Miskovic and Secretary Department of Employment and Workplace Relations

[2005] AATA 1217

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1217

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/546

GENERAL ADMINISTRATIVE DIVISION		)
Re		MILKAN MISKOVIC

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr M Griffin, Member

Date9 December 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr M Griffin  Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance - whether the applicant can be treated as a single person during relevant period – whether applicant can be paid Newstart Allowance as a single person from date of Newstart claim – decision affirmed

Social Security Act 1991 section 24

Social Security (Administration) Act 1999 subsection 109(2)

REASONS FOR DECISION

9 December 2005   Mr M Griffin, Member  

1. Mr Miskovic seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 2 August 2004. The SSAT set aside a decision made by an authorised review officer (“ARO”) to refuse to pay arrears of disability support pension (“DSP”) and Newstart Allowance (“NSA”) to Mr Miskovic from a date earlier than 3 May 2004 and remitted the decision to the Chief Executive Officer of Centrelink with the direction that Mr Miskovic is to be treated as a single person under section 24 of the Social Security Act 1991 (“the Act”) and that he is entitled to be paid at the single rate during the period 24 May 2001 to 2 May 2004.

issues

2.      The issue before the Tribunal is whether or not Mr Miskovic can be paid as a single person from the date of his claim for NSA on 27 November 1998.

history

3.      Mr Miskovic arrived in Australia with his wife and children as refugees from the former Yugoslavia on 6 June 1992.  In 1994 the family returned to Yugoslavia due in part to his wife’s physical condition.  Mr Miskovic returned to Australia alone and on 10 December 1998 lodged a claim for NSA. The claim form (T4A, p.23D) indicates that Mr Miskovic was “single (never married)”. However in an accompanying statement Mr Miskovic said “I came back to Australia on my own, until I can send for my family to join me” (T40, p.23L). Mr Miskovic was granted NSA as a member of a couple commencing from 27 November 1998 (T5). On 10 December 1998 Centrelink sent a notice to Mr Miskovic advising him of his rate of payment and of his appeals rights (T6,p.25). That letter contained the word “partner” at least 11 times in relation to the circumstances of his payment.

4.      Over the succeeding years, Mr Miskovic received many similar notices from Centrelink.  During this period Mr Miskovic’s sons returned to live with him in Australia.  On 24 May 2001, Mr Miskovic phoned Centrelink to ask whether he was eligible to be paid NSA at the single rate on the basis that his wife could not return to Australia because of her illness.  The Centrelink officer asked him to provide more details of the specific facts concerning his separation (T19, p.71). On 16 August 2001 a notice was issued to Mr Miskovic setting out his payment details, his notification obligations with several references to “partner” and his appeal rights. Further notices of a similar type were issued during the remainder of 2001 and 2002.

5.      On 3 April 2002, Mr Miskovic lodged a claim for DSP stating that he was “married” and included his partner’s name and the date of his marriage (T22, p.80). He was subsequently granted DSP on marriage grounds (T23, p.85).

6.      On 3 May 2004, Mr Miskovic lodged a Module S (separation details) form with Centrelink.  In it he stated that he had been separated from his wife since 2 November 1998 and that “the relationship collapsed because of difficulties with money, no place to live, no assets of any kind” (T28, p.96).  Centrelink accepted that Mr Miskovic was a separated person.  On 4 May 2004 Centrelink issued a letter to Mr Miskovic advising him that his rate of pension would increase accordingly (T30, p98).  On 6 May 2004 Mr Miskovic phoned Centrelink advising that he wished to be paid at a single rate from 1998; when he first “became single” (T31, p100).  He made a similar call the following day (T32, p101).

7.      On 11 May 2004 a Centrelink officer decided that Mr Miskovic is not entitled to be paid the single rate from 1998.  Mr Miskovic requested review of the decision.  On 18 May 2004 a Centrelink delegate decided that Mr Miskovic could not be paid the single rate before 3 May 2004 and on 4 June 2004 an ARO affirmed that decision.

8.      Mr Miskovic appealed to the SSAT. The SSAT set aside Centrelink’s decision and decided that Mr Miskovic was entitled to be paid at a single rate during the period 24 May 2001 to 2 May 2004 (T2).

consideration

9. The SSAT decision was based on the finding that the 24 May 2001 telephone call from Mr Miskovic to Centrelink was a request to be treated as a single person and as such amounted to a request for review of the decision dated 10 December 1998 that Mr Miskovic be paid as a member of a couple. The SSAT found that no decision on the 24 May 2001 request had been made or notified by Centrelink, that Mr Miskovic was not living separately and apart from his partner on a permanent or indefinite basis but that there were special reasons to treat him as being not a member of a couple pursuant to section 24 of the Act. The SSAT found that the favourable decision could take effect from 24 May 2001 in accordance with subsection 109(2) of the Social Security (Administration) Act 1999 (“the Admin Act”).

10.     In his evidence to the Tribunal, Mr Miskovic said that he had relied on Centrelink to make the correct payment after his December 1998 claim.  He said that he had acted in good faith and that it was not until a friend told him in 2004 that his payment was too low that he queried it.  He said “I went to Centrelink to find why my other friend in same circumstances gets more than me”. He said this was about April 2004.

11.     Mr Miskovic said that while he and his wife and sons were in the former Yugoslavia, he had not lived with them.  He said that he had been a volunteer fighter and spent most of his time in a war zone.  He said that he maintained telephone contact with the family and was aware of their residential circumstances.  He said that they moved several times and on each occasion they were able to re-establish contact.  He said that when he returned to Australia it was his intention that his sons would join him and live permanently in Australia.  Mr Miskovic didn’t know what his wife’s intention was with respect to living permanently in Australia at that time. He said that there had been problems in their relationship during that period.

12.     Mr Miskovic denied calling Centrelink in May 2001. He said “They invented a date in 2001. They said I rang and told them I was separated. I did not speak to them on the phone. I never have spoken to them on the phone, my English is not good enough. They never sent me a letter.”  

13.     In cross-examination Mr Miskovic was referred to a Centrelink computer record (T19, p.71) of his request about the single rate.  Mr Miskovic said “I did not have this conversation with anybody.”  It was put to him that he did have a conversation as recorded on T9-10 and that he was asked in that conversation to provide a letter with further details about his wife’s circumstances. He said “No, I never had that conversation”.  

14.     I asked Mr Miskovic if he accepted the evidence that Centrelink operates multilingual call centres. He said “Yes and I have used it few times but not that time. I have not received any documentation from them to send to my wife in Serbia.”  I pointed out to Mr Miskovic that he had previously given evidence that he had never spoken to Centrelink on the telephone and that because of this contradiction in his evidence I had some concerns about the credibility of his claims that the conversation recorded at Tp71 was an invention by Centrelink as he claimed.  Mr Miskovic replied “Maybe there was a conversation about the money as mentioned in that record. If there was another conversation I would be stupid not to do something about that. There was no word about being paid separately.”  

15. Pursuant to section 109 of the Admin Act, Mr Miskovic effectively had 13 weeks from the 10 December 1998 to apply for a review of that rate decision. He did not do so. The evidence is that during the relevant period his marital status was somewhat equivocal but on the face of documentation the parties were not living separately and apart on a permanent or indefinite basis. It was not until the telephone call of 24 May 2001 that Mr Miskovic raised the question of his marital status with Centrelink. I accept the evidence at Tp71 that the conversation as there described did in fact take place. Mr Miskovic’s oral evidence was characterised by evasiveness and inconsistency. Where his evidence conflicts with the documentary record I prefer the documentary record for those reasons.

16.     It follows for these reasons that any favourable decision to pay arrears to Mr Miskovic could not have effect before 24 May 2001.

decision

17.     The Tribunal affirms the decision under review.  

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         A. Krilis  Associate

Date/s of Hearing  28 October 2005
Date of Decision  9 December 2005
Representative for the Applicant    Self
Advocate for the Respondent        Mr John Kenny