Mona El-Moustafa and Secretary, Department of Social Services (Formerly Secretary, Department of Education, Employment and Workplace Relations)

[2013] AATA 686

[2013] AATA 686  

Division

GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4075

Re

Mona El-Moustafa

APPLICANT

And

Secretary, Department of Social Services

(Formerly Secretary, Department of Education, Employment and Workplace Relations)

RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	26 September 2013
Place	Melbourne

The Tribunal affirms the decision under review.

...........[sgd].............................................................

Regina Perton, Member

SOCIAL SECURITY – newstart allowance – whether partnered or single – despatch of notices – date of deemed receipt of notice – whether review undertaken by Secretary of cancellation decision – whether review sought 13 weeks after Secretary’s decision – decision affirmed

Legislation

Acts Interpretation Act 1901 section 29

Evidence Act 1995section 160

Social Security Act 1991 sections 237, 631

Social Security (Administration) Act 1999 sections 68, 95

REASONS FOR DECISION

Regina Perton, Member

26 September 2013

1. Mona El-Moustafa received newstart allowance (NSA) from 14 January 2011 at the single rate.   Centrelink, which administers NSA, cancelled Mrs El-Moustafa’s NSA later that year with the effective date being 9 August 2011.  Centrelink reinstated Mrs El-Moustafa’s NSA from 12 December 2011.  Mrs El-Moustafa is seeking arrears of NSA between 9 August 2011 and 11 December 2011.

   BACKGROUND AND EVIDENCE

2. There are two major issues relating to Mrs El-Moustafa’s NSA payments in the period between August and December 2011.  One concerned the failure to lodge a report, which NSA recipients are required to do periodically on a date specified by Centrelink.  The other was a Centrelink decision on 9 August 2011 that Mrs El-Moustafa was a member of a couple. 

3. In relation to the requirement to lodge reports periodically, initially Mrs El-Moustafa was only required to do so every 12 weeks but that was later changed to every two weeks. 

4. On 25 July 2011 Centrelink sent a letter to Mrs El-Moustafa reminding her that a Reporting Statement (Application for payment) (reporting statement) which was sent to her on 28 June 2011, needed to be lodged on 8 August 2011.  That statement covered Mrs El-Moustafa’s income and activities for a period ending 8 August 2011. 

5. On 28 July 2011 Centrelink wrote to Mrs El-Moustafa advising her that an appointment had been made with a Customer Service Adviser, to discuss how we may be able to help you.  That appointment was set for 11 August 2011. A Centrelink file note on that day notes information about family tax benefit and that Mrs El-Moustafa had no income apart from income support payments.  The file note does not provide any information as to whether Mrs El-Moustafa attended the appointment on 11 August 2011 or if anything apart from FTB was discussed.

6. On 8 August 2011 Centrelink wrote to Mrs El-Moustafa advising her of the amount of her fortnightly payment and enclosing another reporting statement which needed to be completed 12 weeks later, on 31 October 2011.

7. On 9 August 2011 Centrelink decided that Mrs El-Moustafa was a member of a couple and that her estranged husband’s income would be taken into account in assessing the amount she would receive.  On the same day Centrelink wrote to Mrs El-Moustafa advising of its finding. 

8. Centrelink sent another letter on 9 August 2011 advising that an appointment had been made for Mrs El-Moustafa to attend a personal contact interview on 20 September 2011.

9. On 16 August 2011 Mrs El-Moustafa requested a review of the decision dated 9 August 2011 to consider her as partnered.  On the same day Centrelink sent her a Relationship details – separated under one roof form which required her to provide relationship details.

10. On 19 August 2013 Centrelink sent another reporting statement to Mrs El-Moustafa which was to be lodged on 22 August 2011. 

11. On 19 August 2011 Mrs El-Moustafa had a telephone conversation with a Centrelink officer about her relationship. Subsequently, Centrelink advised Mrs El-Moustafa by letter that the earlier decision that Mrs El-Moustafa was partnered had been affirmed.  In that letter, Mrs El-Moustafa was told that she was required to return a reporting statement every 12 weeks.  However, in a later paragraph she was asked to report for the period between 9 August 2011 and 22 August 2011, that is for a two-week period.  Centrelink’s records note that Mrs El-Moustafa would now be required to report every two weeks.

12. On 19 August 2011 Centrelink also sent a statement to Mrs El Moustafa for the period between 17 May 2011 and 19 August 2011.  She was asked to check the information in this statement carefully and if the details are correct there is no need for you to contact Centrelink. 

13. On 29 August 2011 Centrelink wrote to Mrs El-Moustafa indicating that the reporting statement due on 22 August 2011 had not been received. 

14. On 6 September 2011 Centrelink wrote to Mrs El-Moustafa stating that NSA had been cancelled from 9 August 2011 as she had not returned the relevant reporting statement.  A fresh reporting statement for the period between 9 August 2011 and 22 August 2011 was also sent to her that day.

15. On 16 September 2011 an ARO advised Mrs El-Moustafa that the decision concerning her marital status had been affirmed.  Mrs El-Moustafa sought review by the SSAT of the ARO’s decision.  On 24 November 2011 the SSAT set aside the ARO’s decision and decided that Mrs El-Moustafa was not partnered and entitled to receive NSA at the single rate backdated to 9 August 2011. 

16. Centrelink did not communicate with Mrs El-Moustafa about the SSAT decision until 7 December 2011 even though the decision had been made 13 days earlier.  On 7 December 2011, Centrelink advised Mrs El-Moustafa that she had to reapply for NSA because her NSA had been cancelled for more than 13 weeks.  On Centrelink’s advice, Mrs El-Moustafa made a fresh claim for NSA to enable implementation of the SSAT decision, on 12 December 2011. Centrelink paid NSA to Mrs El-Moustafa from 12 December 2011 on the basis of the fresh claim.

17. Centrelink records indicate that on 20 December 2011 Mrs El-Moustafa requested a review of the decision to cancel payment of NSA due to her failure to lodge a reporting statement in August 2011.   An ARO affirmed the decision on 15 May 2012 and the SSAT also affirmed the decision on 30 August 2012.  Mrs El-Moustafa lodged the current review application with this Tribunal on 17 September 2012.

18. During the hearing on 20 March 2013 and 5 April 2013, Mrs El-Moustafa gave evidence as did her son, Khaled El-Moustafa who represented her.  An Arabic interpreter facilitated communication between Mrs El-Moustafa and the Tribunal.  

19. Mrs El-Moustafa stated that she was conscientious about filling out forms and complying with other Centrelink requirements.   She does not believe that she received the letters concerning the reporting statements.   Mrs El-Moustafa said that she always asks one of her adult children to assist her when she receives correspondence from Centrelink. 

20. Mrs El‑Moustafa said that she had several contacts with Centrelink during the relevant period but no one had asked her about the reporting statement.   She thought that her payments had ceased while the reviews were undertaken of her partnership status and expected that they would resume following the SSAT decision about that matter.

    LEGISLATION AND SUBMISSIONS

21. Mr El-Moustafa had undertaken extensive research concerning the deemed receipt of correspondence under Commonwealth legislation. He contended that if one takes the provisions of section 160 of the Evidence Act 1995 into account, his mother’s application for review was made within 13 weeks of notification of cancellation. Section 160 states:

    Postal articles

    (1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

    …

    (2)In this section:

    "working day" means a day that is not:

    (a)a Saturday or a Sunday; or

    (b)a public holiday or a bank holiday in the place to which the postal article was addressed.

22. Mr El-Moustafa set out relevant passages from over 20 Tribunal decisions where the Tribunal took into account the provisions of section 29 of the Acts Interpretation Act1901 and section 160 of the Evidence Act 1901 in determining when correspondence was deemed to have been received after postage by a Commonwealth agency. 

23. Section 29 of the Acts Interpretation Act 1901 states:

    Meaning of service by post

    (1)Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

    (2)This section does not affect the operation of section 160 of the Evidence Act 1995.

24. The social security legislation sets out methods for service but does not prescribe specific time limits for the deemed receipt date of a decision letter sent in the ordinary course of the post. Section 237 of the Social Security (Administration) Act 1999 sets out the way decisions made in relation to social security recipients can be served:

    Notice of decisions

    (1)If 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.

    (2)Notice 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.

    (3)If 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.

    (4)This 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).

25. At the conclusion of the hearing, the Tribunal asked the respondent’s representative, Ms Bramley, if she could seek instructions and provide additional submissions, if appropriate, as a result of the contentions made at the hearing.  Ms Bramley provided a written submission dated 10 April 2013.  Ms Bramley undertook a comprehensive examination of the decisions made by Centrelink personnel and the SSAT concerning the cancellation following Mrs El-Moustafa’s failure to provide the reporting statements.  Her submission is reproduced below:

    1.On 8 August 2011, Mrs El-Moustafa was sent a reporting statement to be lodged on 31 October 2011… At this stage, Mrs El-Moustafa was required to lodge statements every 12 weeks. 

    2.On 19 August 2011:

    §Mrs El-Moustafa’s reporting cycle was changed to fortnightly reporting as a result of being assessed as partnered;

    §. a new reporting statement was sent to Mrs El-Moustafa to be lodged on 22 August 2011.  This statement was in respect of the period 9 August to 22 August 2011…

    3.On 6 September 2011, newstart allowance was cancelled by virtue of section 95 Social Security (Administration) Act 1999.  A notice advising of the decision was issued to Mrs El-Moustafa on that day.

    4.As identified at the hearing in this matter there are two issues:

    i.Did Mrs El-Moustafa request a review of the decision to cancel newstart allowance within 13 weeks of being given a notice of the decision?

    ii.Was the decision to cancel newstart allowance correct?

    5.The authorised review officer describes the decision under review as the cancellation of newstart allowance.  However, the decision refers to the decision to cancel (as a result of failure to return the reporting statement), then addresses the issue of whether Mrs El-Moustafa requested a review within 13 weeks of being given a notice of the decision to cancel payments and finally concludes with reference to “the earliest your claim for newstart allowance can be taken to have been made is 12 December 2011”.

    6.The Secretary contends the authorised review officer has not reviewed the decision to cancel payment of newstart allowance due to failure to return the reporting statement on 22 August 2011.

    7.The Social Security Appeals Tribunal (SSAT) describe the issue for determination to be:

    “whether Mrs El-Moustafa is entitled to be paid arrears of newstart allowance during the period 9 August to 11 December 2011”.

    8.The SSAT, after consideration of whether the reporting statement or the notice advising of the cancellation were sent, went on to address whether Mrs El-Moustafa requested a review of the decision within 13 weeks of being given a notice of the decision.  The SSAT conclude:

    18.Therefore, applying the provisions of section 109 to Mrs El-Moustafa’s case, the Tribunal is satisfied that she was advised of the decision to cancel her newstart allowance on 6 September 2011. She sought review of that decision on 12 December 2011 which is more than 13 weeks after the date of notification. The decision to restore her newstart allowance can take effect from 12 December 2011 only, and she is unable to be paid arrears for any earlier period.

    9.The Secretary contends the SSAT has not reviewed the decision to cancel newstart allowance.  Instead the SSAT considered the start date for the new claim (deemed to have been made by Mrs El-Moustafa on 12 December 2011) and when Mrs El-Moustafa made a request for a review of the decision to cancel newstart allowance. 

    10.Neither the authorised review officer nor the SSAT have addressed:

    §section 95 SSAA that provides for the automatic cancellation where a person fails to provide a statement issued under section 68 of the [Social] Security (Administration) Act 1999, including subsection 95(2) that allows the Secretary to determine that section 95(1) does not apply;

    §section 631 of the [Social] Security Act 1999 that states newstart allowance is not payable where a person fails to comply with a requirement made under section 68 SSAA.

    11.The Secretary notes:

    §section 95 enables the decision-maker to determine that the automatic cancellation does not apply given the special circumstances; and.

    §section 631 requires the decision-maker to consider the reasons for the late lodgement of a section 68 statement.

    12.The Secretary also notes that the Guide to social security law provides guidance to decision-makers in considering whether to accept a late lodged statement.  The Guide at 3.2.1.70 states, in part:

    3.2.1.70 Notification & Recipient Obligations for NSA

    ...

    Late lodgement of statements

    Where a person who is required to stimulate their payment by lodging an Application for Payment form does not do so by the due date, payment will not be generated. This delay may also affect the person's partner. A person who misses 2 lodgements will have their payment automatically cancelled, unless there are special circumstances that justify the late lodgement. Late lodgers may be asked to explain the circumstances that prevented them lodging on time to determine:

    •whether or not the reason is acceptable,

    •if special circumstances apply for lodging the form late, and

    •if payment will be approved.

    Example 1: Centrelink contributed in some way to the delay, by not giving necessary information when requested, or by giving incorrect information.

    … .

    13.The Secretary submits that if the Tribunal were to find that Mrs El-Moustafa did request a review of the decision to cancel payment of newstart allowance (and it is not conceded this point) the matter should be remitted for consideration of the circumstances surrounding the cancellation, including Mrs El-Moustafa’s reasons for not lodging the form on 22 August 2011.

    DID MRS EL-MOUSTAFA SEEK REVIEW WITHIN 13 WEEKS OF NOTIFICATION OF AUTOMATIC CANCELLATION OF NSA?

26. The automatic decision to cancel Mrs El-Moustafa’s NSA due to her failure to submit a reporting statement was made on 6 September 2011, a Tuesday.  Centrelink’s letter was posted to Mrs El-Moustafa on that day.

27. The Tribunal finds that it is appropriate to apply the deemed date of receipt according to the provisions set out in Section 160 of the Evidence Act 1901.  Four working days are allowed for service of mail under that provision.  That would result in a deemed date of receipt of the following Monday, namely 12 September 2011.  Thirteen weeks after 12 September 2011 is 12 December 2011.

28. A Centrelink file note on 6 December 2011 states the following:

    …as more than 13 weeks since cancellation cust[omer] will be required to reclaim as she did not lodge required form. as no payment made after 9/8/11 there are no arrears payable at this time.  appeal system updated to show decision has been implemented.

29. While Centrelink made the decision on 6 September 2011 to cancel Mrs El-Moustafa’s NSA for failure to lodge the reporting statement, she was not told about the decision on that date.  Mrs El-Moustafa is deemed to have received notification of the cancellation by 12 September 2011.  Hence, the premise that it had been 13 weeks since notification on 6 December 2011 was not correct. 

30. If Mrs El-Moustafa had been advised that she was still within the 13 week period up to and including 12 December 2011 and that she still had an opportunity to explain her reasons for failing to lodge the reporting statement in August 2011, she  may well have qualified for payment in the period between 9 August 2011 and 11 December 2011.  It is noted that the SSAT decision concerning her marital status was on 24 November 2011.  The decision referred back to 9 August 2011 as the relevant date for payment.  The Tribunal is satisfied that if Mrs El-Moustafa had realised that she had to make a separate review application on or before 12 December 2011 in relation to the cancellation for failure to lodge the reporting statement, she would have done so.

31. Centrelink records show that it was not until 20 December 2011 that Mrs El-Moustafa applied for review after being advised that she was not receiving NSA payments back to 9 August 2011.  The date of application for review was one week outside the 13-week period which could have resulted in back payment if her application was successful.

32. The Tribunal considered whether Mrs El-Moustafa's fresh claim or other contacts with Centrelink within 13 weeks of the cancellation can be deemed to also be an application for review of the cancellation for failure to lodge a reporting statement.   However, the Tribunal is not satisfied that any of the contacts prior to 12 December 2011 could be deemed to be requests for review of the cancellation of NSA on 6 September 2011.

33. The Tribunal concurs with Ms Bramley’s analysis that the ARO and SSAT did not fully review the cancellation decision.  However, that would not have changed the current situation.  Even if the Tribunal found that there were special circumstances, which is highly likely, the 13-week rule would have meant that the payment could not have been backdated as the review does not appear to have been sought until 20 December 2011.

1. The Tribunal is of the view that the provision of incorrect information has directly impacted on Mrs El-Moustafa’s situation.  Missing out on four months of NSA payments has resulted in a loss that may well have been avoidable had there been correct advice given to Mrs El-Moustafa at the appropriate time.   Not only was there an incorrect assumption about the actual expiry date when the 13-week period after cancellation for failure to return a reporting statement, but there was a two-week delay between the SSAT decision concerning Mrs El-Moustafa’s marital status on 24 November 2011 and Centrelink’s contact with her on 7 December 2011.  While it is quite in order for two weeks’ consideration of whether an application for review should be made to this Tribunal by the respondent, earlier notification by Centrelink to Mrs El-Moustafa about the SSAT outcome and her situation may well have resulted in a different outcome.

2. The Tribunal recommends that the respondent consider an ex-gratia payment in this case. The Tribunal does not usually recommend such a response in its written reasons for decision.  However, this is a matter where it believes it is appropriate to do so.

3. The Tribunal would also like to acknowledge the valuable assistance of Ms Bramley in this and a number of other matters where she has represented the respondent.  She epitomises the model litigant. 

4. The Tribunal also notes the assistance of Mr El-Moustafa in raising relevant issues in this matter and in his extensive research on behalf of his mother.

   DECISION

5. The Tribunal affirms the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

........[sgd]................................................................

Associate

Dated 26 September 2013

Date(s) of hearing	20 March 2013, 5 April 2013
Date allowed for final submission	15 July 2013
Advocate for the Applicant	Mr K El-Moustafa
Advocate for the Respondent	Ms A Bramley
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services