McPherson and Secretary, Department of Social Services (Social services second review)
[2020] AATA 12
•10 January 2020
McPherson and Secretary, Department of Social Services (Social services second review) [2020] AATA 12 (10 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1831
Re:Melanie McPherson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:10 January 2020
Place:Sydney
The decision under review, that is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, is affirmed.
........................[sgd]................................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – where Applicant’s contact details failed to update on online application – whether Applicant was notified that Newstart Allowance was granted – whether Applicant was notified that Newstart Allowance was cancelled – where Applicant elected to receive Centrelink Online Letters – date of effect of favourable determination resulting from review – s 109(2) – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 ss 28A, 29
Electronic Transactions Act 1999 ss 5, 9,14A
Social Security (Administration) Act 1999 ss 5, 3, 41, 42, 43, 63, 64, 68, 80, 95, 109, 237
Social Security Act 1991 ss 23, 60, 593, 621
CASES
Polydorou v Department of Social Services [2014] FCA 1059
Threadgold v Secretary, Department of Social Services [2014] AATA 654
Carey and Secretary Department of Social Services [2016] AATA 926
REASONS FOR DECISION
Mr S Evans, Member
10 January 2020
Melanie McPherson (the Applicant) seeks a review of a decision by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) which affirmed a decision of the Secretary, Department of Social Services (the Respondent, also known as Centrelink) that the Applicant’s Newstart Allowance had been correctly cancelled and should not be backdated.
Ms McPherson successfully applied for Newstart Allowance on 3 February 2017 (the first application). She was granted Newstart Allowance from 13 May 2017 until it was cancelled on 18 May 2017. Ms McPherson was not aware that her first application had been successful until 17 August 2018 when she reapplied for Newstart Allowance (the second application). She was also unaware that Centrelink had cancelled her Newstart Allowance in May 2017 because she had not completed a Newstart Employment Pathway Plan (Job Plan). Ms McPherson submits that she was unaware of these decisions because Centrelink had not updated her contact details including her home address and phone number.
Ms McPherson contends that the second application should be backdated to the date at which the first application was cancelled.
Ms McPherson provided evidence to the Tribunal via telephone and was represented by her son, also by telephone. I found her to be a reliable witness with good recall and a willingness to assist the Tribunal. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant.
For reasons I will explain, the decision under review is affirmed.
BACKGROUND AND EVIDENCE
Ms McPherson’s first application for Newstart Allowance
Ms McPherson was working in a professional job and she accepted a redundancy package in September 2016. On 3 February 2017 she attended a Centrelink service centre where she applied for Newstart Allowance using a computer at the service centre. In this first application she noted that she was no longer employed, that her last day of employment was 18 October 2016 and that she had received a termination payment from her previous employer.
Ms McPherson remembers filling out the application because she “did it about three times online, and people kept coming to try and help” and “it was a rather painful process”. Relevantly, Ms McPherson states that the application was auto-populated with her old address (the old address) which Centrelink had on file. She attempted to enter her new address (the correct address) but she says it would revert to her old address as she progressed through the application. Centrelink staff told her “It will be alright, sometimes it takes 24 hours to update”.
Ms McPherson confirmed to the Tribunal that she also nominated to receive most of her letters from Centrelink electronically via ‘Centrelink Online Letters’ (“COL”) when completing the application.
Having submitted the first application Ms McPherson was uncertain as to whether she was eligible for Newstart Allowance on account of receiving a redundancy payment. She understood that she would receive a phone call from Centrelink confirming the outcome of her application.
The Tribunal has before it a copy of the printout of the first electronic Newstart Allowance application which was submitted by Ms McPherson on 3 February 2017. This first application records Ms McPherson’s old address as her home address. It also records old and incorrect home and mobile phone numbers for Ms McPherson.
The first application does, however, include accurate and new information such as the end date of Ms McPherson’s employment and her redundancy payment details. Relevantly, the first application also records her correct bank details and account number. The form also confirms that Ms McPherson agreed to “receive most of my letters and brochures via Centrelink Online Letters”.
Having submitted the Newstart Allowance application, an arrangement was made with Centrelink staff to speak to Ms McPherson about the application on 7 February 2017. Ms McPherson was duly contacted on that day by a Centrelink officer who telephoned her on her correct phone number.
Centrelink records confirm contact between the Applicant and Centrelink on 7 February 2017 in reference to the first application. The officer records “customer confirmed all information provided in the online claim is up to date and current”. It appears from this record that Ms McPherson was also informed that she was required to provide additional information including bank statements and a copy of her residential lease agreement by 21 February 2017 or else her claim may be rejected. Ms McPherson submitted her employment separation certificate to support the application on 14 February 2017. Having received a call on her correct number, the Ms McPherson was of the understanding that Centrelink had updated her contact details as she anticipated.
After 7 February 2017, Ms McPherson did not hear from Centrelink about the first application. She says that because of the redundancy payment she had received, it was raised by Centrelink staff that it could be up to a year before she was eligible for Newstart Allowance. As a consequence of this expectation, she did not follow up the matter with Centrelink.
Newstart Allowance is granted and cancelled
On 16 February 2017 Ms McPherson was sent a Secure Online Message (SOM) advising that her application for Newstart Allowance was subject to an Income Maintenance Period which had been applied because of money received from her redundancy payment. She would, however, be entitled to Newstart Allowance from 13 May 2017. The correspondence also advised that she was required to provide a lease or tenancy agreement by 16 March 2017 so that she may be assessed for Rent Assistance.
On 29 May 2017 Ms McPherson was sent another SOM advising her to contact Centrelink and agree to a Job Plan. As she did not do so, her Newstart Allowance was cancelled from 18 May 2017. Ms McPherson was advised of this, again via a SOM, on 1 June 2017.
Second application for Newstart Allowance
Ms McPherson contends that she did not hear anything from Centrelink after the phone call on 7 February 2017. Unaware that her first application had been granted and subsequently cancelled, on 17 August 2018 she again attended the Centrelink service centre where she was directed to reapply for Newstart Allowance using the service centre computer system. When she did, she “found a number of letters” from Centrelink advising that she had been granted Newstart Allowance following the first application and that it had been cancelled. She noted that the postal address on the electronic correspondence was the old address.
Following the second application, Ms McPherson was granted Newstart Allowance from 24 August 2018 following an Ordinary Waiting Period of seven days after a person applies.
ISSUES FOR THE TRIBUNAL
The substance of Ms McPherson’s application for review involves:
(a)a challenge to the decision to cancel her Newstart Allowance; and
(b)a request that Newstart Allowance be paid from on or around 19 May 2017 through to 24 August 2018 irrespective of the cancellation decision.
The Secretary contends that:
(a)Newstart Allowance was correctly cancelled on 18 May 2017; and
(b)the earliest date from which Newstart Allowance can be paid is 24 August 2018.
RELEVANT LEGISLATIVE FRAMEWORK
The legislation relevant to the present proceeding is contained in the:
·Social Security Act 1991 (Cth) (the Act),
·Social Security (Administration) Act 1999 (Cth) (the Administration Act),
·Electronic Transactions Act 1999 (Cth) (the ET Act)
·Acts Interpretation Act 1901 (Cth) (the Interpretation Act)
Section 593 of the Act specifies the requirements that an applicant must satisfy in order to qualify for Newstart Allowance. In summary, it provides that a person qualifies for Newstart Allowance if the person is unemployed, satisfies the activity test and if the person is required by the Secretary to enter into a Job Plan, the person does so.
Subsection 68(2) of the Administration Act requires a person receiving social security payments to, among other things, provide specified information to the Department or to give the Department statements about a matter that might affect the social security payment. Subsection 95(1) of the Administration Act allows for automatic cancellation of a social security payment if a person who is receiving a payment does not provide a statement as required under s 68(2).
Section 64 of the Administration Act provides that if a person is receiving or claiming a social security payment, and they are notified of a reasonable requirement which they do not comply with, the payment is not payable. Section 80 of the Administration Act provides that social security payments can be cancelled or suspended for a failure to comply with a notice issued under s 64.
Subsection 109(2) of the Administration Act provides that if an application for review of the original decision in relation to a person's claim for a social security payment is made more than 13 weeks after notice of the original decision is given, and the favourable determination is made as a result of the application for review, the favourable determination takes effect on the day on which the application for review was made.
Sections 41, 42 and subsection 3(1) of Schedule 2 of the Administration Act provide the start day for a social security payment is generally the day on which the claim is made. Sections 620 and 621 of the Act set out the conditions and exemptions of the “ordinary waiting period” of seven days.
Section 237 of the Administration Act provides that if notice of a decision is sent by prepaid post to the postal address of the person last known to the Secretary, the notice of the decision is taken to have been given to the person.
Subsection 23(12) of the Act provides that s 237 applies to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Section 9 of the ET Act provides:
(1) If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a) in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
…
(d) if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is required to be given consents to the information being given by way of electronic communication.
Section 14A of the ET Act determines that the time of receipt of electronic communication is the time when that communication is capable of being retrieved.
WAS MS MCPHERSON NOTIFIED
Ms McPherson submits that she did not meet the requirement to complete a Job Plan because she was not aware that she was required to do so. Ms McPherson contends that she was not aware as a consequence of errors made by Centrelink. Specifically, Centrelink’s use of her old address and her old phone number meant that she had not been notified of the requirement to complete a Job Plan and that consequently her Newstart Allowance should not have been cancelled.
The Tribunal accepts that Ms McPherson was not aware of the requirement to complete a Job Plan at the time her Newstart Allowance was cancelled, or even that the first application had been successful, until she made the second application.
As mentioned, Ms McPherson attempted to update her details when applying for Newstart Allowance but the correct details were not retained as she proceeded through the online application. Whilst I have no reason to doubt the Applicant’s testimony regarding her attempt to update her contact details, there is also no corroborating evidence of a system error before the Tribunal. There is, however, a completed application form for Newstart Allowance dated 3 February 2017. This first application records incorrect contact details for the Applicant, but correct details in regards to all other aspects of her application including details of her redundancy, termination payment and bank balance.
On the same application under the section “contact details” the following is recorded:
Online letters and electronic messaging I will receive most of my letters and brochures via Centrelink Online Letters
[emphasis in original]
Ms McPherson confirmed at the hearing that she did nominate to receive most of her correspondence electronically during the application process. She also conceded that having nominated to receive her correspondence in this manner, she did not update the contact details on her myGov account. This was unfortunate as it would transpire that Ms McPherson’s myGov contact details, including her recorded email address, were also incorrect.
Following a review of the decision to grant Newstart Allowance from 24 August 2018, a Centrelink Authorised Review Officer (ARO) wrote to Ms McPherson stating that as she was subscribed to “online letters and electronic messaging” it meant an SMS would be sent to her mobile number alerting her to view any online letters available. That may be so but as the mobile number Centrelink had on record was incorrect, and Ms McPherson had not updated her myGov contact details, she did not receive any SMS notifications.
The ARO also noted that two letters regarding the first application were sent to the Applicant’s old address. The Respondent concedes that these letters were not, in fact, posted to the Applicant, but delivered exclusively through SOM. Even if they had been posted, it would have been to the address on record, which was Ms McPherson’s old address.
Section 237 of the Administration Act provides that if notice of a decision is sent by prepaid post to the postal address of the person last known to the Secretary, the notice of the decision is taken to have been given to the person.
Section 23(12) of the Act provides that s 237 applies to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Section 237 of the Administration Act, or ss 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice, which is the case in this matter.
Whilst in Ms McPherson’s case there was no posted correspondence, s 23(12) also applies to electronic correspondence.
The Applicant, through her representative, contends that she was not notified for the purposes of the Act because the Applicant had agreed to receive most, but not all, letters and brochures via COL. Further, it is submitted that the Secretary is required to have approved giving notices under s 63 of the Administration Act. I will consider each of these matters separately.
Receiving notices via Centrelink Online Letters (COL)
As mentioned, s 9 of the ET Act provides that if, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication provided, inter alia, that the person to whom the information is required to be given consents to the information being given by way of electronic communication.
Section 5 of the ET Act defines consent which “includes consent that can reasonably be inferred from the conduct of the person concerned”. As Ms McPherson consented to receive correspondence via COL in the process of submitting her first application, it is reasonable to infer that she consented to receive any information via COL pertaining to that application. The term “most not all letters” is reasonably inferred by the Tribunal to mean that it is still open to the Respondent to provide correspondence to the Applicant by other means if it so chooses. It does not require that the Respondent communicate through a variety of mechanisms.
Secretary’s approval to give notice under s 63
The Applicant’s representative submits that “the only valid method of providing notice is under s 63(5)(b) of the Administration Act”. Subsection 63(5)(b) provides that the Secretary may notify a person by sending notice to that person at their postal address, or “in any other way the Secretary considers appropriate”. The Applicant has gone to the trouble of submitting a Freedom of Information (FoI) request to the Department of Human Services seeking any “any instrument/document/other approval of the Secretary of Human Services approving the use of the MyGov website and the service of notices under Social Security Law”.
The Department of Human Services provided a response to the FoI request which states, in relation to this part of the request, “the documents do not exist”. In the absence of evidence of delegation, the Applicant submits that the use of myGov is “invalid”.
The Respondent contends that the Applicant’s reliance on these provisions is misplaced. Section 5(1) of the Administration Act provides that if written notice is required, “it is sufficient compliance with that provision is the notice is given in a manner approved by the Secretary”. However, s 5(2) provides that s 5(1) does not prevent a notice being given in accordance with s 28A of the Acts Interpretation Act, which also notes that the ET Act deals with giving information in writing by means of an electronic communication.
Of relevance to Ms McPherson’s circumstances, s 9(1)(d) of the ET Act enables the requirement to give information in writing to be met through electronic communication provided “…the person to whom the information is required to be given consents to the information being given by way of electronic communication”. As previously detailed, Ms McPherson provided this consent when she nominated to receive correspondence through COL.
Ms McPherson is deemed to have been notified
I find that Ms McPherson was notified of her reporting requirements in relation to the first application for the purposes of the Act. She was, however, unaware of these requirements as a consequence of not having updated her contact details.
I accept that Ms McPherson attempted to change her details with Centrelink in the process of submitting the first application and that she was unsuccessful in doing so. I also appreciate why the subsequent phone call from a Centrelink officer on 7 February 2017 created the impression that Centrelink had updated its records to include Ms McPherson's correct contact details.
But the Tribunal must consider the Applicant’s evidence in the context of Centrelink records which indicate that on 7 February 2017 Ms McPherson confirmed all information provided in the online claim was up to date and current. Ms McPherson herself nominated to receive most of her communication electronically and there is no evidence before the Tribunal of a system error. Had Ms McPherson updated her details in MyGov, she would have been notified of the correspondence and consequently that she was required to complete a Job Plan.
Consideration: should the first application have been cancelled
Cognisant that the SOMs from Centrelink were not seen by the Applicant until her Newstart Allowance had been cancelled, she was nonetheless sent three letters in 2017 regarding her Newstart Allowance, obligations and subsequent cancellation. I will detail the relevant sections of these letters below:
On 16 February 2017 a letter was sent to Ms McPherson stating:
Your Newstart Allowance
Payment from 04/05/2017 – 17/05/2017 due on 18/05/2017
…
A decision has been made that you will be paid Newstart Allowance from 13 May 2017.
…
To pay you Rent Assistance we need proof of how much rent you pay…
[emphasis in original]
On 29 May 2017 a letter was sent to Ms McPherson stating:
Please contact us about your Job Plan
…
You need to agree to a Job Plan as part of your Mutual Obligation Requirements…
…
You need to contact us … by 12 June 2017 … if you do not do this by 12 June 2017 your payments may stop…
[emphasis in original]
On 1 June a cancellation letter was sent:
Cancellation of your Newstart Allowance …
Final payment on 02/06/2017 $191.29
Important Information
Our records show that we have not received your Reporting Statement and as a result your Newstart Allowance has been cancelled from 18 May 2017…
[emphasis in original]
It can be seen that Ms McPherson was notified on 29 May 2017 that her Newstart Allowance may be cancelled by 12 June 2017, only for a follow up letter sent on 1 June 2017 to notify her that her Newstart Allowance was in fact cancelled from 18 May 2017.
The Respondent acknowledges that the correspondence of 16 February 2017 did not state the requirement to provide a “Reporting Statement” and that consequently relevant notice was not provided under s 68(2) of the Administration Act. The Respondent therefore concedes there is no basis for automatic cancellation under s 95(1), and the Tribunal agrees.
The Respondent contends, however, that the Applicant’s failure to enter a Job Plan provides a basis for cancellation or suspension under the Administration Act. Specifically, s 64, which determines that a social security recipient is “not payable” if upon failure to comply with a requirement in a notice. Further, s 80 permits cancellation or suspension of social security payments to those who are not payable. Whilst this is accepted by the Tribunal, the advice provided in the correspondence of 29 May 2017 is direct and unequivocal:
You [Ms McPherson] need to contact us [Centrelink] … by 12 June… to agree your Job Plan… if you do not do this by 12 June 2017 your payments may stop.
The Applicant’s Newstart Allowance was cancelled from 18 May 2017 and this was confirmed by SOM dated 1 June 2017, meaning that Ms McPherson’s Newstart Allowance was cancelled prior to the issuing of the notice on 29 May 2017.
It is the Tribunal’s conclusion that Ms McPherson’s Newstart Allowance was cancelled correctly but could not have been cancelled until such time as the notice was sent, as per s 64 of the Administration Act. This notice was sent on 29 May 2017 and required the Applicant to contact Centrelink by 12 June 2017. The Tribunal finds that Ms McPherson’s Newstart Allowance should not have been cancelled prior to 12 June 2017.
Consideration: should the second application be backdated
Whist I find that Ms McPherson’s Newstart Allowance was cancelled appropriately by the Respondent, even if this were not the case, the Tribunal is limited in its capacity to backdate the second application.
Ms McPherson made a second application for Newstart Allowance on 17 August 2018. On 20 August 2018 the Applicant was granted Newstart Allowance from 24 August 2018 because an “ordinary waiting period” of seven days was applied from the date of claim.
Where a person is deemed to have been given notice of a decision, s 109(2) of the Administration Act effectively limits back payment following a review of the decision to the day on which the application for review is made. The Tribunal accepts the Respondent’s position that the Applicant was provided notice of the cancellation of her Newstart Allowance on 1 June 2017. Ms McPherson sought a review of the decision on 29 August 2018 and this is the earliest date that any favourable determination could take effect. The Respondent cites Carey and Secretary Department of Social Services [2016] AATA 926 at [52] in support of this position, and there are some similarities in the case which make it worth repeating here:
In his evidence, Mr Carey said that he did not receive the letters dated 3 and 26 April, 17 May 2013 and 2 August 2013 because they were sent to his former mailing address. He did not inform Centrelink of the change of his mailing address. Even though Mr Carey did not receive the letter dated 2 August 2013 cancelling his Age Pension, by virtue of section 237 of the Administration Act when read with subsection 23(12) of the Social Security Act 1991 (Cth), Mr Carey was notified of the cancellation decision. As his application for review dated 3 June 2015 was well outside the thirteen week period, subsection 109(2) of the Administration Act applies. Therefore, I find that Mr Carey cannot receive arrears of his Age Pension for the period before 3 June 2015. As 3 June 2015 is the correct start day of his new claim for Age Pension, I further find that Mr Carey cannot receive any arrears flowing from the suspension and cancellation of his Age Pension.
In Threadgold v Secretary, Department of Social Services [2014] AATA 654, the Applicant did not challenge a decision regarding the cancellation of her parenting payment because of personal reasons at the time. Senior Member Cunningham writes at [15]:
…The issue to the Tribunal is whether Ms Threadgold can be paid arrears of parenting payment between 15 May 2012 and 16 December 2012. The first date on which Ms Threadgold sought review of the decision to cancel her parenting payment was 17 December 2012. Subsection 109 (2) of the Administration Act provides that the earliest date from which payments could be made upon a favourable determination is the date upon which the application for review was made. This could not have occurred before 17 December 2012 when Ms Threadgold was re-granted parenting payment. Even if the decision to cancel Ms Threadgold’s parenting payment was made incorrectly, because she did not contact Centrelink or seek a review of the decision until 17 December 2012, the earliest date from which she could be paid parenting payment was in fact 17 December 2012.
The Tribunal notes that Ms McPherson was receiving Newstart Allowance from 24 August 2018 which, notably, precedes the date of effect of any favourable determination resulting from review.
The commencement of a social security payment is determined by ss 41 and 42 of the Administration Act, and the “ordinary waiting period” of 7 days that starts on a person’s start day is determined by s 621 of the Act. These have been correctly applied in relation to Ms McPherson’s second application.
Payment granted but not received
The SOM which was sent on 1 June 2017 to Ms McPherson notified her that her Newstart Allowance was being cancelled and a final payment of $191.29 would be made on 2 June 2017. There is no record of that payment having been made to the Applicant’s nominated bank account.
The Respondent acknowledges that this payment was not made and was unable to provide an explanation as to why.
Ms McPherson contends that had she received the payment owed, she would have been alerted to the fact that she was eligible for Newstart Allowance and receiving a benefit. The intimation being that this would have prompted her to contact Centrelink or to check her myGov account.
The Tribunal acknowledges the potential of this payment, had it been received, to prompt Ms McPherson to contact Centrelink much earlier than she did.
The Tribunal finds that the outstanding amount is owed to the Applicant.
CONCLUSION
Having carefully considered the history of Ms McPherson’s recent interactions with Centrelink, it is difficult not to sympathise with her predicament. Ms McPherson was seeking access to social security support during a challenging transition period. She was largely unfamiliar with Centrelink and had not had occasion to interact with the organisation for many years. The evidence suggests she has been honest, modest in her expectations and civil in her interactions. She considered that she may have been ineligible for Newstart Allowance for longer than she actually was on account of her redundancy payment. She accepted that Centrelink may not act on her application until such time as she became eligible, so she waited. She considered that she had done what she needed to in order to update her contact details.
Some events also ran against Ms McPherson. Although she knew there were some issues with updating her contact details, Ms McPherson wrongly, if understandably, assumed that a subsequent phone call from Centrelink indicated that the system had updated her details as staff had advised it would on the day she applied.
A payment which was due to her was, for reasons which have not been established, not processed. I accept Ms McPherson’s contention that an unexpected deposit in her bank account would have perhaps triggered her to enquire as to the status of the first application much earlier.
Finally, when she did determine what had happened, she was hopeful of having it rectified. She had been actively applying for work, could see no reason she could not complete the Job Plan and she had already been determined to be eligible for Newstart Allowance.
It will be small consolation to Ms McPherson, but the Tribunal would anticipate the unprocessed payment and the date at which her Newstart Allowance was cancelled are matters which will be examined by the Respondent.
The matter of Polydorou v Department of Social Services [2014] FCA 1059 concerned an application for Disability Support Pension by an applicant who was self-represented and suffered from several disabilities, including psychiatric disabilities. Mortimer J wrote at [34]:
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.
Similarly in this matter, the law does not provide recourse for Ms McPherson which she would find satisfactory.
Having been notified of the reporting requirements, the Respondent was correct to cancel her Newstart Allowance, albeit at the later date. Even if the decision to cancel were to be overturned, s 109(2) of the Administration Act prevents the Tribunal from backdating Ms McPherson’s Newstart Allowance to the date of cancellation. Nor does Ms McPherson meet any of the prerequisites for waiving the ordinary waiting period.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
...............................[sgd].........................................
Associate
Dated: 10 January 2020
Date(s) of hearing: 23 October 2019 Advocate for the Applicant: Mr D McPherson Solicitors for the Respondent: Mr L Dennis, Department of Human Services
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