Lane; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1959

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1959

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/3828

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And SHARON LANE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date16 November 2007

PlaceMelbourne

Decision

The decision under review is set aside and in substitution IT IS DECIDED

(i)        The respondent was not entitled to newstart allowance between 15 and 21 December 2006; and

(ii)       The application is remitted to the applicant for consideration in accordance with these reasons.

(Sgd)  John Handley
Senior Member

  

SOCIAL SECURITY – respondent a casual relief school teacher – last day worked in 2006 was 19 December – telephone enquiries made of Centrelink on 15 and 21 December of newstart allowance entitlement during Christmas period – written application made on 4 January 2007 – SSAT decided respondent entitled to newstart allowance between 15 and 21 December – decision set aside – respondent not then unemployed or able to satisfy the activity test

Social Security Act 1991 (Cth) s 593 and s 601

Social Security (Administration) Act 1999 (Cth) s 13 (1), (2), (3), (3A), and s 16

REASONS FOR DECISION

16 November 2007   Mr John Handley, Senior Member

1.      The respondent lodged an application to review a decision made by the Social Security Appeals Tribunal made on 13 July 2007.  The Social Security Appeals Tribunal (SSAT) was then reviewing a decision made by an authorised review officer (ARO) to reject a claim for newstart allowance (NA) made on 15 December 2006.  The SSAT decided to vary that decision.  It decided that the respondent qualified for newstart allowance between 15 and 21 December 2006 but not subsequently.  Both parties to this review agreed that the matter should be decided on the papers. Both parties lodged extensive written submissions prior to these reasons being prepared. Additionally, the applicant lodged a number of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

2.      At all relevant times prior to 15 December 2006, the respondent obtained work as a casual relief school teacher.  She was paid for working only on the days where she was engaged by schools as a casual employee.  The last day worked in 2006 was on 19 December.

3.      Apparently, in anticipation of not being engaged as a relief teacher beyond 21 December 2006, being the last day of the Victorian school term, the respondent made a telephone enquiry of Centrelink as to her eligibility for NA payments (refer T‑documents, pp12, 28, 120 and 121).

4.      On 21 December 2006, the respondent made another telephone enquiry of Centrelink and attended the Sunbury office of Centrelink again enquiring as to eligibility for NA (refer T‑documents, pp28 and 118).

5.      On 4 January 2007, the respondent lodged a written application for NA (T5).

6.      The T‑documents contain a number of letters written by the respondent to Centrelink submitting that she visited her mother, grandmother and other members of her extended family in Newcastle each Christmas.  She submitted that the annual visit was in the nature of a tradition for all members of her family to then meet.  Additionally she submitted that in the absence of NA being paid she would be without income.  It was also submitted that she was entitled to have a holiday once yearly.

7. For the purposes of this review, s 593 of the Social Security Act 1991 (the Act) provides that a person qualifies for NA if they are unemployed and if they satisfy the activity test.

8.      A person will satisfy the activity test under s 601 of the Act if they are actively seeking and willing to undertake paid work in Australia.

9. The written claim for NA made on 4 January 2007 is of significance. The enquiries made prior to that date (on 15 and 21 December 2006) may be deemed to be the date of a claim being made only if the provisions of s 13 (1) of the Social Security (Administration) Act 1999 (the Administration Act) are satisfied. That section provides that if a person:

·     contacts a Centrelink office enquiring about a social security payment; and

·     the person is qualified on that day for the payment; and

·     a written acknowledgement is given to the person about the contact; and

·     a claim is lodged within 14 days after Centrelink is contacted

a claim is deemed to have been made on the day of contact. If a medical condition or special circumstances prevented compliance with the requirement to lodge a claim within 14 days, that period may be extended (refer s 13 (2), (3) and (3A)).

10. The written claim (in compliance with s 16 of the Administration Act) was lodged on 4 January 2007. A period of 14 days after 15 December 2006 expired 30 December 2006. The contact therefore made on 15 December 2006 cannot be deemed to be the date of a claim.

11.     The enquiry made on 21 December 2006 is within 14 days of 4 January 2007 but it would be my view that the respondent from that date did not, in any event, qualify for payment of NA.  The respondent from that date was unemployed but there is nothing which points to her then satisfying the activity test.  That is to say, there is no evidence that the respondent on, or from, 21 December 2006 was actively seeking paid work nor any evidence that she was actually willing to undertake paid work.

12. Even if the date of 15 December 2006 applied, I would find, as I have found with respect to the enquiry of 21 December 2006 that the respondent did not then qualify for NA and therefore probably cannot take advantage of the provisions of s 13 (1) (b) of the Administration Act.

13.     From the documents read, it appears the respondent is a casual relief school teacher and holds herself available to work, on days when engaged by schools.  When not engaged, I think she is probably under employed and nothing points to her, on those occasions being able to satisfy the activity test.  Certainly, at the end of a school year, when she would not have been engaged at all, in the absence of satisfying the activity test, there would not be an entitlement to NA.

14.     NA is not payable to persons who undertake travel or holidays as submitted by the respondent (refer paragraph 6 earlier).  Compliance with the activity test could not, in those circumstances, be satisfied.

15.     The SSAT decided that from 9 January 2007 she applied for job vacancies and it may be that she qualified for NA from that date.  That is not a matter under review.  The first part of the decision under review concerns entitlement to NA between 15 and 21 December 2006.  That decision must be set aside for the above reasons.  (Additionally, and for the reasons expressed in the previous paragraph, the respondent did work on 19 December  - refer p24 – at the least, on that day, she was not unemployed).  The remaining decision under review is a suspension of NA between 22 December 2006 and 9 January 2007.  That is not the subject of an appeal by the respondent.  The expression suspension has a meaning not immediately apparent to me because entitlement to NA is dependent on satisfaction of the legislative provisions referred to above.

16.     I would therefore set aside the decision under review and remit the matter to Centrelink for consideration in accordance with these reasons.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing on the Papers      13 November 2007
Date of Decision  16 November 2007