Maurice Clancy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 679
[2013] AATA 679
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5542
Re
Maurice Clancy
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 24 September 2013 Place Sydney The Tribunal sets aside the decision under review and instead decides that Mr Clancy’s pension should not have been cancelled.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of payment – whether DSP correctly cancelled – notice to provide further information – failure to comply with requirement to provide further information – whether special circumstances apply – decision under review set aside
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 33
Social Security Act 1991 (Cth), ss 1064, 1064-E2
Social Security (Administration) Act 1999 (Cth) ss, 68(2), 72, 81(1)SECONDARY MATERIALS
Guide to Social Security Law, 3.6.1.90
REASONS FOR DECISION
Ms N Bell, Senior Member
24 September 2013
Mr Clancy has been in receipt of disability support pension since March 2010. He was previously in receipt of newstart allowance. Mr Clancy said that he and his partner are estranged, but living under the same roof. He has been unsuccessful in having Centrelink accept that he is not in a marriage like relationship.
On 20 July 2012 Centrelink cancelled his pension from 20 June 2012 for failing to report his partner’s income. The decision was affirmed, on further internal review, by an authorised review officer and then by the Social Security Appeals Tribunal.
Centrelink cancelled Mr Clancy’s payments pursuant to section 81(1) of the Social Security (Administration) Act 1999 which provides that a payment may be cancelled or suspended if the payment recipient does not comply with notices sent to him. Centrelink sent 14 notices to Mr Clancy requesting him to advise Centrelink of any specified changes to his circumstances within 14 days of the date of the notice.
Sections 68 and 72 of the Administration Act provide that persons in receipt of benefits must inform Centrelink of any changes in their circumstances, and that they must do so within 14 days of the notice.
The Secretary contended that details of Mr Clancy’s partner’s income are necessary for Centrelink to calculate the correct rate of payment for Mr Clancy’s disability support pension. Section 1064 of the Social Security Act 1991 provides that a person’s rate of disability support pension is calculated applying the rate calculator in that section. Section 1064-E2 provides that where a person is a member of a couple, then the income of both members of the couple is included in that calculation.
Mr Clancy maintained there was no change in his partner’s income; he has repeatedly informed Centrelink about his partner’s employment and about his difficulty in getting the details of her income.
The issues for me to decide are:
(i)Did Mr Clancy fail to comply with notices from Centrelink requesting advice of his circumstances, including advice of his partner’s income?
(ii)If so, should Mr Clancy’s disability support pension have been cancelled?
DID MR CLANCY FAIL TO COMPLY WITH NOTICES FROM CENTRELINK?
There is no dispute that Centrelink issued some 14 notices to Mr Clancy where he was directed to inform them of any change in his circumstance. These notices included information about what his notice obligations were. This included:
What you have to tell us about
You must tell us within 14 days… if any of the things listed below, or are likely to happen. … This request is an information notice under social security law.
If your income changes
…
If your assets change
…
Important: Information about our disability support pension. You must report your and your partner’s earnings for the whole Centrelink reporting Period, including the first and last day…
…
This Reporting Statement is an information notice given under social security law. You have an obligation to provide Centrelink with all the information that is relevant to your payment. … Information provided by you may be checked under Centrelink’s data matching programs. You must report every 2 weeks for each Reporting Period… Once your reporting requirements have been met, your payment will be issued for each Reporting Period.
If you/your partner were employment: … the amount you/your partner earned for work done…
Mr Clancy contended that he did not see any change in his partner’s income; she was always working the same hours (about 26-28) and so there was no change to report. In addition, he said he has never failed to inform Centrelink about his partner’s employment and that, more importantly, she refused on numerous occasions to provide Mr Clancy with the details of her income. Mr Clancy said he has been disadvantaged because Centrelink continued to assess his pension rate as partnered, but there was no assessment of her income. He asked why Centrelink continued to pay him as partnered when it did not have the details of her income and when he had told them on many occasions that he could not get the information from his partner. He said he requested Centrelink to obtain the information from her employers.
On 30 May 2012 a Cetnrelink file record states:
cus[tomer] was assessed as ptr’ed [partnered] but ptr’s income was never provided or assessed, cus[tomer] has been on payment since 2009 and ptr’s income and assets never assessed. have called ptr’s employer myer and have requested income details. am waiting for them to get back to me.
On 27 June 2012, Centrelink wrote to Myer’s Payroll offices requesting the income details of Mr Clancy’s partner. Myer provide those details on 11 July 2012.
Mr Clancy provided copies of a number of documents that show he told Centrelink about his wife’s employment and his inability to obtain details of her earnings as early as 2009. These included:
·A Centrelink file note dated 20 January 2009 that records advice from Mr Clancy that his partner refused to complete a “Mod P” or to provide her payslips “as she believes his Centrelink payment has nothing to do with her”;
·‘ARO Notes’ taken on 25 February 2009 which appeared to deal with the question of whether Mr Clancy and his partner were in a marriage like relationship. The ARO’s notes record Mr Clancy’s advice that he does not know how much his partner earns;
·Centrelink file notes dated 22, 27 and 29 January and 3 February 2009 recording his advice that his partner considers that she is not his partner and will not complete the Mod P form. The second file note noted Mr Clancy’s distress about this. The third notes his advice that it is not possible for him to complete the required form;
·A Centrelink file note on 20 March 2009 records Mr Clancy’s advice that his wife is working and that his pension is being paid into their joint account;
·A Centrelink file note on 3 February 2010 records a decision that Mr Clancy is to be paid at the partnered rate of pension.
On 7 February 2013, Mr Clancy provided a printout of his partner’s payslips up until the date of cancellation of his pension. Mr Clancy said that after he had pleaded with her his partner finally relented. He said he had asked her for these details many times and had made it clear to Centrelink since 2008 that she refused to provide him with the information. Centrelink computer file notes and answers on forms completed by Mr Clancy confirm this.
Mr Clancy asserted no change in his partner’s income, but the payslips that were eventually obtained indicate she had a variable income. It is not correct to say there was no change over the period of his receipt of pension.
Strictly, Mr Clancy did fail to provide the information requested by Centrelink for the periods for which it was requested and by the deadlines it applied. The discretion to cancel or suspend his pension was enlivened.
SHOULD MR CLANCY’S PENSION HAVE BEEN CANCELLED?
Section 81 provides for a discretion to cancel or suspend a social security payment for non-compliance with certain notices:
Cancellation or suspension for non-compliance with certain notices
(1) If:
(a) a person who is receiving a social security payment (other than a newstart allowance) has been given:
(i) a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii) a notice embodying a requirement under Division 1 of Part 5; and
(b) the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended. (my emphasis)
Section 33(2A) of the Acts Interpretation Act 1901 provides:
Meaning of may
(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.
It is clear that the use of the word “may” in section 81 of the Administration Act establishes a discretion to cancel or suspend a social security payment. Part 3.6.1.90 of the Guide to Social Security Law provides:
Statement reporters - late reporting
DSP will be cancelled if the recipient has not reported one fortnight, or 14 days after the due date. However, if special circumstances exist the payment MAY be restored. When a recipient is very late reporting, the following information should be considered to determine if special circumstances apply:
oThe reasons for the late reporting. The longer the delay, the greater the need to provide detailed reasons to account for the delay for the full period.
oWhether DHS contributed in any way to the delay (see example 1).
oOther mitigating or extenuating factors which may call for a more generous approach (see example 2).
oThe plausibility of the reasons for the delay.
oWhether the recipient belongs to a disadvantaged group (see example 3).
Example 1: By not giving specific information when requested to do so or by giving incorrect information.
Example 2: The recipient has been incapacitated, or has a condition such as an intellectual disability, psychological condition, acquired brain injury, or cognitive impairment that impacts on their ability to report. Unexpected telecommunication problems e.g. phone service is down due to storms etc.
Example 3: They are a migrant with low level of English comprehension or an Indigenous Australian.
I am satisfied that Mr Clancy made his predicament clear to Centrelink. I am also satisfied that he asked Centrelink to obtain the information about his partner’s earnings itself, using its powers to do so. That is what finally happened. I accept that Mr Clancy had no power to compel his partner to disclose her earnings to him or to Centrelink. I also accept that he did all he could to obtain the information and that he advised Centrelink of the difficulty he faced. I consider that these are mitigating circumstances, in accordance with the Guide, and that it was in Centrelink’s power to obtain the relevant information once Mr Clancy alerted it to his inability to obtain it. Centrelink delayed doing so until 27 June 2012.
In these circumstances the discretion to cancel Mr Clancy’s pension should not have been exercised.
DECISION
The Tribunal sets aside the decision under review and instead decides that Mr Clancy’s pension should not have been cancelled.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .....[Sgd]...................................................................
Associate
Dated 24 September 2013
Date of hearing 24 May 2013 Date final submissions received 27 July 2013 Applicant In person Solicitors for the Respondent G Heggen, DHS Program Review Branch
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