Marskell and Department of Family and Community Services

[2001] AATA 593

DECISION AND REASONS FOR DECISION [2001] AATA 593

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/32

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      KENNETH MARSKELL    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Assoc. Professor B W Davis A M (Part-time Member)

Date26 June 2001

PlaceHobart

Decision      The decision under review is set aside and in substitution therefor a decision that the matter be remitted back to the Department of Family and Community Services with a requirement that the liquid assets waiting period be reduced to ten weeks maximum.    
  [A/Prof. B W Davis AM]
  Part-Time Member
CATCHWORDS
Social security – newstart allowance – liquid assets waiting period – temporary employment – advice – Centrelink – obligation to advise.
Legislation
Social Security Act 1991 – ss. 14A, 23(10), 38B, 598
Social Security Administration Act 1999
Public Service Act 1999

Publication
Centrelink brochure – "A Guide to Commonwealth Government Payments" (20 March 2001 – 30 June 2001)

REASONS FOR DECISION

26 June 2001          Assoc. Professor B W Davis A M (Part-time Member)            

The Application

1. The applicant, Kenneth Marskell, seeks review of a decision made by a delegate of the Secretary, Department of Family and Community Services on 20 October 2000, to impose a liquid assets waiting period of 13 weeks in respect of newstart allowance.   He had appealed to the Social Security Appeals Tribunal (SSAT), which affirmed the initial decision on 8 February 2001, however the Tribunal decided to make a recommendation in relation to compensation for defective administration, stating the waiting period should be reduced to 10 weeks.   Mr. Marskell has not received any response from the Department concerning this recommendation.
   Background

2. Mr. Kenneth Marskell is a long-term unemployed person, having been on extended periods of either unemployment benefits or Austudy since 1993.   He obtained a fourteen-week contract with the Department of Education to replace a teacher on long-service leave.   He claims to have discussed options with Centrelink and was advised to withdraw from support, on grounds he would become eligible for newstart allowance once his employment contract concluded.    He claims Centrelink gave no indication he would be subject to liquid assets waiting period.

3. Mr. Marskell was subsequently advised he would have to serve thirteen-week liquid assets waiting period (LAWP) because of accumulated liquid funds approximately $11,000.   In written submissions to the Department of Family and Community Services and the SSAT he claimed this was unjust, since it severely penalised him for having sought employment and reduced the sum available to deal with urgently needed purchases.   If he had known about the waiting period he would have spent this money before leaving work and his liquid assets would then have been approximately $7,492 rather than $11,112.   Because of the LAWP the salary he earned for 16 weeks in fact had to last him for 30 weeks.

4. He also claimed that the liquid assets waiting period was unjust and not intended to apply in the way it was currently being administered.   The legislation was designed to take account of people who left employment with leave allowances and redundancy payments, but this was not the situation he was in as a long-term unemployed person.
   Legislation

5. The relevant sections of the Social Security Act 1991 ("the Act") are as follows:

• Section 14A, which deal with the definition of 'liquid assets' and 'maximum reserve'.

• Section 23 (10A), which discusses serving the liquid assets waiting period.

• Section 38B relating to determination of continuous period in respect of which a person receives income support payments; and

• Section 585, which deals with discretion or requirement in respect of the liquid assets waiting period.

1. The applicant argued that in addition to the Act, a range of other legislation should be invoked, including the Public Service Act 1999 and the Social Security Administration Act 1999.
   Facts and Contentions

2. The respondent submitted a statement of facts and contentions, the applicant did not.   Both parties were agreed the following facts applied:
   (a)      Mr. Marskell was in receipt of newstart allowance until 18 June 2000;
   (b)      Mr. Marskell was employed from 19 June to 11 October 2000;
   (c)       Mr. Marskell claimed newstart allowance (NSA) on 13 October 2000;

(d)On 13 October 2000 Mr. Marskell had a total of $11,112 in savings and investments.

Evidence

1. At the Tribunal hearing on 14 June 2001, the applicant represented himself, Ms Linda Miller represented the respondent.   Neither party presented any witnesses.

2. Mr. Marskell was then sworn and gave evidence, using a written submission and exhibits to illustrate his statements and assertions, some of which were rather generalised and not easily amenable to verification.

3. He queried whether or not there was an obligation on civil servants to provide complete and accurate information to welfare clients and whether their purview ought to extend beyond the Act to embrace principles of diligence and accuracy enunciated in the Public Service Act and Social Security Administration Act. Failure to notify him of the liquid assets waiting period (LAWP) had been treated as a minor incident, but an internal memo of the Department indicated they now admitted information procedures needed to be improved.

4. Imposition of the LAWP in his straightened circumstances had imposed a severe financial penalty and disincentive to engage in temporary employment, seemingly in contradiction of intent of the Act to foster self-sufficiency. Had he known of the LAWP he would have dealt with urgently needed expenditures, rather than being penalised for trying to safeguard the residence of monies derived from forced sale of his home and furniture.

5. He had sought access to his file under FOI legislation in December 2000 and having failed to receive it by February 2001, was forced to go to the SSAT only on information he then possessed.   No explanation had been given then and in the current instance he had not yet received any response to the SSAT's recommendation that LAWP be reduced to 10 weeks duration.

6. He questioned the integrity of civil servants when they were trained to use bluff and evasion in negotiation situations (citing manuals) and where their productivity bonuses were dependent upon saving money for government.

7. Mr. Marskell then stood down and the Tribunal invited the respondent to present its case.    No evidence other than the statement of facts and contentions was presented and the respondent then attempted to respond to a number of questions put in cross-examination.   Counsel for the respondent agreed there was an obligation on civil servants to provide complete and accurate information to welfare applicants and apologised for lack of response to the SSAT's recommendation to reduce the LAWP.
   Analysis

8. It is quite clear that the Act as it stands is not advantageous to citizens in Mr. Marskell's circumstance, however the Tribunal is required to stand in the shoes of the decision-maker and make the correct or preferable decision within the statutory framework which prevails. Mr. Marskell does not appear to have been properly advised about the liquid assets waiting period, nonetheless management of his financial affairs involve personal choice and it is unfortunate that his decision to retain savings ultimately worked against him. There are no adequate explanations to why a recommendation of the SSAT to reduce the LAWP should remain unresolved several months later. In general Mr. Marskell has been poorly treated by DFCS.

9. In the circumstances the most the Tribunal can do is remit the matter back with a requirement that the LAWP be reduced in accordance with the SSAT recommendation i.e. the LAWP period be reduced to ten weeks maximum.
   Decision

10. The decision under review is set aside and in substitution therefor a decision that the matter be remitted back to the Department of Family and Community Services with a requirement that the liquid assets waiting period be reduced to a maximum of 10 weeks duration.

    I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc. Professor B W Davis A M (Part-time Member)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  14 June 2001
    Date of Decision  26 June 2001
    Solicitor for the Applicant         Applicant appeared on own behalf
    Solicitor for the Respondent    Ms L Miller (Centrelink)