Meltser and Secretary, Department of Social Services (Social services second review)

[2019] AATA 3554

Meltser and Secretary, Department of Social Services (Social services second review) [2019] AATA 3554 (17 September 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6721

Re:Andrei Meltser

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:17 September 2019

Place:Sydney

The decision under review is affirmed.

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Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – youth allowance – whether it was correct to pay the applicant youth allowance – whether the applicant was entitled to newstart allowance – where the applicant satisfied the general qualification requirement for youth allowance – where applicant not eligible for receipt of newstart allowance – date of effect of favourable – whether applicant received notification of the original decision – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 540, 541B, 540, 613
Social Security (Administration) Act 1999(Cth) ss 90, 107, 109, 237

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

17 September 2019

SUMMARY

1. On 7 August 2016 Centrelink made a decision to grant the applicant youth allowance with effect from 2 August 2018 (“the 2016 decision”). The applicant sought review of this decision and, on 7 August 2018, an authorised review officer (“ARO”) of the Department affirmed Centrelink’s decision to pay the applicant youth allowance from 2 August 2016 (“the 2018 decision”). The applicant then appealed this decision to the Social Services and Child Support Division (“AAT1”) of the Tribunal.

2. On 22 October 2018, the AAT1 affirmed the 2018 decision, holding that:

   (a)the grounds upon which the ARO refused to reverse the 2016 decision were correct; and

   (b)in any event, arrears were not payable by reason of s 107 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

3. On 19 November 2018 the applicant applied to the Tribunal for review of the AAT1 decision.  The Tribunal finds that:

   (a)the 2016 decision was based on information provided by the applicant in June and July 2016 that satisfied the statutory eligibility requirements for youth allowance;

   (b)the decision took effect on 2 August 2016: see Administration Act, s 107(1);

   (c)the 2016 decision was not invalidated by reason of a lack of notice, either because:

   (i)notice of the decision was in fact given by Centrelink and received by the applicant; or

   (ii)notice of the decision was sent to an address for the applicant last known to the Secretary;

   (d)the legal effect of the 2016 decision was to extinguish any entitlement for newstart allowance from 2 August 2016, the date on which youth allowance commenced;

   (e)the applicant’s claim to be entitled to the difference between youth allowance and newstart allowance is not sustained; and

   (f)the ARO decision not to change the original decision was correct. 

4. The Tribunal affirms the decision of AAT1 as the correct or preferable decision.

   The documentary record

5. On 8 June 2016 the applicant submitted a claim form for youth allowance under the Social Security Act 1991 (Cth) (“the SSA”). The claim included the following information:

   (a)course details for an Advanced Diploma in Accounting at the Open Training and Education Network (“OTEN”) through TAFE (NSW);

   (b)course dates from 1 June 2016 to 1 December 2017;

   (c)a home address in Coogee with a commencement date of 25 September 2013 (and no end date);  

   (d)a temporary address in Woollahra from 7 June 2016 until 30 June 2016;

   (e)the form states:

   (i)“I am currently experiencing homelessness, have been sleeping rough for extended periods of time”;

   (ii)“I have a disability illness or injury. Mental illness – Major Depression Attention Deficit Disorder. Haemophilia. A Severe Degenerative Arthritis both ankles, one knee Hepatitis C”.

6. On 28 June 2016 his application for youth allowance was rejected. 

7. On Thursday 30 June 2016 the applicant contacted Centrelink.  A file note records (unedited):

   Customer contacted…on 30 June 2016 regarding General Inquiry for Youth Allowance. Customer is living rough on street, no accommodation and online claim has been rejected – have been following this as part of community engagement. Unsupported young person etc. Can we please reindex the claim as jobseeker to get vulnerable youth onto payment. Customer issues would make another online claim difficult, i.e. customer will give up due to medical issues. Please keep me informed if any issues.

8. On 4 July 2016, the applicant was granted newstart allowance from 7 June 2016.   The notice was sent to the Coogee address.

9. The applicant was exempt from being required to look for work for the period 4 July 2016 to 3 October 2016 (which is consistent with the content of a Medical Certificate dated 4 July 2016, which stated he was unfit for work/study from 4 July 2016 to 4 October 2016).

10. By letter dated 7 August 2016, Centrelink advised that he had been granted youth allowance as a full-time student from 2 August 2016.   This letter was also sent to the Coogee address.

11. On 13 September 2016 Centrelink cancelled his youth allowance effective 16 August 2016 due to a failure to comply with reporting requirements. 

12. On 26 September 2016 the applicant contacted Centrelink regarding the cancellation, as a result of which payments were restored.

13. On 17 November 2017, Centrelink cancelled his youth allowance a second time, because he had ceased studying or was not studying full-time. 

14. On 29 December 2017, a letter was sent to the applicant notifying him that he had been assessed as eligible for youth allowance because of a declared intention to study.

15. Between July 2016 and December 2017 Centrelink file notes record a number of contacts by the applicant.  The following list is not exhaustive:

    (a)on Friday 1 July 2016 the applicant contacted Centrelink regarding the claim for newstart allowance. A file note records that newstart allowance has been “granted under s 593 SSA”;

    (b)on 8 July 2016, he provided additional documents supporting his claim for youth allowance;

    (c)on 26 August 2016, the applicant advised Centrelink that he had commenced casual employment.  The file note indicates that the purpose of the call was regarding the ‘Review of Entitlement for Youth Allowance’; 

    (d)on 26 September 2016 there are three entries in Centrelink’s files.  The applicant updated his address details and his payments were restored; 

    (e)on 25 May 2017 the applicant contacted Centrelink and after reconfirming his study details his payments were restored;

    (f)on 23 January 2018 the applicant advised Centrelink that he no longer intended to continue with studies from 18 January 2018.  Centrelink therefore determined that he was eligible to receive newstart allowance from 19 January 2018. 

16. On 23 May 2018, the applicant lodged a Review of a Decision form with the Department.   He wrote that he wanted review of the “[d]ecision to move payment from Newstart to youth allowance on course previously assessed as ineligible”. He nominated the date of decision as 6 March 2018. The applicant's reasons for seeking review are stated as follows (reproduced as written):

    Centrelink has assessed that Advanced Diploma through OTEN was not eligible for youth allowance during on 28 June 2016 - this was clearly marked as decision under security and contained instruction for appeal, which I have consciously chosen not to undertake. This correspondence was issued to new mailing address…Woolarah. Immediately after this, I was granted Newstart as an alternative payment I have been found eligible for. Medical certificate was put to Centrelink stating that I could not study or work during this period, this was accepted by Centrelink and I had sickness allowance granted until 4 October 2016. An error was made by Centrelink as notice of new decision on 7 August 2016 to move to youth allowance was sent to old address and therefore I have not received this document.

    I have subsequently never known about specific and unusual conditions such as being assessed for 75% load or starting date from which included time I have been assessed as sick and unable to study.

    I had not known about this document or nature of decision until 8 March 2018 after receiving all documents about my records, and therefore I am within 13 weeks timeframe to appeal such decision.

17. On 19 November 2018, the applicant applied to the Tribunal for review of the AAT1 decision.  In the application to the Tribunal, he claimed that:

    An error has been made in the first hearing of ATT in regards to law, specifically that a person has 13 weeks after receiving notice of a decision rather than 13 weeks after a decision has been made. I have shown evidence to the tribunal that I was not sent notice due Centrelink error and have appealed a decision to Centrelink 12.5 weeks after I had received that notice in the course of Freedom of Information Act.

    The Tribunal hearing

18. On 24 July 2019 the Tribunal heard evidence from the applicant and received into evidence the T documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

19. The applicant gave evidence before the Tribunal. He said:

    (a)he applied for youth allowance in June 2016;

    (b)he was not however aware that he was receiving youth allowance as opposed to newstart allowance until 8 March 2018 when he received documents from Centrelink following a request he made for all documents in his Centrelink file;

    (c)he did not receive any notices sent to the Coogee address after June 2016. The Coogee address was not accessible to him after June 2016 due to a falling out with flat-mates;

    (d)the Woollahra address was the address of a support agency; 

    (e)the nominated end date for the temporary Woollahra address (30 June 2016) was not inserted or written by him;

    (f)he believed that the end date was either the result of a computer default process, or human error, but in any event, he was not responsible for inserting that end date; 

    (g)he expected notices to continue to go to the Woollahra address, the address of the support agency, after 30 June 2016;

    (h)he was concerned that Centrelink would raise a debt against him in respect of youth allowance payments to which he was not entitled; and

    (i)Centrelink had made multiple errors in interacting with him.

20. A considerable amount of time was taken up at hearing in tracing the applicant’s address history, a matter complicated by the fact that he was at various points during the relevant period without a fixed abode. At the time he applied for youth allowance he was homeless. 

21. The Tribunal does not find plausible the theory that the computer system was designed to default to a particular date (coinciding with the end of the financial year); and the most likely explanation is that this date was in fact inserted by the applicant, and the Tribunal so finds.

    Was Centrelink’s decision of 7 August 2016 to pay the applicant youth allowance rather than newstart allowance from 2 August 2016 correct?

22. As noted above, the applicant applied for youth allowance on 8 June 2016. His claim was initially refused on 28 June 2016, on the grounds that the course the applicant was proposing to undertake was not full-time.

23. The applicant provided further information regarding his study, and his claim for youth allowance was reassessed.  He was found to be entitled to youth allowance as a full-time student from 2 August 2016, on the basis that he was undertaking three-quarters of the normal amount of full-time study in respect of his course at OTEN.

24. The Tribunal finds that as of 2 August 2016 the applicant satisfied the general qualification requirement for youth allowance specified by s 540, SSA. Specifically, he satisfied the activity test specified in s540(a)(i) by stating an intention to undertake full-time study as that term is defined by s 541B(1), SSA.

    Was the applicant entitled to newstart allowance from 2 August 2016 until 18 January 2018 (when he discontinued his studies)?

25. A person is qualified to receive newstart allowance for a period if, inter alia, the person was not in receipt of youth allowance for that period: s 593(1)(i), SSA. Newstart allowance is not payable to a person who is enrolled in a full-time course of education, from the date that the person starts the course commences to the date the course is completed, abandoned or the person withdraws: s 613, SSA.

26. Because the decision of 7 August 2016 to pay the applicant youth allowance was correct, and because this had the legal effect that newstart allowance ceased to be payable and was cancelled by force of s 90(1) of the Administration Act, no arrears of newstart allowance are payable. Moreover, newstart allowance has its own activity requirements and there is no evidence that the applicant satisfied those requirements throughout the relevant period.

    Administration Act, sections 107 and s 109.

27. The Tribunal notes that the AAT1 affirmed the ARO’s decision on the ground that s 107 applied, and that the applicant was required to seek review within 13 weeks of the August 2016 decision date. This reasoning was adopted in the Statements of Facts, Issues and Contentions filed by the Respondent: see [23]. The AAT1 concluded:

    Section 107 of the Administration Act limits the arrears payable to the date of the request for review. Even if successful in his application, he would be unable to be paid arrears because he is already in receipt of Newstart Allowance. Accordingly, while the grounds of rejection notified by the Department were correct, they are redundant because, even if successful, arrears are not payable (at [5])

28. Section 107(4) provides:

    4 If:

    (a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

    (b)no notice is given to the person informing the person of the original decision; and

    (c)the person applies to the Secretary, under section 129, for review of the original decision; and

    (d)a decision that the claim be granted is made as a result of the application for review;

    The determination embodying the last mentioned decision takes effect on the day on which the determination embodying the original decision took effect.(emphasis added)

29. Section s 107(4) deals with cases where a claim for a social security payment is rejected.

30. With great respect, it seems to the Tribunal that s 109 fits more appropriately to the facts of this case. The contested decision of 7 August 2016 was a decision to approve youth allowance. It is true that the effect of that approval was to extinguish perforce any entitlement to newstart allowance: see s 593(1)(i), SSA. It is nevertheless a strain of language to say that the decision to approve youth allowance was also a “decision” to reject newstart allowance. Section 107 is of course concerned with administrative decisions, not consequences that flow automatically as a matter of law.

31. The governing provision is, in the Tribunal’s opinion, s 109. Section 109 deals generally with any decision made in relation to a person’s social security payment.

32. Section 109(3) provides:

    3If:           

    (a)a decision (the original decision) is made in relation to a person’s social security payment; and

    (b)the person is not given notice of the original decision; and

    (c)the person applies to the Secretary, under section 129, for review of    the original decision; and

    (d)the favourable determination is made as a result of the application for review;

    the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

33. There is no doubt that the original decision made on 7 August 2016 was in relation to the applicant’s social security payment. Section 109(3)(b) requires that the Tribunal is satisfied that he was not given notice of the original decision.

34. In passing, it is interesting to contrast the slightly different language used by the two provisions in relation to notice. Section 107(4)(b) uses the phrase: no notice is given to the person informing the person of the original decision;  whereas and s 109(3)(b) states: the person is not given notice of the original decision. In a case such as the present, where the crucial contested point is not whether notice was given, but whether it was received, this may be a significant difference. It could hardly be argued that no notice was given under s 107(4)(b), because even the applicant conceded that notice was given but, he says, it was sent to the incorrect address.

35. Under s 109(3)(b) the question is whether the applicant was given notice, including constructive notice under s 237 of the Administration Act. The Tribunal notes that even if the facts supported a finding that the applicant was not as a matter of fact given notice, the Respondent relies on s 237 of the Administration Act, which provides as follows:

    Notice of decisions

    1If 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.

    2Notice 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.

    3If 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.

    4This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).

36. In the youth allowance claim form submitted by the applicant on 8 June 2016, the applicant stated that his home address was the Coogee address. He provided the Woollahra address as a temporary address, which was stated to be a temporary address for the period 7 June 2016 to 30 June 2016.  The Tribunal has found as a matter of fact that the end date (30 June 2016) was inserted by the applicant.

37. It is relevant to note the submission contained within the Respondent’s Statement of Facts, Issues and Contentions.

    [47]  In the youth allowance claim form submitted by the Applicant on 8 June 2016, the Applicant stated that his home address was the Coogee address. He provided the Woollahra address as a temporary address, which was stated to be a temporary address for the period 7 June 2016 to 30 June 2016.

    [48]  The Secretary contends that the Coogee address was the residential address last known to the Secretary as at the date of the youth allowance notification letters of 7 August 2016. That address was also the only address known to the Secretary at that time as being the postal address for the Applicant, given that the Applicant had advised that his temporary address of the Woollahra address would cease on 30 June 2016. No alternative postal address is listed as at 7 August 2016 (see T14, 86).

    [49] In the circumstances, the Secretary contends that in accordance with subsection 237(1) of the Administration Act, notice of the decisions to grant youth allowance was taken to have been given to the Applicant, and the Applicant is taken to have been given the decision at the time at which the notice would be delivered in the ordinary course of post unless the contrary is proved.

    [50] The Secretary understands that the Applicant seeks to prove that he should not be taken to have been given the decision, as he states that he did not receive the notice of 7 August 2016. The Secretary contends that there is a lack of evidence currently before the Tribunal to prove that this is the case, and this is something that may be explored in evidence at the Tribunal hearing. However, even if the Applicant does prove that he did not receive notice of the decision of 7 August 2016, the Secretary contends that the Applicant subsequently became aware that he was being paid youth allowance soon after the original grant, and accordingly no arrears would be payable in any event.

    [51]     As has been noted above, the Department sent numerous notices to the Applicant following the original grant of youth allowance on 7 August 2016. These notices advised the Applicant that he was being paid youth allowance, and generally set out the amount of his payments. Some notices also explained the basis on which his youth allowance was payable. For example, the notice of 26 September 2016 (T15, 129-131) explained that his youth allowance was based on him studying full time at OTEN (see also, similarly, the letter of 25 May 2017, T15, 149-151). The Secretary notes that the Applicant conceded before the AAT1 that he had received letters regarding his entitlements (other than the original notification of 7 August 2016) in 2016, 2017 and 2018.

    [52]     Further, it is apparent that the Applicant was well aware that he was being paid youth allowance from, at the latest, 26 September 2016. It was on that date that the Applicant contacted the Department (see T13, 67) following the cancellation of his youth allowance that occurred on 13 September 2016 (see T15, 123-124), and following discussion, his youth allowance was restored (T15, 129-131).

    [53]     In these circumstances, the Applicant was clearly aware that he had been granted and was being paid youth allowance from, at the latest, 26 September 2016. He sought no review of the decision to pay him youth allowance until he attempted to review the original grant decision of 7 August 2016 on 23 May 2018. Even if there were any basis to find that the Applicant should have continued to be paid Newstart Allowance rather than youth allowance (which, for the reasons explained above, is not correct), no arrears would be payable before the date on which review was sought (ie 23 May 2018) in circumstances where the Applicant had received notices that he was receiving youth allowance on numerous occasions after the original grant letter, including notifications of cancellation and restoration of youth allowance. The continuing effect of the 7 August 2016 grant determination only continued until its cancellation on 13 September 2016, and thereafter the Applicant did not seek review of the original grant decision until 23 May 2018.

1. The Tribunal adopts these passages from the Respondent’s SFIC.

   The merits of the case?

2. The applicant contends that he did not receive notification of the original decision to grant him youth allowance made on 7 August 2016, sent by prepaid post to the Coogee address.

3. The case for the applicant, put at its highest, is that he was, from 7 June 2016 to 7 August 2016, the recipient of newstart allowance; that this allowance was changed on 7 August 2016 to youth allowance from 2 August 2016 without his knowledge; that he did not receive any notice of this change; that despite multiple communications and conversations with Centrelink officers he did not become aware of the change until 19 months later on 8 March 2018; that the conversations relating to his studies in May and September 2017 did not relate to youth allowance; that his responses to interruptions to his allowance did not alert him to the fact that he was on youth allowance, even though he provided information relating to his academic progress sufficient to allow the reinstatement of his youth allowance. Try as one might, it is hard to see this theory as anything other than surreal. 

4. The surrealism is compounded by the fact that were his claim to succeed and the 2016 decision set aside, he would be liable to repay to Centrelink as a debt the volume of youth allowance payments received. There is no material before the Tribunal that would enable it to be satisfied that he was entitled to newstart allowance throughout the period to justify any set-off. Newstart allowance has activity requirements and it would need to be determined whether the applicant was eligible for newstart allowance.

5. Fortunately for the applicant, the Tribunal is satisfied that he was entitled to youth allowance in August 2016. It appears that he successfully completed the OTEN course in which he was enrolled in 2016-2017 and in 2018 was exploring enrolling in a postgraduate qualification in Business.

6. The Tribunal is also satisfied, having reviewed the file and listened carefully to the applicant at the hearing, that he did receive notice of the 7 August 2016 decision, and was well aware at all subsequent times that he was in receipt of youth allowance, as opposed to newstart allowance.

   Concluding comments

7. Finally, it is worth commenting on the applicant’s opinion expressed in evidence that Centrelink treated his case with incompetence and indifference. He made these statements with vehemence and passion. Having carefully perused the file the Tribunal is more than satisfied that the opposite is in fact true; namely, that his treatment by Centrelink officers was compassionate, responsive and remarkably efficient. Nowhere is this illustrated more clearly than Centrelink’s response to his claim of homelessness, brought to the attention of a Centrelink officer on Thursday 30 June 2016, resulting in a flow of funds on the very next Monday.  The applicant’s criticism of Centrelink is, with all respect to the applicant, wholly lacking in merit and might even be described as churlish.

8. For these reasons, the decision of the AAT1 (made on 22 October 2018) is affirmed. 

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 17 September 2019

Date(s) of hearing:	24 July 2019
Applicant:	In person
Solicitors for the Respondent:	L Dennis, Department of Human Services