Morris and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 844

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )         

)No. 2007/0644

GENERAL ADMINISTRATIVE DIVISION		)
Re		LINDA LEE MORRIS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:5 September 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal sets aside the reviewable decision dated 10 January 2007 and in substitution decides that Ms Morris is entitled to receive parenting payment at the single rate for the period 28 May 2004 to 25 October 2004, and that arrears of the difference between the rate of parenting payment partnered and parenting payment single are payable from 28 May 2004 to 25 October 2004 inclusive.  

(sgd) G.D. Friedman

Senior Member

TRANSCRIPT OF PROCEEDINGS

O/N 90173

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. V2007/644

MORRIS

and

SECRETARY, DEPARTMENT OF
EDUCATION, EMPLOYMENT AND
WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

FRIDAY, 5 SEPTEMBER 2008

MS L. MORRIS appears in person

MS H. WESTON appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [11.35 am]

MR FRIEDMAN:   Well, the main issue in this case is really whether Ms Morris notified Centrelink of her wish to review the decision of 31 October 2001, relating to a parenting payment rate.  First of all, it is fairly obvious that these events took place a long time ago, seven years, and it is a long time to remember, and particularly to try and remember the detail of dealings with a government agency that Ms Morris has had many dealings with, and let me emphasise that I am not saying that Ms Morris is lying.  Where there is some dispute about the actual occurrences on particular dates, where her recollection differs from the official record, I would put that down to the passage of time and also the difficulty of dealing with different officers in Centrelink.

I accept Ms Morris’s concerns that she has had great difficulty getting much satisfaction out of Centrelink.  Different people have given her different advice, and events such as being asked to leave the Centrelink office when Ms Morris and her friend believed that there was a document that Centrelink had, that is the form that the particular person in Centrelink disputed, and then Ms Morris was forced to leave.  No doubt to great embarrassment to herself and that probably had an impact on her future dealings with that particular Centrelink office.  It is also clear that because of the passage of time, a lot of documents have disappeared or, for some reason, are not available.  Ms Morris says that she kept fairly good records of her conversation with Centrelink but there are certainly gaps in relation to this. 

It also goes without saying that any long term relationship that breaks down does not necessarily break down for one incident or at one point of time.  It may, in fact, linger and the parties might at various points of time either believe or hope that the relationship might be resurrected and that seems to be the case in one of the documents that was contained in the T documents, where Ms Morris wrote words such as “I hope so” in relation to the question, “Do you expect or do you hope for the relationship to resume or continue,” or something like that, and she wrote, “I hope so,” which is understandable and it may well be that those types of answers were used by Centrelink to give a particular outcome when, in fact, it was not the intention at all.

Ms Morris may, at that time, have said if she was asked in more detail, she might have said, “Look, the relationship is over, and it would be better for everyone if it did resume, but in the circumstances and the way he and I have interacted, it probably won’t.”  I am just saying that is how the discussion might have gone had more questions been asked and also when people are filling in forms like this, sometimes they do not want to say their relationship has broken down forever if there is some possibility in the future.

I also take into account that in February 2002 Ms Morris completed entitled Partner Details, and that is exhibit R, in which when giving details of her partner in question 3 she ticked the box with “married,” which is not in dispute, but did not tick the box,

“separated.”  And once again, I mean, I seem to recall her evidence on that point was that she did not remember filling in the form and with all the Centrelink requirements and forms to be filled in over the years, I am not really surprised.  But it is no great surprise also that Centrelink might have used that as part of their overall view that, at that particular time, she was not separated and on that basis, she would still be paid at the partnered rate.

I have to look at all the documents and come to a view on the balance of probabilities and while I have stated that I am quite certain that Ms Morris is not lying, I can really on go by what is in the documents as a whole, and it seems to me that certainly Ms Morris had some grave concerns about the way Centrelink was treating her.  But section 109 of the Act requires her to seek a review within the 13 weeks and frankly, I just do not think that that happened.  Yes, she made her views known to Centrelink that she was not happy and Ms O’Keefe confirms that she was with Ms Morris on a number of occasions visiting Centrelink or when Centrelink was contacted and Ms Morris made her point about being dissatisfied with various aspects.  But it seems to me that section 109 requires an application for review and the letters from Centrelink make it clear that within 13 weeks a person needs to complete that review.

Now, while that may sound fairly bureaucratic, I think there is an onus on the person to actually make the application for review and, once again, I do accept that Ms Morris was very unhappy with being told, “Go home and sort it out.  Everything will be fine,” that type of attitude which is a rather patronising sort of view that nobody would think is appropriate in the circumstances.  But I just have formed the view, on the balance of probabilities, that Ms Morris’s contact with Vilma may well have been at around about the time when the decision was made.  After all, Vilma was the original decision-maker.  But I do not believe that the contact constituted an application for review, so, I am against Ms Morris for that reason.

As far as later applications are concerned, it was put in the statement of facts and contentions, on behalf of Ms Morris, that she contacted Centrelink on 29 February 2002 and that under the authority of previous decisions, Front and Kelly, that the most informal query should be considered a request for review.  In my view, as was pointed out by Ms Weston, the decision in Mitchell (2006) is relevant where it was stated, in paragraph 36:

In my opinion, it is necessary to consider the terms of the communication to determine whether the communication, construed objectively, identified the relevant decision and informed the recipient that the person wished to apply for review of that decision.

Now, I am looking at the record of that particular conversation.  It does appear to me more likely that the main purpose of that query was in relation to Mr Morris, so I do not accept that that contact on 19 February 2002 was an application for review.  On the other hand, I do agree with Ms Weston that the Social Security Appeals Tribunal decision that restricted the review to the end of 2004 was not correct.  She was notified on 16 November 2004 of the favourable decision to pay her at the single rate.  The SSAT found that she did not seek a review of that decision until August 2005.  I agree with the concession made by Ms Weston that she actually attended on 26 July 2004 and the request for review was, in fact, made within 13 weeks of 28 May 2004, and therefore the arrears or the difference between the rate of parenting payment partnered and single were payable from 28 May 2004 to 25 October 2004 inclusive.

So my decision is that the decision under review is set aside and is substituted with a decision that Ms Morris is entitled to receive parenting payment single rate from 28 May 2004 and the arrears and difference between rate of parenting payment partnered and parenting payment single payable from 28 May 2004 to 25 October 2004 inclusive.  And the decision is otherwise affirmed.

Ms Morris, I haven't found totally in your favour, but I have found a little bit in your favour at that time, and once again, I just want you to understand that I have to base my decision on all the material and the documentary material made at the time was generally more reliable but I don’t want you to go away from here thinking that I haven't believed you.  Okay.

MATTER ADJOURNED at 11.46 am INDEFINITELY