Mary Conlay and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 621
•17 September 2012
[2012] AATA 621
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2474
Re
Mary Conlay
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 17 September 2012 Place Adelaide The decision under review is affirmed.
....................[Sgd]....................................................
Senior Member K Bean
CATCHWORDS
SOCIAL SECURITY - Newstart allowance - Whether allowance correctly cancelled - Whether entitlement to receive allowance can be voluntarily waived - Decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 (Cth), ss 109(2), 137
REASONS FOR DECISION
Senior Member K Bean
17 September 2012
INTRODUCTION
In September 2007 the applicant, Mrs Conlay, voluntarily relinquished her entitlement to receive newstart allowance (NSA) from Centrelink and her NSA payments were accordingly cancelled. Subsequently, in March 2011, she reapplied for NSA, which was granted from 30 March 2011.
At about the same time that Mrs Conlay began to receive NSA again, she also raised with Centrelink the fact that she felt she should have been placed back onto NSA much earlier than she was. This culminated in a decision being made by an Authorised Review Officer (ARO) that the decision to cancel Mrs Conlay’s NSA in 2007 was incorrect, although Mrs Conlay had no entitlement to arrears because she had not sought review of the cancellation decision until after she was again in receipt of NSA payments.
Mrs Conlay subsequently sought review of that decision by the Social Security Appeals Tribunal (SSAT), and that Tribunal decided that Mrs Conlay’s NSA was correctly cancelled from 14 September 2007.
However Mrs Conlay has now sought review of that decision by this Tribunal, giving rise to these proceedings.
THE ISSUE
As I have indicated above, the decision under review in this matter, being the decision of the SSAT, concerned the correctness of the decision made by Centrelink on 14 September 2007 to cancel Mrs Conlay’s NSA. As the jurisdiction of this Tribunal is limited to reviewing the correctness of the decision under review, it follows that the only issue properly before me is as follows:
·Whether the decision made by Centrelink to cancel Mrs Conlay’s NSA from 14 September 2007 was correct.
THE EVIDENCE
In her evidence at the hearing, Mrs Conlay did not dispute that she had asked Centrelink to cancel her NSA on or about 14 September 2007. Mrs Conlay did add that she had felt “under duress” at the time and had made the request immediately after attending an appointment with her job network provider, at which her job seeking efforts were discussed.[1] Accordingly, Mrs Conlay said she had made that decision when she was emotionally upset, and it had taken a long time for her nerves to “settle” after this. She also said she did not recall receiving the letter from Centrelink advising her that her NSA had been cancelled, however, as indicated above, she did not dispute that she had requested that her NSA be cancelled and accepted that she had to “wear” the consequences of this.
[1] S3/24.
In fact, Mrs Conlay’s main grievance related not to the cancellation of her NSA from 14 September 2007, but to the advice and information she had received from Centrelink thereafter. She said that she now believed that she would have been eligible to be placed back on to NSA much earlier than she ultimately was, that is from 30 March 2011. However she said that for two years before she ultimately applied to resume NSA, she had regularly approached Centrelink and on each occasion had been told that she was receiving her correct entitlements. She said it was not until she finally asked to speak to a manager that she was advised to again apply for NSA.
Mrs Conlay’s husband, Mr Conlay, also gave brief evidence at the hearing which corroborated Mrs Conlay’s evidence. He said that on each occasion that the couple had approached Centrelink between 2009 and 2011, they had been told that they were being assessed correctly and did not have any additional entitlements. He also said that it was not until 2011 when they asked to speak to a manager that they were finally advised that Mrs Conlay should reapply for NSA.
CONSIDERATION
Although an ARO decided that the original decision to cancel Mrs Conlay’s NSA from 14 September 2007 was incorrect,[2] I am satisfied that the SSAT’s decision to set aside the ARO’s decision and restore the original decision was correct. That is because there is no dispute that Mrs Conlay did seek to relinquish her entitlement to NSA from 14 September 2007 and I am satisfied that a person can voluntarily waive their right to receive NSA, being a statutory private right.[3] I am also satisfied that NSA is not payable where this has occurred.
[2] T8/31.
[3] Halsbury’s Laws of Australia (4th ed as at 29 August 2012) Vol 24, 385 “Statutes” at [385-610].
Whilst the issue doesn’t strictly arise, I am also satisfied that even if Mrs Conlay’s NSA had not been correctly cancelled, she would not have been entitled to any arrears, as she did not seek review of that decision until after she had resumed receiving NSA. The effect of s 109(2) of the Social Security (Administration) Act 1999, in combination with s 137 of that Act, is that she would only have become entitled to arrears of NSA from the date on which she sought review of the cancellation decision, being 13 April 2011,[4] by which time she was again in receipt of NSA in any event.
[4] T9/38.
As I am satisfied that Mrs Conlay’s NSA was correctly cancelled from 14 September 2007, and that the SSAT was correct to reach that conclusion, I am obliged to affirm the SSAT’s decision.
As I have indicated above, Mrs Conlay’s main grievance related to what she alleged to be Centrelink’s failure to advise she and her husband earlier that she should reapply for NSA. However, as I advised Mrs Conlay during the hearing, that is not something which the Tribunal has jurisdiction to consider or adjudicate upon in the context of this application.
For the reasons set out above, I have decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of ........................[Sgd]................................................
Administrative Assistant
Dated 17 September 2012
Date(s) of hearing 9 August 2012 Applicant In person Advocate for the Respondent Anthony Parker Solicitors for the Respondent Program Litigation and Review Branch
1
0
0