AIA) to deem a person to whom such a notice has been sent as having received it. However, the Federal Court in the cases of O’Connell and Sevel has brought this practice into question. It is not feasible for the Department to seek information from banks etc. given the large number of clients with whom the Department deals. Administration of the Act would become extremely difficult if the Department were obliged to locate clients who have “disappeared”. It is reasonable to expect clients to notify the Department of changes of address to ensure their correct social security entitlements can continue to be paid and to ensure that public monies are being paid only to those who are qualified.
The proposed measure is intended to make certain that if a person sought a review of a decision more than 3 months after a notice of the original decision was given (to, say, cancel family payment) arrears would not be payable back to the date of that decision. This will be done by clarifying when notice of a decision is given.”
12. Section 237 of the Administration Act is identical to section 1302A of the Act and, as relevant, section 237 of the Administration Act states:
“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).
….”
13. Subsection 23(12) of the Act deals with notices which are taken to have been given but are not received and as relevant, subsection 23(12) of the Act states:
“23(12) If:
(a) section 1302A of this Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 1302A applies, or sections 28A and 29 apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Note: An example of a circumstance that is likely to satisfy the Secretary that the person did not actually receive the notice is if the notice is sent back to the Department marked "return to sender" or "not at this address" or "whereabouts unknown".
…”
14. Section 68 of the Administration Act refers to notices that may be given by the Secretary to a person receiving a social security payment or holding a concession card as relevant states:
“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 a statement 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.
…”
15. Section 244 and 245 of the Administration Act are transitional provisions and allow notices provided under sections 561B and 561C of the Act to be treated as notices under section 68 of the Administration Act.
16. Section 28A and section 29 of the Acts Interpretation Act 1901 state:
“28A Service of documents
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a)on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
29 Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
….”
17. Section 137 of the Administration Act deals with certain decisions which are not to be revived. It states:
“ 137 Certain decisions not to be revived
(1)This section has effect if:
(a)the Secretary makes a determination (the first determination) that:
(i) a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable to a person at a particular rate; and
(b)the Secretary makes a determination (the second determination):
(i) cancelling the social security payment; or
(ii) reducing the rate at which the social security payment is payable; and
(c) notice of the second determination is given to the person; and
(d) the person applies under section 129 for review of the second determination; and
(e) the application is made more than 13 weeks after notice of the second determination was given; and
(f) a decision (the review decision) is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i) to set aside the second determination; or
(ii) to affirm a decision setting aside the second determination.
(2) This section has effect if:
(a) the Secretary makes a determination (the first determination) that:
(i) a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable to a person at a particular rate; and
(b)the Secretary makes a determination (the second determination):
(i) cancelling the social security payment; or
(ii) reducing the rate at which the social security payment is payable; and
(c) notice of the second determination is given to the person; and
(d) the Secretary reviews the second determination under section 126 without any application under section 129 for review of the decision having been made; and
(e) the decision of the Secretary on the review is to set aside the second determination; and
(f) the decision on the review is made more than 13 weeks after notice of the second determination was given.
(3)This section has effect if:
(a)the Secretary makes a determination (the first determination) that:
(i) a person's claim for a concession card is granted; or
(ii) a person is qualified for a concession card; and
(b) the Secretary makes a determination (the second determination) cancelling the concession card; and
(c) notice of the second determination is given to the person; and
(d) the person applies under section 129 for review of the second determination; and
(e) the application is made more than 13 weeks after notice of the second determination was given; and
(f) a decision (the review decision) is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i) to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination.
(4)This section has effect if:
(a)the Secretary makes a determination (the first determination) that:
(i) a person's claim for a concession card is granted; or
(ii) a person is qualified for a concession card; and
(b) the Secretary makes a determination (the second determination) cancelling the concession card; and
(c) notice of the second determination is given to the person; and
(d) the Secretary reviews the second determination under section 126 without any application under section 129 for review of the declaration having been made; and
(e) the decision of the Secretary on the review is to set aside the second determination; and
(f) the decision is made more than 13 weeks after notice of the second determination was given.
(5) If this section has effect:
(a) the second determination does not become void from the time when it was made; and
(b) the mere setting aside of the second determination does not of itself revive the first determination.
(6) For the purposes of this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a) the person applies for review of another determination or decision; and
(b) a review of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
….”
18. Section 137 of the Administration Act is identical to section 1243A of the Act which states:
“Certain determinations not to be revived
1243A(1) If:
(a)the Secretary makes a determination (the first determination) that:
(i) a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the second determination):
(i) to cancel the social security payment; or
(ii) to reduce the rate at which the social security payment is payable; and
(c) notice of the second determination is given to the person; and
(d) the person applies under section 1240 for review of the second determination; and
(e) the application is made more than 13 weeks after the notice is given; and
(f) a decision (the review decision) is made by the Secretary the CEO, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; and
(g)the review decision, or the effect of the review decision, is:
(i) to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i) the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2) In this section, a person is taken to have applied for review of a determination (the primary determination) if:
(a) the person applies for review of another determination or decision; and
(b) an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision.
Note 1: For the meaning of given in relation to a notice of a decision see section 1302A.
Note 2: A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3: This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4: If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increased rate, certain sections (eg section 887) restrict the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
…”
BACKGROUND
19. The following information is provided by way of background and is not disputed:
· JKLRS was born in 1982.
· On 15 November 1999, JKLRS was advised by Centrelink that she did not have to lodge fortnightly “Application for Payment” forms (T13, p71). The letter was addressed to Bardia Street.
· On 22 November 1999, JKLRS was sent a letter by Centrelink addressed to Bardia Street, stating that she was understood to be ceasing study in 28 days and was asked to notify Centrelink within 28 days if she was studying within the next year (T13, p74).
· On 7 December 1999, a notice was sent to JKLRS at Bardia Street, advising that her Application for Payment had to be returned every two weeks (T13, p80). She was also advised that the paydate was 16 December 1999.
· On 13 December 1999, there is a record of JKLRS contacting Centrelink and being advised that she must lodge fortnightly forms advising of income (T9, p43).
· On 20 December 1999, Centrelink sent JKLRS a letter addressed to Bardia Street, which advised her that her Youth Allowance was cancelled from 30 December 1999 (T13, p85) because Centrelink did not have details of her parent’s income. The letter further advised that the final payment was for the period 2 December to 15 December 1999.
· On 21 December 1999, Centrelink sent JKLRS a further letter addressed to Bardia Street, stating that Youth Allowance was cancelled from 21 December 1999, because Centrelink had no details of her parent’s income (T13, p86).
· On 28 April 2000, JKLRS contacted Centrelink about her intention to claim a payment or concession card and was sent a form (T13, p87).
· On 31 May 2000, Centrelink wrote to JKLRS informing her that she would be sent a “Low Income Health Care Card” (T13, p90).
· JKLRS contacted Centrelink on 26 June 2000 about payment of Youth Allowance. She was advised that Youth Allowance was not being paid and she would need to complete another claim form (T14, p96).
· On 27 June 2000, JKLRS again contacted Centrelink regarding her intention to claim Youth Allowance and was sent another claim form. A letter was sent dated 27 June 2000 and addressed to Bardia Street, enclosing a claim form (T13, p93).
· On 10 July 2000, JKLRS lodged a Youth Allowance claim form and a decision was subsequently made to pay Youth Allowance from 26 June 2000.
· On 19 July 2000, JKLRS requested a review of the decision not to pay arrears of Youth Allowance (T15, p97).
· On 16 August 2000, JKLRS was notified by the original decision-maker, “E Parreno”, in a letter addressed to Bardia Street, that the decision had been reviewed and affirmed as correct that JKLRS be paid Youth Allowance from 26 June 2000 (T18).
· On 14 November 2000, by letter with JKLRS’s address recorded as Bardia Road, JKLRS requested a review by an Authorised Review Officer (ARO) (T20), who on 16 February 2001, in a letter addressed to Bardia Road, affirmed the decision under review not to pay arrears of Youth Allowance (T23).
· On 19 March 2001, JKLRS made a request for an application for review to the SSAT (T24) and on 18 May 2001, the SSAT decided that although a favourable decision could be made that JKLRS was entitled to Youth Allowance at the time of the decision by Centrelink on 20 December 1999 to cancel Youth Allowance, despite this, the SSAT found that no arrears of Youth Allowance were payable because she had not sought a review within three months of the cancellation of Youth Allowance. Therefore the decision to pay Youth Allowance from 26 June 2000 was correct and affirmed by the SSAT. The SSAT recommended that JKLRS be paid compensation for detriment caused by defective management or an “Act of Grace” ex gratia payment be made to her.
· On 6 July 2001, JKLRS lodged an application for review to the Tribunal stating:
“I do not agree with the decision of the SSAT in regards to stop of my Youth Allowance Payment from December 1999 to June 2000, because I did not receive any letter or indication from Centrelink which would inform me about the stop of my payment and I believe I should be paid the amount (from December to June).” (T1, p2)
· At the Hearing, Ms Fahey noted that JKLRS was paid arrears of Youth Allowance for the period 28 April 2000 until and including 25 June 2000. This occurred as JKLRS was paid compensation for detriment caused by defective administration. The Tribunal notes that on 28 April 2000, JKLRS made telephone contact with Centrelink concerning a payment or concession card and was not advised of the cancellation of Youth Allowance or her appeal rights. Thus the period for arrears claimed by JKLRS at the time of Hearing was from 16 December 1999, the date of the last payment of Youth Allowance, until 27 April 2000.
EVIDENCE OF JKLRS
20. JKLRS told the Tribunal that she lives with her parents at a new address. She has lived at this address since April 2001. Prior to that time, JKLRS lived at Bardia Road, and had lived at this address since August 1997. JKLRS is the eldest of the three children. Her two younger brothers also were living at home at the time of the Hearing.
21. JKLRS informed the Tribunal that her Youth Allowance commenced, she believed, in about August 1999. JKLRS stated that she did not receive Centrelink letters addressed to her at Bardia Street, dated 20 and 21 December 1999. At that time, JKLRS was attending secondary school. JKLRS informed the Tribunal that neither she nor her family had become aware of any difficulties with the receipt of domestic mail at that time. JKLRS noted however that it was the Christmas period and she believed that there had been difficulties in receiving some mail from Iran during December 1999 and January 2000. There were letters from Iran which arrived two or three months late and one letter which they were informed about by the sender, which did not arrive at all. JKLRS explained that the family had on occasions received mail addressed to other street addresses in the suburb. She believed that this happened four or five times since they had lived in Bardia Road and this equated to once or twice per year during the period that the family lived there. JKLRS stated that there was no complaint made to the local Post Office about these occasional mail difficulties. As far as she was aware, the family was not aware of any other domestic mail not being delivered.
22. The family’s practice with mail was that any mail was put on the dining room table and from there it was picked up by the appropriate person. JKLRS stated that she always made sure that she read her mail and where appropriate, responded to it. JKLRS further explained that she has a file in which she keeps correspondence and she records if she has replied to any particular piece of correspondence. JKLRS stated that she was not recording details of receipts or replied correspondence in relation to the period around 20 – 21 December 1999.
23. JKLRS told the Tribunal that she first became aware of the cancellation of the Youth Allowance in June 2000.
24. JKLRS stated that she was earning approximately $30.00 from “KFC” where she was working up until April 2000. JKLRS did not contact Centrelink about these earnings because she knew that it was well below the earnings income limit.
25. JKLRS told the Tribunal that the Youth Allowance was approximately $146.00 per fortnight and that it was deposited directly into her parent’s bank account. During the period under review, her father was undertaking a business course. JKLRS admitted that the Youth Allowance should have been checked, but it was not. She stated that her parents thought that the account was low in funds because JKLRS was using it to finance his business course.
26. JKLRS noted that she was not familiar with the Youth Allowance system and this inexperience may have been partly responsible for the difficulties that she has experienced.
27. In April 2000, JKLRS contacted Centrelink about a Health Care Card but made no enquiries about Youth Allowance, because at that time, she did not know there was a problem with the allowance.
SUBMISSIONS
28. JKLRS’s interpretation of section 109 of the Administration Act is that because she was not told of the cancellation of the Youth Allowance, then section 109 does not apply to her. JKLRS referred the Tribunal to Re Secretary, Department of Family and Community Services and Thipthorp [1999] AATA 823, noting the circumstances in that case were similar to hers and could be applied to her particular situation. In this regard, JKLRS noted that there was no evidence of the letter of 20 December 1999 being sent to her apart from the computer generated letter contained at T13, p85. There was no full or contemporaneous text letter as was the case in Re Secretary, Department of Family and Community Services and Thipthorp (supra). Furthermore, the evidence in that matter was that there could be no guarantee that the letter had been delivered and JKLRS submitted that these were exactly the circumstances in her case. JKLRS submitted that even if the section 68 notice was served, she did not receive it. JKLRS submitted that because she was not aware of the payment having been cancelled, the 13 week [three month] period in which she had to request a review did not apply.
29. In her final written submissions received on 8 January 2002 (Exhibit A2) and 5 February 2002 (Exhibit A3), JKLRS further submitted that she was misdirected by Centrelink staff in December 1999 in relation to the lodgement of the Youth Allowance application form. JKLRS was led to believe that there was no need for her to lodge ongoing application forms because she earned well below the income limit. JKLRS noted that the SSAT agreed with this proposition.
30. Referring to subsection 109(2)(b) of the Administration Act, JKLRS submitted that she did not “receive” a letter to “inform” her of the decision to cancel the Youth Allowance. JKLRS reiterated that she had only commenced receiving the Youth Allowance in August of 1999 and was not familiar with the system at that particular time. It was therefore reasonable for her, JKLRS contended, to assume that her Youth Allowance payments were continuing. Furthermore, JKLRS noted that the payments went into her parents’ account and because they did not receive regular bank statements, in addition to the fact that her father was undertaking a business course during that period, it was reasonable for her to assume that her payments were still being made.
31. JKLRS noted the SSAT finding that the favourable determination had not been done in accordance with the notice under section 68 of the Administration Act prior to July 2000. In relation to subsection 68(a)(I)(ii), JKLRS contended that there was no change in her circumstances during the period and that it was obvious that the information that was given to Centrelink by her about her family would still have been the same during the period 16 December 1999 until 27 April 2000 and that this was done in accordance with the notice under section 68 of the Administration Act. Accordingly, JKLRS contended the date of the favourable determination should be “December 16 and not July 2000 (or 28 April 2000)” (Exhibit A2).
32. JKLRS referred the Tribunal to subection 1302A(3) of the Act, and asked the Tribunal to make a finding that it was proved to the contrary that she did not receive the letter of 20 December 1999 and that if she had received such a letter, she definitely would have responded to it, because that was her usual practice.
33. JKLRS submitted that the Respondent’s reference to the Social Security Legislation Amendment Act (No 3) 1992 (No 230/1992) is clearly irrelevant to her case because the amendment is mainly concerned with the change in address and other changes in circumstances that have occurred and have not been advised to Centrelink. It deals with, for example, customers who have disappeared. JKLRS submitted that in her case however, there had been no change of address or circumstances and she believed that the amendment did not have the capacity to stop the arrears of Youth Allowance being paid to her.
34. Furthermore, in relation to section 1243A of the Act and the Respondent’s submission that this section stood alone to prevent Youth Allowance arrears being paid to her, in JKLRS’s opinion, the reference was contradicted by the explanation given by Mr Con Sciacca MP (in the Second Reading Speech to the Social Security Amendment Bill (No 2) 1993), when he noted that the Act had a requirement for a “Family Allowance” client to notify of a change of address. The Explanatory Memorandum to the Social Security Amendment Bill (No 2) 1993 reinforced the contradiction, JKLRS submitted, in relation to the purpose of section 1243A and her case. The Explanatory Memorandum referred to “Family Allowance”, JKLRS contended, and had nothing to do with her particular circumstances concerning Youth Allowance. To reinforce her interpretation of the Act, JKLRS submitted that “at no point it refers to Youth Allowance, nor does it leave any ambiguity in regards to the types of payments that are subjected to comply with the act. It explicitly and evidently deals with family payments” (Exhibit A2, p3-4).
35. JKLRS noted the Respondent’s reference to section 137 of the Administration Act. JKLRS submitted that the Act does not prevent the first determination from being revived because the Act clearly utilises the words “of itself” which even on a literal interpretation, in JKLRS’s submission, left open the “avenue” for the Tribunal to consider other evidence and not just rely on the “mere setting aside of the second determination” by itself.
36. JKLRS contended that her circumstances are also similar to those dealt with in Secretary, Department of Social Security v O’Connell; Secretary, Department of Social Security v Sevel (1992) 27 ALD 263. In those cases, JKLRS understood the principle was annunciated that if a person was receiving an allowance which was cancelled and the person remained otherwise qualified, including in relation to the income test, then that person would be entitled to payment of arrears of the allowance to the same extent as if the cancellation decision had not been made. Thus, in relation to her own circumstances, JKLRS submitted that once the SSAT put aside the December 1999 decision, the restriction of the 13 week rule should be removed from her, based on the fact that not enough notice was given to her. Furthermore, in those cases, it was found that if the beneficiary of an allowance did not receive notice of the cancellation decision, then the notice sent to the last known place of residence would not be able to fulfil the condition of a notice having been properly served. JKLRS noted that the Secretary of the Department of Family and Community Services has the discretion as to the date from which the allowance should resume.
37. The Tribunal was asked by JKLRS to consider all of the evidence. Once this was done, it should become clear, she submitted, that her matter is a “self limiting” case and the consideration of public policy and the “flood gates” being opened, would be unnecessary because her circumstances were quite individual. In this regard, JKLRS submitted that the difficulties in her case had occurred as a result of misleading advice given to her by Centrelink’s staff in relation to lodging of the fortnightly income information and the fact that she was also not familiar with Youth Allowance procedures. JKLRS submitted that, in all of her circumstances, it would have been reasonable for her to assume that she was being paid Youth Allowance and thus the 13 week rule should not apply to her. JKLRS contended that policy consideration should not have the capacity to restrain the Tribunal from exercising its discretion in regards to the arrears of payments of Youth Allowance from December 1999 until the end of April 2000. Her circumstances are exceptional and unique and JKLRS submitted that not many people would have cases with similar circumstances. Reasonable steps should have been made by Centrelink to inform her of the cancellation of her Youth Allowance. The notice given in December 1999, which she never received, in JKLRS’s view, was not adequate to cancel her Youth Allowance.
38. In her final written submissions in reply, JKLRS contended that based on the circumstances at the time, the payment should never have been cancelled in the first place. There is an inappropriate exercise of Centrelink’s discretion to cease the Youth Allowance payment in December 1999 without ensuring that she had proper knowledge of the decision at the time. JKLRS submitted that because of the limitation created by the 13 week period, proper steps should have been taken to ensure that she had an understanding of her legal rights in relation to the restriction that the law creates in relation to the cancellation of Youth Allowance. These simple and proper steps should include practices such as sending another letter or telephoning the Applicant just prior to the expiry of the 13 week period. This would serve to not only ensure that customers such as JKLRS were informed of their position, but would also save Centrelink the legal costs associated with Applicants’ appeals in regards to the cancellation of various departmental benefits, allowances and pensions. Such steps were also referred to in Secretary, Department of Social Security v O’Connell and Secretary, Department of Social Security v Sevel (supra).
39. JKLRS reiterated the submission that Centrelink staff had advised her that she only had to inform Centrelink by telephone if her income exceeded $230.00. Given that her income was never more than this amount, it was a logical assumption for her that she did not have to inform Centrelink of her income thus believing she continued to receive Youth Allowance. The SSAT accepted that it was JKLRS’s understanding that she was not required to lodge the fortnightly forms.
40. The Youth Allowance, as has been noted, was paid into JKLRS’s parents’ joint bank account and they received bank statements at infrequent intervals. It would have been difficult for JKLRS, she contended, to check the bank statements to ensure that she was receiving the correct amount of Youth Allowance.
41. In the Respondent’s Additional Statement of Contentions (Exhibit R2), JKLRS noted that even though the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 3) 1992 refers to “Family Allowance” and a change of address, it was not limited to these circumstances. JKLRS contended that based on the fact that the Explanatory Memorandum does not state that the Social Security Legislation Amendment Bill (N0 3) 1992 serves a “general purpose”, then the only place that the “general purpose of the Bill” is stated is in the Respondent’s Statement of Contentions. There is thus no evidence that the Security Legislation Amendment Bill (N0 3) 1992 was for a general purpose, JKLRS concluded.
42. JKLRS emphasised that the 13 week restriction appeared to her to be unfair and unjust in the circumstances. She asked how could she be expected to respond in 13 weeks to a letter which she never received.
43. Accordingly, JKLRS submitted that on all of the evidence, the decision under review should be set aside and a decision made in substitution that she was qualified and should be paid Youth Allowance from 16 December 1999 until 27 April 2000.
44. Ms Fahey, for the Respondent, submitted that although a favourable determination could be made that JKLRS was qualified for Youth Allowance from the date of cancellation, arrears of Youth Allowance are only payable from the date she sought a review of the decision to cancel Youth Allowance, that date was 26 June 2000. As JKLRS requested a review of the decision not to pay arrears after 20 March 2000, the date of commencement of the Administration Act, accordingly that Act applies.
45. Ms Fahey submitted that section 68 of the Administration Act must be read as a whole as it refers not only to a notice of a specified event or change of circumstances or in relation to a specified event or change of circumstances being likely occur, but also deals with a statement about matters which might affect the payment to the person of a social security benefit.
46. Ms Fahey submitted that when a person requests payment of income support from an earlier date, the provision which sets the date from which payment can be made is section 109 of the Administration Act. Applying this section, if a decision is made about an Applicant’s Youth Allowance and a person is given notice advising of that decision and furthermore, the Applicant seeks a review of the decision after a period of more than 13 weeks of being provided notice of that decision and it is decided that the Applicant is entitled to a favourable determination, the determination can only take place on the day on which the Applicant sought the review. In JKLRS’s case, that was 26 June 2000, although the date had become 28 April 2000, given the granting of compensation for the defective administration from 28 April 2000 up to and including 25 June 2000.
47. Ms Fahey further submitted that the notice or the cancellation of the Youth Allowance was sent on 20 December 1999. Allowing four days for receipt at JKLRS’s address through the ordinary course of post, the date on which the decision was notified, was contended by Ms Fahey to be 27 December 1999, including of public holidays. The 13 week period for lodging a review or the decision to cancel the Youth Allowance therefore ended on 28 March 2000 (Exhibit R1). It was contended by Ms Fahey that there are no records held in Centrelink in any form which indicate that JKLRS requested a review of the cancellation of her Youth Allowance during the relevant period.
48. In relation to the notice or the decision to cancel the Youth Allowance, Ms Fahey contended that the notice of the decision was served on JKLRS on 20 December 1999 by sending it to her postal address by prepaid post to the address last notified to the Secretary. Ms Fahey contended that JKLRS was validly notified of the cancellation through the application of section 1302A of the Act. The legislative history of section 1302A is that it was inserted by the Social Security Legislation Amendment Act (No 3) 1992 (No 230/1992), with effect from 24 December 1992. The amendment of the provision was to overcome the effect of the Full Federal Court’s decision in Secretary, Department of Social Security v O’Connell and Secretary, Department of Social Security v Sevel (supra), and to ensure that no arrears could be paid for any reason, when a person sought review of a decision more than 13 weeks after being given written notice of the decision. The amendment was also inserted to limit arrears of an income support payment. Ms Fahey submitted that even though the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 3) 1992 refers to “Family Allowance” and a change of address, it is not limited to those circumstances as section 1302A is a general provision which is applied to all types of payments and circumstances (Exhibit R2). Ms Fahey submitted that section 237 of the Administration Act is identical to section 1302A of the Act.
49. Even though JKLRS stated she did not receive the notice of 20 December 1999, Ms Fahey contended that the cancellation notice was validly given. Ms Fahey submitted that there must be objective evidence that the relevant notice was not given. This may relate to the disruption to normal mail deliveries such as flooding for example or in other circumstances where Australia Post can provide evidence of non-delivery. Ms Fahey further submitted that there is no objective evidence before the Tribunal that the notice was not given. Thus, the notice of the decision is given because it could not be proved to the contrary.
50. Ms Fahey submitted that the notice was sent to JKLRS’s last known address as was evidenced by the copy of the notice sent on 20 December 1999. Ms Fahey contended that section 1302A of the Act is satisfied. Furthermore, and as a consequence, subsection 23(12)(a) of the Act is satisfied. Ms Fahey contended that subsection 23(12)(b) of the Act does not have to be considered in these circumstances. Furthermore, if subsection 23(12)(b) does not have to be considered, then sections 28(A) and 29 of the Acts Interpretation Act 1901 are not considered. Subsection 23(12)(b) applies to all other notices other than the notice of a decision, Ms Fahey submitted. A notice is deemed to be given even if the secretary is satisfied that the person did not actually receive it through the application of subsection 23(12).
51. Ms Fahey distinguished the case of Re Secretary, Department of Family and Community Services and Thipthorp (supra) from the circumstances of JKLRS. In that case, the Tribunal noted that section 1302A is a deeming provision and that it did not necessarily follow that if none of the conditions specified in subsections 1302A(1)(a), (b) and (c) are satisfied, notice of the relevant decision has not been given to the person concerned. That Tribunal decided that subsection 1302A(1) merely deems notice to have been given if one of those specified conditions had been satisfied; it does not deem not to have been given if none of those conditions had been satisfied. In other words, it was noted by that Tribunal that notice may be found to have been given to a person in a manner other than specified in subsection 1302A(1) of the Act. The distinguishing features between Ms JKLRS’s circumstances and those discussed in Re Secretary, Department of Family and Community Services and Thipthorp (supra), is that section 1302A is satisfied. In Re Secretary, Department of Family and Community Services and Thipthorp (supra), there was a problem with the address on the cancellation notice sent to Ms Thipthorp. There was also no copy of the letter sent to Ms Thipthorp, and the only documentary evidence of the letter was a computer record of it being issued. The Tribunal in that case found that the notice had not been issued, thereby section 1302A was not satisfied. As Section 1302A was not satisfied, no notice was found to have been given and arrears of “Family Allowance” was payable.
52. In Re Estate of Thomas Biggin and Secretary, Department of Family and Community Services [2000] AATA 125, the Tribunal held that the 13 week rule did not apply because the decision to cancel Mr Biggin’s Disability Support Pension was based upon a factual error by the Department. Ms Fahey submitted that the circumstances of that case were substantially different from JKLRS’s case and the Department considered that the decision was incorrect in terms of the application of the legislation.
53. In Re Catt and Secretary, Department of Family and Community Services [2000] AATA 1101, that Tribunal concluded that a letter giving notice of a reduction in the rate of Parenting Payment had been “given” to the Applicant within the terms of section 1302A of the Act [section 237 of the Administration Act]. In that case, the letter was properly addressed, there was no evidence of disruptions to postal services during the relevant period and the letter was not returned to sender. Accordingly, Ms Fahey submitted that the receipt of the letter was deemed by this section, notwithstanding the Applicant’s evidence, and it was accepted by the Tribunal without any doubts as to it veracity, that she did not receive it. In Re Secretary Department of Social Security and Manley (AAT 10285, 11 July 1995); Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207 and Re Secretary, Department of Family and Community Services and Warby [2000] AATA 1067, although sympathetic towards income support recipients, the Tribunals in those matters found that arrears could not be paid, Ms Fahey submitted.
54. Ms Fahey contended that even if a discretion were available to prevent the operation of the 13 week rule in section 109 of the Administration Act, section 1243A of the Act (or section 137 of the Administration Act) stands alone to prevent arrears of Youth Allowance being paid to the Applicant seeking review outside the requisite period for arrears to be payable. Ms Fahey submitted that section 1243A was inserted into the Act by the Social Security Amendment Act(No 2) 1993 (No 120/1993). The amendment received Royal Assent on 24 December 1993. Ms Fahey noted that section 1243A of the Act reinforces the legislative purpose of limiting the payment of arrears. It prevents the payment of arrears if a request for review is outside the requisite time. While it is accepted in JKLRS’s case that there is no change of address involved, the principles involved applies and the Explanatory Memorandum accompanying the Social Security Amendment Bill (No 2) 1993 clarifies its purpose.
55. It was noted that the amendment contained within 1243A would ensure, for the purposes of that particular issue that arrears of Family Payment would not be made from an earlier date on which a person sought review of an adverse decision unless no notice of the decision was sent to the person or the review is sought within three months of the notification. It also had the intention of making sure that adequate review of entitlements could take place by obliging clients to notify of changes of address and clarify the provisions concerning the discretion to suspend a Family Payment when contact with the client was lost. Accordingly, Ms Fahey submitted that section 1243A of the Act or section 137 of the Administration Act contemplate that if there is a favourable decision, that is, a decision to grant payment or pay a certain rate, this decision is referred to as the “first determination”. If an unfavourable decision is made later to cancel or reduce payment this is called the “second determination”. If the person is given notice advising him or her of the second determination and the person seeks a review of the second determination more than 13 weeks after the notice is given then subsections 1243A(1)(h) and (i) state that the second determination does not become void from the time when it was made and the mere setting aside of the second determination does not of itself revive the first determination. Therefore, even if it is agreed that the second determination was incorrect, section 1243A of the Act provides that the second determination does not become void and it also prevents the first determination from being revived.
56. As JKLRS did not request a review of a cancellation of Youth Allowance until 26 June 2000, the Respondent submitted that clearly through the operation of either section 1243A of the Act or section 137 of the Administration Act, the correct date of effect for restoring the Respondent’s payments of Youth Allowance was, prior to the payment of compensation for defective administration, 26 June 2000. Consequently no Youth Allowance is payable prior to 26 June 2000, however, with the payment of compensation for defective administration, no payment of arrears could be made any earlier than 28 April 2000, due to the fact that JKLRS allowed more than 13 weeks to elapse from the date of the unfavourable decision.
57. Ms Fahey submitted that the notice of the cancellation of 20 December 1999 was sent to JKLRS and was correctly addressed. This is demonstrated by the copy of the notice contained at T13, p85. While JKLRS stated that the notice was not received, Ms Fahey contended that it was validly served on her through the application of section 1302A of the Act or section 237 of the Administration Act.
58. In her final written submission, Ms Fahey contended that JKLRS was informed by the Department that she must lodge her fortnightly forms (T9, p43). She was not, as has been asserted by JKLRS, misdirected by Centrelink staff in relation to the lodgement of forms. Notwithstanding the reason why her Youth Allowance was cancelled, JKLRS was validly notified of the cancellation of her Youth Allowance, Ms Fahey reiterated.
59. In relation to the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No. 3) 1992, this explains why the change was enacted. The amendment was to overcome the effect of the Full Federal Court decision in Secretary, Department of Social Security v O’Connell and Secretary, Department of Social Security v Sevel (supra). Its purpose was to limit arrears of income support payments even though the Explanatory Memorandum in relation to that amendment inserting section 1302A into the Act, refers to “Family Allowance” and a change of address, it is not limited to these circumstances as section 1302A is a general provision which is applied to all payment types and circumstances.
60. In conclusion, Ms Fahey submitted that the decision of the SSAT dated 18 May 2001 that arrears of Youth Allowance are not payable to the Applicant should be affirmed.
FINDINGS
61. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law.
62. The Tribunal finds, at the outset, that JKLRS was a credible witness and accepts that she provided truthful evidence.
63. Central to this matter is a notice dated 20 December 1999 which the Respondent states was sent to JKLRS by prepaid post. The notice contained details of the departmental decision to cancel JKLRS’s Youth Allowance from 30 December 1999. Another notice was sent on 21 December 1999, also cancelling the Youth Allowance but from 21 December 1999. Both letters contained details about JKLRS’s right of review and noted that if she did not ask for a review within three months, she may only receive payment, if successful on review, from the date she sought the review. Both letters also contained information that JKLRS may be eligible for a low income Health Card, which JKLRS subsequently successfully applied for in April 2000. The letters were addressed to JKLRS at Bardia Street, as were all notices, up until the ARO wrote to JKLRS on 16 February 2001 at Bardia Road (T23). The Tribunal notes that JKLRS provided the Tribunal with her address as being Bardia Road and not Bardia Street. She has however not claimed that she did not receive any notices, either prior to or after the period under review, apart from the notices of 20 and 21 December 1999.
64. JKLRS stated that the notice, as reproduced in the computer print out at T13, p85, is not a contemporaneous record of the notice sent to her. JKLRS referred the Tribunal to Re Secretary, Department of Family and Community Services and Thipthorp (supra) and asked the Tribunal to rely on this case as being relevant to her own circumstances. The Tribunal distinguishes that case however from JKLRS’s case, as it can find no evidence in all of the available material, to convince it on the balance of probabilities, that the letter sent to her on 20 December 1999 is not a true and faithful copy of the notice of the decision sent to JKLRS.
65. The Tribunal also finds that the notice had been addressed to JKLRS’s proper address as had previous notices. There is no evidence that JKLRS asked Centrelink to address her mail to Bardia Road, as distinct from Bardia Street. This issue was not raised at Hearing. JKLRS was living at Bardia Road for a number of years prior to 20 December 1999. Centrelink letters addressed to her at Bardia Street had, on the available evidence, reached her apart from the two from Centrelink letters dated 20 and 21 December 1999. JKLRS’s evidence was that in the three or so years that she lived at that address, there had been approximately two occasions per year when there were difficulties with mail, for example, being put incorrectly in her mailbox or letters for the family being incorrectly put in other people’s mailboxes. There was a problem with international letters from Iran in December 1999 or January 2000, but JKLRS was clear in her evidence that there were no problems with domestic mail at that time and the family was not aware of any domestic letters not being delivered. JKLRS also provided evidence that there was no contact made with Australia Post to complain about any mail delivery problems.
66. JKLRS put to the Tribunal that the letter was not sent and certainly it was not received. Section 1302A of the Act, in force as at 20 December 1999, provides that if a notice of decision is, as is relevant to JKLRS’s circumstances, sent by pre-paid post to the last known address of a recipient, notice of the decision is taken to have been given to that person. There is nothing contrary, the Tribunal finds, which has been proved that the notice was not given. The Tribunal notes the legislative history of section 1302A of the Act and the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 3) 1992 concerning the intention of Parliament to deal with the Full Federal Court decision in Secretary, Department of Social Security v O’Connell and Secretary, Department of Social Security v Sevel (supra). The Tribunal has already found that JKLRS is a credible witness and similar to the findings in Re Catt and Secretary, Department of Family and Community Services (supra), that in this case, JKLRS did not receive the notice. The Tribunal finds that section 1302A of the Act applies as does subsection 23(12)(a) of the Act. The Tribunal finds that the notice was given, even if JKLRS did not receive the letter as has been dealt with by the legislation. The Tribunal, although very sympathetic to JKLRS’s circumstances, is bound to apply the legislation and cannot, on all of the evidence, apply any discretion to find that the letter was not “given to JKLRS”. Similar findings have been expressed by various Tribunals for example in Re Secretary, Department of Social Security and Manley (supra), Re Secretary, Department of Family and Community Services and Warby (supra) and Re Bone-Thompson and Secretary, Department of Social Security (supra).
67. In Re Secretary, Department of Family and Community Servicesand Wilkinson [1999] AATA 163, that Tribunal decided, pursuant to subsection 1302A(3) of the Act, that it was proven to the contrary that the notice of the decision in that case was taken to have been given to the person at the time which the letter would have been delivered in the ordinary course of the post. In JKLRS’s case, the Tribunal can find no proof to the contrary that the notice was not given, given that the Tribunal has found that the letter was properly addressed and there were no problems at that time with domestic post. The Tribunal also notes that JKLRS was put on notice by a telephone communication between herself and a Centrelink Officer on 13 December 1999, that she must lodge fortnightly forms declaring income (T9).
68. Having decided that the letter was properly given, the Tribunal must determine whether or not there are any circumstances to allow arrears of Youth Allowance to be made from 16 December 1999, the date Youth Allowance ceased, until 27 April 2000, the day before compensation for defective administration was paid. I am satisfied that as at 20 December 1999, JKLRS was in fact still eligible to receive Youth Allowance, as conceded by the Department. Whether this error can be remedied for the Applicant, depends on the application of the law to the particular facts of JKLRS’s case.
69. A request for review of the decision to cancel Youth Allowance was made on 26 June 2000. This falls after the 20 March 2000 when the Administration Act commenced. Section 109 of the Administration Act provides that in circumstances where notice of a decision is given to a person and the person requests a review of the decision more than 13 weeks after that decision, then the date of effect of any favourable decision on review is the date the actual review is sought. The legislation is clearly restrictive and also clear in its intention. The Department has, appropriately in the Tribunal’s view, removed some of JKLRS’s concerns by deciding to provide compensation to be paid for defective administration which has the effect of arrears of Youth Allowance being paid to JKLRS from 28 April 2000. The Respondent‘s submission then is that no arrears of Youth Allowance can be paid between 16 December 1999 and 27 April 2000.
70. The Tribunal finds that JKLRS did not request a review within 13 weeks of the information provided to her and accordingly, applying the legislation, there can be no arrears paid back to 16 December 1999. The Tribunal distinguishes JKLRS’s case with the facts contained in Re Estate of Thomas Biggin and Secretary, Department of Family and Community Services (supra).
71. Ms Fahey provided an alternative submission in relation to section 1243A of the Act. As was noted in the Explanatory Memorandum to the Social Security Amendment Bill (No 2) 1993, this provision was inserted into the Act with the purpose of further limiting the payment of arrears in relation to departmental benefits, allowances and pensions, not just Family Payments. The section as read in the legislation indicates that it is a general section. As the Tribunal understands section 1243A of the Act, once a decision has been made to cancel a Social Security payment, unless there is a request for review within 13 weeks of the notice of a decision or determination then arrears cannot be paid. Even though the decision to cancel JKLRS’s Youth Allowance was not the correct and preferable decision, by applying subsections 1243A(1)(h) and (i) of the Act, a setting aside of the original unfavourable decision, does not invoke the original determination that JKLRS was qualified to receive Youth Allowance from the date of cancellation. Thus, the application of section 1243A of the Act with the 13 week rule, prevents, in the Tribunal’s view, the payment of arrears back to the date of cancellation.
72. The Tribunal finds that the determination of the SSAT of 18 May 2001 is correct. The Tribunal finds that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is affirmed, but notes that the effect of the decision under review has been ameliorated by the Respondent’s recent decision to pay the Applicant compensation for defective administration for the period 28 April 2000 until and including 25 June 2000.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.
Signed:.....................................................................................
Associate
Date of Hearing 19 December 2001
Final Written Submissions 5 February 2002
Date of Decision 19 September 2002
Representative for the Applicant Self-Represented
Representative for the Respondent Ms S Fahey, Departmental Advocate
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