Madeleine Gizycki and Secretary, Department of Social Services
[2015] AATA 382
•29 May 2015
[2015] AATA 382
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0207
Re
Madeleine Gizycki
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 29 May 2015 Place Melbourne The decision under review is affirmed.
[sgd].................................................................
Deputy President F J Alpins
Catchwords
SOCIAL SECURITY – youth allowance – automatic cancellation for failure to provide statement by operation of s 95(1) of the Social Security (Administration) Act 1999 – discretion to determine that s 95(1) does not apply - whether “special circumstances” – whether appropriate to exercise discretion
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 43
Social Security Act 1991 (Cth) ss 23, Pt 2.11
Social Security (Administration) Act 1999 (Cth) ss 3, 4, 41, 42, 85, 95, 103, 109, 123, 237, Sch 2Cases
Australian Securities and Investments Commission v Donald (2003) 77 ALD 449
Beadle v Director-General of Social Security (1985) 7 ALD 670
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Haidar v Secretary, Department of Social Security (1998) 52 ALD 255
Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281
Polydorou v Secretary, Department of Social Services [2014] FCA 1059
Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103
Secretary, Department of Family and Community Services v Sammut (1999) 58 ALD 691
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Trimboli v Secretary, Department of Social Security (1989) 17 ALD 201REASONS FOR DECISION
Deputy President F J Alpins
29 May 2015
INTRODUCTION
This application for review concerns the applicant’s entitlement to youth allowance during the period 3 May 2013 to 2 October 2013 (the “relevant period”) given that it was cancelled with effect from the earlier date by operation of s 95(1) of the Social Security (Administration) Act 1999 (the “Administration Act”) for failure to comply with a notice given under s 68(2) of that Act requiring the furnishing of statements concerning her entitlement to receive that allowance.
The essential issue before the Tribunal is whether the circumstances of this case constitute “special circumstances” within the meaning of that expression as employed in s 95(2) of the Administration Act and, if so, whether the discretion conferred by that provision should be exercised, so as to relieve the applicant, Ms Madeleine Gizycki, from the application of s 95(1). A further issue also arises from the terms of s 95(2) as to the date from which any determination made under that provision should have effect.
FACTS AND PROCEDURAL HISTORY
On 1 January 2013, Ms Gizycki was granted youth allowance, on the basis that she was a full-time student. By letters both dated 2 January 2013, Centrelink informed Ms Gizycki that her requests to appoint her mother, Mrs Sophie Gizycki, as her correspondence nominee and as her payment nominee respectively had been approved. It was therefore not in dispute that copies of correspondence sent to Ms Gizycki during the period relevant to this proceeding were also sent to Mrs Gizycki as her correspondence nominee, with one exception to which I refer shortly in these reasons.
By a further letter also dated 2 January 2013, Centrelink informed Ms Gizycki that she was obliged, as a recipient of youth allowance, to make “reporting statements”, that is to say, to report to Centrelink (amongst other things immaterial for present purposes) on each of her “reporting days”, being the last day of each fortnightly period specified in that correspondence, any employment income she had earned during the preceding fortnight. The periods covered began with the fortnight ending 10 January 2013 and finished with the fortnight ending 21 March 2013. I note that Ms Gizycki did earn employment income during the relevant period, which was apparently paid on a fortnightly basis.
The relevant Centrelink records before the Tribunal appear to be limited to the periods covered by that correspondence ending 7 March 2013 and 21 March 2013. They indicate that Ms Gizycki was slightly late in reporting for both periods – she reported on 8 March and 25 March respectively.
By a letter dated 25 March 2013, Centrelink informed Ms Gizycki that she was obliged to make reporting statements as I have described for reporting periods subsequent to those which were the subject of its relevant correspondence dated 2 January 2013. Those periods began with the fortnight ending from 4 April 2013 and ended with the fortnight ending 13 June 2013. The Centrelink records establish that Ms Gizycki did not report for the period ending 4 April 2013 until 13 April 2013. Consequently, Centrelink informed Ms Gizycki by letter dated 3 May 2013 that her youth allowance had been cancelled from 5 April 2013.
On 9 May 2013 Ms Gizycki contacted Centrelink and her youth allowance was, as recorded, “restored” on the basis that she “forgot to report”. As she had not yet done so, that same day Ms Gizycki reported for the periods ending 18 April 2013 and 2 May 2013. By letter dated 9 May 2013, Centrelink informed Ms Gizycki that payment to her of youth allowance would resume, from 5 April 2013.
Although Ms Gizycki was next required to report on 16 May 2013 (again, for the period comprising the preceding fortnight), she did not do so. In fact, for reasons which will become apparent, she did not report again until October 2013.
For some immaterial reason, apparently connected to Ms Gizycki’s lodgement of a claim for a health care card on or about 5 May 2013 or the granting of that claim, Ms Gizycki was then informed, by letter dated 22 May 2013, that “from payment date 31/05/2013” she was no longer required to lodge reporting statements in order to receive payments of youth allowance. (I note that Ms Gizycki had previously made such a claim, on 17 May 2012.)
I come now to the critical correspondence, which founds the decision under review.By letter dated 31 May 2013, Centrelink informed Ms Gizycki that her youth allowance had been cancelled from 3 May 2013 because she had failed to report. It is apt to note at this point that Ms Gizycki gave evidence that she never received that letter. Furthermore, Mrs Gizycki, being her correspondence nominee, gave evidence that she never received correspondence to that effect, nor did she receive or see the letter addressed to her daughter.
For reasons I address later, it was not until late September 2013 that Mrs Gizycki discovered that her daughter had not received any payment of youth allowance after the payment relating to the period ending 2 May 2013, which was made on or about 10 May.
On 3 October 2013, Ms Gizycki contacted Centrelink and claimed youth allowance. By letter dated 22 October 2013, Centrelink informed Ms Gizycki that “a decision has been made that you will be paid Youth Allowance from 3 October 2013”.
The decision made on 31 May 2013 to cancel Ms Gizycki’s youth allowance from 3 May 2013 (see ss 95 and 103 of the Administration Act, set out below) was affirmed by a Centrelink authorised review officer; consequently, Ms Gizycki appealed to the Social Security Appeals Tribunal (the “SSAT”), which affirmed the respondent’s decision. This application for review therefore concerns the respondent’s decision as affirmed by the SSAT (s 179(2) of the Administration Act).
LEGISLATION
Entitlement to youth allowance is governed by Part 2.11 (ss 540 – 567G) of the Social Security Act 1991 (Cth) (the “Act”). Section 68 of the Administration Act relevantly provides:
“(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 any or all of the following:
...
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment[.]”
The expression “social security payment” is defined in s 23 of the Act (and for the purposes of the Administration Act: see s 3 of the Administration Act) to include youth allowance.
Section 95(1) of the Administration Act provides for the automatic cancellation of social security payments for failure to comply with a notice given under s 68(2). Section 95(2) confers on the Secretary a discretion to relieve a person from the application of s 95(1) if the Secretary “is satisfied that in the special circumstances of the case, it is appropriate to do so”, with either retrospective or prospective effect (s 95(3)). Section 95 provides as follows:
“(1) If:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b)the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c)the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(2)If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.
(3)The day specified under subsection (2) may be before or after the making of the determination.”
Section 123(1)(d) of the Administration Act relevantly provides that a determination that a person’s claim for a social security payment is granted or that a social security payment is payable to a person continues in effect until the payment ceases to be payable under s 95 of that Act.
I note that where the cancellation of a social security payment by operation of s 95(1) is given effect by operation of a computer program (and that payment is received on the basis of computer data), the respondent is deemed to have made a determination that s 95(1) applies to the person’s social security payment, on the day on which the cancellation took effect (see s 103 of the Administration Act).
Section 237 of the Administration Act prescribes what constitutes notice of decisions for the purposes of the social security law (of which the Administration Act forms part: s 4 of the Administration Act). A “decision” relevantly includes the making of a determination (by operation of s 23 of the Act (and s 3 of the Administration Act), which adopts the meaning given to that term in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth)). Section 237 relevantly provides:
“(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.
...”
RELEVANT PRINCIPLES
In construing s 95(2) of the Administration Act, assistance can be derived from authorities concerning analogous provisions such as those cited below, although ultimately the provision must be construed according to its own terms. In my view, s 95(2) involves a two-stage decision-making process. It is first necessary to determine whether the circumstances in question constitute “special circumstances” within the terms of the provision. If so, it is then necessary to consider whether the discretion conferred by that provision should be exercised, so as to determine that s 95(1) does not apply to the social security recipient in question (see Secretary, Department of Family and Community Services v Sammut (1999) 58 ALD 691 at [21] per Branson J and Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [19] per French J).
The “concept of special circumstances is broad [and] [a] constellation of factors, including financial circumstances, may fall within it” (Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 162 per French J). The question of whether circumstances are “special circumstances” is to be determined according to the particular facts of any given case (Trimboli v Secretary, Department of Social Security (1989) 17 ALD 201 at 209 per Hill J; Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at [35] per French J; see Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674 (Full Court); Woodward and Beaumont JJ agreeing).
In Beadle at 674, the Full Court said that “[t]he phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss”. The word “special” in the context in which it is employed in s 95(2) of the Administration Act “is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened” (Boscolo at [18] per French J). For there to be “special circumstances”, the case must involve something unusual or different (ibid; Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J), but it need not be an extremely unusual, uncommon or exceptional case (Boscolo at [18], citing Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32).
Special circumstances will exist where the cancellation of a social security payment by operation of s 95(1) is unfair or inappropriate or has unintended consequences (Groth at 545; Haidar v Secretary, Department of Social Security (1998) 52 ALD 255 at 264 per Hill J, citing Beadle at 673-674). In my view, s 95(2) of the Administration Act is an ameliorative provision which allows for the harshness of the automatic cancellation of a social security payment by operation of s 95(1) to be alleviated in appropriate cases involving special circumstances (see Haidar at 263-264 and Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281 at [22] per Mansfield J).
In accordance with general principles, the broad discretion granted under s 95(2) of the Administration Act is to be exercised bona fide and for the purposes for which it is conferred as discerned by reference to the policy and purpose of the Administration Act, which forms part of the social security law (see Trimboli at 209 per Hill J and Beadle at 674).
In any event, as will be apparent from the principles set out above, each case turns on its own facts, which are to be considered holistically.
ISSUES AND SUBMISSIONS BEFORE THE TRIBUNAL
Before turning to Ms Gizycki’s submissions, it is necessary to say something about the basis upon which the decisions of the Centrelink authorised review officer and the SSAT were made. Each of those decisions were made not by considering the exercise of the discretion under s 95(2) of the Administration Act but rather by considering the application of s 109 of the Administration Act, which provides for the determination of the date of effect of a “favourable determination” resulting from an application for review made under s 129 of the Administration Act.
The essential issue considered for that purpose was when the presumed “favourable determination” took effect – whether it was when the decision to cancel Ms Gizycki’s youth allowance took effect or when the application for review was made. Given the terms of s 109, the matters considered by the authorised review officer and the SSAT for the purpose of that provision were whether Ms Gizycki had been given a notice informing her of the decision made on 31 May 2013 to cancel her youth allowance from 3 May 2013 and whether she had applied within 13 weeks after the notice was given for review of that decision.
However, as the respondent properly conceded before the Tribunal, s 109 has no application to the circumstances of this case, as there has been no “favourable determination” for the purposes of that provision. A “favourable determination” is defined in s 108 of the Administration Act to include a determination under s 85 thereof, being the only provision of any possible relevance. Section 85 concerns the resumption of social security payments upon reconsideration by the Secretary where they have been cancelled (or suspended) under various provisions of the Administration Act – however, those provisions do not include s 95. It is clear from the express terms of s 95 that automatic cancellation of social security payments by operation of s 95(1) instead raises for consideration the question of the exercise of the discretion conferred by s 95(2).
The Tribunal is reviewing the decision of the SSAT (which is taken to be decision reviewed by the SSAT as affirmed (s 179(2)(a) of the Administration Act)), not the manner in which it was made. Nevertheless, it is necessary in the context of this case to point to what was in my view, with respect, an erroneous approach taken by the authorised review officer and the SSAT in making their decisions to affirm the decision to cancel Ms Gizycki’s youth allowance, because it is manifestly apparent that the exercise of the discretion conferred by s 95(2) has not been considered at any stage prior to review by the Tribunal. That raises a preliminary question as to whether the Tribunal is empowered to exercise that discretion in circumstances where its exercise has not previously been considered upon review.
I have concluded that the Tribunal is so empowered, given that s 43(1) of that Administrative Appeals Tribunal Act 1975 (Cth) empowers the Tribunal to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”, provided that it does so “[f]or the purposes of reviewing a decision”. As the exercise of the discretion in s 95(2) is relevant to the making of the original decision, which was to cancel Ms Gizycki’s youth allowance, it follows that the Tribunal may exercise that discretion: Hodgson at 38-40 per Hill J. The Tribunal “is not confined to the decision-making power upon which the previous decision-maker actually relied in making the decision under review, but is armed with all the powers and discretions of the original decision-maker that are relevant to the review” (Australian Securities and Investments Commissioner v Donald (2003) 77 ALD 449 at 455 per Kenny J, Gray J agreeing).
I note that the parties took the opportunity given to them by the Tribunal to lodge further material directed towards the application of s 95(2) of the Administration Act. Furthermore, oral evidence was given by Ms Gizycki and Mrs Gizycki directed towards the true issue before the Tribunal when the matter resumed for further hearing. Ms Gizycki and Mrs Gizycki were cross-examined. Both parties then made oral submissions concerning the application of s 95(2).
Ms Gizycki submitted in effect that her circumstances constituted “special circumstances” within the terms of s 95(2) and that the discretion conferred by that provision to relieve her from the cancellation of her youth allowance with effect from 3 May ought to be exercised in her favour. Ms Gizycki contended in substance that in the circumstances she should therefore be entitled to receive youth allowance with respect to the relevant period.
The gist of Ms Gizycki’s case was that neither she, nor her mother as her nominee, had received any notification that her youth allowance had been cancelled on 31 May 2013. She had not become aware of the cancellation until about late September 2013, when her mother registered for Centrelink’s online services and discovered that she had not received any payments of youth allowance since May 2013. Consequently, Ms Gizycki claimed youth allowance again on 3 October 2013.
Ms Gizycki submitted in substance that it was the respondent’s fault that these events had occurred because it had notified her by its letter dated 22 May 2013 (which she had received) that she was no longer required to make reporting statements, she had relied on that statement and as a consequence her youth allowance had been cancelled on 31 May 2013. Furthermore, the respondent had failed to advise her mother, as nominee, that her youth allowance had been cancelled when her mother had contacted Centrelink (particularly in August 2013) about family tax benefits and related matters prior to discovering that her youth allowance had been cancelled.
Furthermore, Ms Gyzycki submitted in substance that her family suffered “severe” financial hardship during the period that she did not receive youth allowance and that she therefore was very dependent on receipt of that allowance.
Although there was little focus on the submission (nor any evidence supporting it), Ms Gyzycki also relied on the fact that she suffers from Tourette’s syndrome, which requires that she take medication daily in order to manage her symptoms. Reference was made in a document setting out Ms Gyzicki’s submissions to a medical certificate said to have been prepared by her general practitioner, in which he apparently said that her condition “can impact on her organisational skills”. However, as I have indicated, no such certificate or other related evidence was before the Tribunal. In any event, even if there had been such evidence, it would not have altered my conclusion, for the reasons that follow.
I note for the sake of completeness that Ms Gizycki also contended in substance that, given the cancellation of her youth allowance, the respondent had failed to pay her a Student Start-Up Scholarship (which is intended to assist in meeting the cost of undertaking study) to which she was entitled during the period 3 May 2013 to 2 October 2013, relying in that regard upon Centrelink’s letter dated 22 October 2013 concerning the granting of youth allowance from 3 October 2013, which also granted that benefit. However, as any such entitlement falls outside the confines of the decision under review and accordingly does not arise for consideration in this proceeding.
CONSIDERATION
It was not in dispute that Ms Gyzicki was qualified for youth allowance during the relevant period. Nor was there any real dispute that her youth allowance had been cancelled in accordance with s 95(1) of the Administration Act. As I have indicated, the essential issue was whether the Tribunal ought to exercise the discretion conferred by s 95(2) to determine that s 95(1) not apply. If so, the further issue which would necessarily arise for consideration was what date should be selected as the date from which the determination under s 95(2) would have effect.
It is convenient to address first Ms Gyzicki’s submission that the circumstances of her case constitute “special circumstances” because her failure to report which resulted in the decision made on 31 May 2013 to cancel her youth allowance was a consequence of her reliance on Centrelink’s statement in its letter dated 22 May 2013 that she no longer needed to do so. At first blush, that appears to be a compelling submission. However, the factual assumption founding the submission is incorrect.
Upon careful consideration of the chronology of events and the Centrelink correspondence and records before the Tribunal, it is clear that Ms Gyzicki’s failure to report which resulted in the decision to cancel her youth allowance on 31 May 2013 could not possibly be attributable to any reliance on the content of Centrelink’s letter of 22 May. Ms Gyzicki’s youth allowance was cancelled with effect from 3 May 2013 because she failed to report for the period commencing that day and ending on 16 May 2013. She was required to do on 16 May 2013, well before Centrelink’s letter dated 22 May 2013. That letter concerned a subsequent period in any event, being from payment date 31 May 2013. It is evident from the documents before the Tribunal that that payment date concerned a period subsequent to that ending 2 May 2015, as the payment date for that earlier period was 10 May 2013, being the last date upon which Ms Gyzicki received youth allowance prior to the further grant in October 2013. As I have said, the correspondence of 22 May was a consequence of the granting to Ms Gizycki of a health care card on or about 5 May.
As I have indicated, prior to the cancellation of her youth allowance on 31 May 2013, Ms Gizycki had in fact been habitually late in making the requisite reporting statements. It was for that reason that her youth allowance had been cancelled on 3 May 2013, with effect from 5 April 2013. However, on that occasion Centrelink had resumed her payments once she reported for that period. It was not until then that she reported for the periods ending 18 April 2013 and 2 May 2013. As I have indicated, her failure to report for the next period, ending 16 May 2013, resulted in the decision to cancel her youth allowance the subject of this proceeding.
Under cross-examination and in answer to questions posed by the Tribunal, Ms Gyzicki frankly acknowledged that her lateness in reporting and her failure to report for the period which resulted in the cancellation of her youth allowance on 31 May was attributable to the fact that she was preoccupied with her studies and her part-time job and simply forgot to do so. In answer to questions posed by the Tribunal, Mrs Gyzicki frankly admitted that she had not reported on her daughter’s behalf despite being authorised to do as her correspondence nominee because neither she nor her daughter had ever read the correspondence dated 2 January 2013 which informed her that she could do so.
As I have indicated, much of Ms Gizycki’s case also rested on her and her mother’s evidence that neither of them had received Centrelink’s letter dated 31 May 2013 informing Ms Gyzicki that her youth allowance had been cancelled. I note that there was no dispute that the letter was addressed to Ms Gyzicki’s correct address.
However, the respondent relied upon a witness statement made by Ms Vicki Selby in order to establish that the requisite elements of s 237 of the Administration Act were satisfied. I am satisfied on the basis of that evidence that they were. Accordingly, notice of the decision made on 31 May 2013 to cancel Ms Gizycki’s youth allowance is taken, “for the purposes of the social security law”, to have been given to Ms Gizycki.
As the Administration Act forms part of the social security law (see ss 3(3) and 4 of the Administration Act), it follows in my view that notice of the decision is deemed to have been given to Ms Gizycki for the purposes of s 95(2) of the Administration Act. There is nothing in the text, context or purpose of s 95(2) which suggests that s 237 does not apply for the purposes of that provision. Consonantly, it follows in my view that failure to receive a letter giving notice of the cancellation of a social security payment by operation of s 95(1) cannot constitute nor form part of “special circumstances” for the purposes of s 95(2). I accept the respondent’s submission that such a construction would subvert the legislative intention underlying that deeming provision.
In Polydorou v Secretary, Department of Social Services [2014] FCA 1059 at [34], Mortimer J explained the purpose of s 237 as follows:
“It is not difficult to understand the applicant’s bewilderment at the effect of a deeming provision such as s 237 of the Administration Act. Where continued access to social security payments depends on seeking review upon notification of an adverse decision, it is difficult for a person in the applicant’s position to understand how a legal fiction that he had notice of the adverse decision is allowed by the law to operate to his detriment. Nevertheless, that is what the Administration Act provides, for reasons no doubt related to consistent and predictable administration of the legislative scheme for social security payments.” (Emphasis added.)
In any event, given that s 95 of the Administration Act applies to the facts of this case, the issue of whether notice was given to Ms Gizycki of the decision to cancel her youth allowance is of somewhat lesser import given the constellation of factors to be considered for the purposes of s 95(2) compared with the import of that issue in the context of s 109, which raises the particular question of whether a person applied for review of the adverse decision within 13 weeks of notice being given informing them of that decision.
Furthermore, even if s 237 did not apply, Ms Gizycki’s and her mother’s evidence that they did not receive Centrelink’s letter informing them of the cancellation of her youth allowance only serves to explain why it was not until late September 2013 that either of them discovered that Ms Gizycki had not received any payment of youth allowance since May to a certain extent.
In seeking to explain why she had not realised until late September 2013 that her daughter had not received any payment of youth allowance since May 2013, Mrs Gizycki relied on an extract from a bank statement which established that Ms Gizycki’s youth allowance was paid into the same bank account as her sister’s youth allowance and a family allowance. Mrs Gizycki gave evidence that she had not noticed that Ms Gizycki’s payments had ceased because she had not checked the bank statements during that time and because the balance of the account never reduced to zero. Furthermore, Mrs Gizycki explained that she was distracted during the relevant period by a proceeding she and her husband had brought in the Victorian Civil and Administrative Tribunal concerning their home.
I turn now to question of the application of s 95(2) of the Administration Act. I have carefully considered the documentary and oral evidence before the Tribunal in its totality. Furthermore, I have carefully considered the detailed written submissions and oral submissions made on Ms Gizycki’s behalf by her mother. After doing so, I have concluded that the circumstances of this case do not constitute “special circumstances” for the purposes of s 95(2). Accordingly, the statutory discretion is not enlivened. Even if it were, I do not think it is “appropriate” for the purposes of that provision to exercise the discretion.
In my view, Ms Gizycki’s considerable indignation, as expressed by her mother on her behalf, about the circumstances in which her youth allowance was cancelled is misconceived. As I have indicated, it is predicated on the false assumption that the cancellation came about because Ms Gizycki relied on Centrelink’s statement that she was no longer required to report. As I have said, it is clear from the evidence that the cancellation occurred simply because Ms Gizycki failed to report. She had been late in doing so on successive occasions since she was granted youth allowance. Furthermore, she had been relieved from the consequences of a prior cancellation by Centrelink prior to the cancellation in issue. She must therefore have known what the consequences of failure to report were at the time when the decision to cancel her youth allowance was made.
As I have said, despite the fact that Mrs Gizycki was her daughter’s correspondence nominee (and payment nominee), she did not report on her behalf because she failed to read the correspondence telling her that she could do so.
Leaving aside the fact that Ms Gizycki’s evidence indicated that her failure to report was not attributable to her medical condition, as I have indicated that condition would not give rise to special circumstances in this case in any event as Mrs Gizycki could have reported on her daughter’s behalf.
Furthermore, in my view the fact that neither Ms Gizycki nor her mother noticed that she had not received any payments of youth allowance since May 2013 until late September was in my view attributable to their own conduct. Mrs Gizycki chose not to check her bank statements. If she had done so, she would have seen clearly that the amounts in question were not being received. She instead chose to give priority to other matters such as instituting proceedings at the Victorian Civil and Administrative Tribunal.
In that regard I note in passing that although the respondent appeared to concede at the hearing that the information contained in the letter dated 22 May 2013 to the effect that Ms Gizycki was no longer required to report was erroneous, that was seemingly based on the assumption that that letter resulted in the decision to cancel Ms Gizycki’s youth allowance made on 31 May 2013. As that assumption is incorrect given that, amongst other things, the letters were concerned with different periods, it follows in my view that it cannot be assumed that the information in the letter of 22 May was erroneous; as I have indicated, it apparently was sent as a consequence of the granting of Ms Gizycki’s health care card.
As I have indicated, Mrs Gizycki contended on her daughter’s behalf that the respondent was obliged to notify her that her daughter’s youth allowance was cancelled when she contacted Centrelink by telephone in August 2013 to deal with her family tax benefit entitlements. Leaving aside the fact that I am not satisfied on the material before the Tribunal that a Centrelink officer dealing with Mrs Gizycki’s call would necessarily have been aware that Ms Gizycki’s youth allowance had been cancelled, as I have said I am satisfied that the respondent notified Ms Gizycki of the cancellation of her youth allowance for the purposes of the Administration Act. There was no obligation on the respondent to inform Mrs Gizycki (again) that Ms Gizycki’s youth allowance had been cancelled in the context of her telephone inquiry made in August 2013.
Although in my view financial hardship is a relevant factor in considering whether there are “special circumstances” for the purposes of s 95(2) of the Administration Act, given the evidence before the Tribunal concerning the financial circumstances of Ms Gizycki and her family, I find that no such financial hardship, severe or otherwise, existed for the purposes of this case. As the respondent submitted, one indication of that is the fact that it took so long for Ms Gizycki and her mother to discover that she was not receiving youth allowance. Furthermore, that discovery was made essentially by chance, not because Ms Gizycki was short of funds. If Ms Gizycki had been as dependent on receipt of her youth allowance as was submitted on her behalf, it is reasonable to assume that she or her mother would have discovered that her youth allowance had been cancelled far earlier than they did.
Given my conclusions about the application of s 95(2) to the circumstances of this case, it is unnecessary for me to consider the further issue of the date from which any determination made under s 95(2) should have effect. Given that Ms Gizycki could only be entitled to youth allowance with respect to her claim made on 3 October 2013 from that date (see ss 41 and 42 of the Administration Act and cl 3(1) of Sch 2 to the Administration Act), it follows that Ms Gizycki is not entitled to youth allowance with respect to the relevant period (from 3 May 2013 to 2 October 2013).
CONCLUSION
For the above reasons, the decision under review will be affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy
of the reasons for the decision herein
of Deputy President F J Alpins........................................................................
Administrative Assistant
Dated 29 May 2015
Dates of hearing 11 August 2014 & 24 March 2015 Advocate for Applicant Mrs S Gizycki (Applicant’s mother) Advocate for the Respondent Ms A Bramley Solicitors for the Respondent Programme Litigation and Review Branch, Legal Division, Department of Human Services
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