Mulhallen and Department of Family and Community Services
[2001] AATA 80
•7 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 80
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/839
GENERAL ADMINISTRATIVE DIVISION)
Re: ALISON LYLE MULHALLEN
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 7 February 2001
Place: Melbourne
Decision:The decision under review is varied to now provide that job search allowance ("JSA") was payable to the applicant from the date she lodged her claim for JSA in 1991. The day on which this decision has effect however is the day on which the application was made to the Social Security Appeals Tribunal for review of the decision under review, 14 January 1998.
The Tribunal further decides that the applicant is not entitled to be paid JSA between 5 April 1995 and 6 September 1995.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — job search allowance ("JSA") — authorised review officer's decision affirming rejection of claim for JSA 1992 due to assets — whether written notice of decision given to applicant — further inquiries with respect to entitlement to JSA made in April 1995 — claim for JSA lodged September 1995 — JSA granted September 1995 — request for arrears of JSA — application for review to Social Security Appeals Tribunal January 1998 — date from which favourable decision can have effect
Social Security Act 1991 ss. 601, 1131, 1243A, 1255(4)
Social Security Act 1947 ss.168(4)(ca), 173
Social Security (Administration) Act 1999 s.179
Acts Interpretation Act 1901 ss.28A, 29
Secretary, Department of Social Security v Sevel (1992) 110 ALR 627
Secretary, Department of Social Security v O'Connell (1992) 110 ALR 627
Re Secretary, Department of Social Security and Mosca (AAT 13155, 5 August 1998)
Re Katsimalis and Secretary, Department of Social Security (1994) 36 ALD 759
REASONS FOR DECISION
7 February 2001 Mrs H.E. Hallowes, Senior Member
A decision was made by the Tribunal in this matter on 5 March 1999 that the decision of the Social Security Appeals Tribunal ("the SSAT") dated 1 June 1998 be affirmed. The applicant appealed against the decision to the Federal Court of Australia and on 22 June 2000 Heerey J ordered that:
1.The decision of the Administrative Appeals Tribunal made on 5 March 1999 with respect to "Decision 1" of the Social Security Appeals Tribunal (the subject of this appeal) and referred to in the reasons for the decision of the tribunal, be set aside and remitted to the tribunal to be heard and determined according to law by a differently constituted tribunal.
. . .[CHECKED]
In paragraph 1 of its reasons for decision dated 5 March 1999 the Tribunal noted that it was reviewing a decision of the SSAT, that the applicant was not entitled to arrears of job search allowance ("JSA") for any period prior to September 1995 (Decision 1). The SSAT also affirmed a decision to raise and recover a debt of $945.47, being JSA overpaid to her during the period 25 November 1995 to 15 March 1996 (Decision 2). That decision was not the subject of appeal.
At the hearing the applicant was represented by Ms A. Bogan, of counsel, the Secretary being represented by Mr M. Todd, an advocate with Centrelink. The Tribunal had before it a copy of the Federal Court Appeal Book which included, as well as the material referred to above, the documents lodged by the Secretary pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Further material was placed before the Tribunal by both parties.
The matter before the Tribunal concerns whether the applicant is entitled to arrears of JSA for any period prior to September 1995. The applicant told the Tribunal that she contends that she is entitled to be paid JSA between 1 October 1991 and 27 July 1992, and between 5 April 1995 and 6 September 1995. The determination of those matters depends on, firstly, a finding of fact whether the applicant had been given notice of a decision of an authorised review officer ("ARO") made on 22 June 1992 and, secondly, whether she can be paid JSA before she lodged a claim form for JSA on 6 September 1995. The applicant had not raised the issue of her entitlement with respect to the second period before making submissions to this Tribunal but, in light of the terms of the decision under review the Tribunal is satisfied it has jurisdiction to consider the applicant's entitlement to JSA during both periods.
In its reasons for decision, given on 1 June 1998, the SSAT said:
The most relevant issue to be decided in relation to the decision to reject Ms Mullhallen's claim for jobsearch allowance in 1992 is the length of time between the making of the authorised review officer's decision and her appeal to this Tribunal. This is irrespective of the merits of the original decision.
The Social Security Act 1991 sets out time limits which affect when Tribunal decisions take effect. In particular, s.1225(4)[sic] provides that if a person does not appeal to the Tribunal within 3 months of the decision then a favourable decision can only have effect from the date the appeal is made to the Tribunal. In Ms Mullhallen's situation, the authorised review officer decision was made on 22 June 1992 and Ms Mullhallen appealed to this Tribunal on 14 January 1998. The period is much
longer than three months. As a consequence, even if the Tribunal considered the merits of the decision to reject Ms Mullhallen's claim in 1992, any decision of the Tribunal could only take effect from the 14 January 1998.
. . .At the relevant time the relevant subsection, 1255(4) of the Act, provided:
1255(4) If:
(a)a person is given written notice of a decision (including a decision of the Secretary or an authorised review officer made under section 1243) under this Act; and
(b)the person applies to the SSAT more than 3 months after the notice was given, for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the SSAT's decision is:
(i)to grant the person's claim for a pension, benefit or allowance; or
(ii)to direct the making of a payment of pension, benefit or allowance to the person; or
(iii)to increase the rate of the person's pension, benefit or allowance;
subsection (3) applies as if references in that subsection to the day on which the decision under review had effect were references to the day on which the application was made to the SSAT for review of the decision under review.
Note: meaning of "given" — sections 28a and 29 of the Acts Interpretation Act 1901 provide that a notice is given:
(a)to a natural person if the notice is:
·delivered personally; or
·left at the last known address of the person; or
·sent by prepaid post to the last known address of the person; and
(b)to a body corporate if the notice is left at, or sent by prepaid post to, the head office or a registered office or a principal office of the body corporate.
The above Note reflects the provisions of section 28A of the Acts Interpretation Act 1901. Section 29 of that Act provides:
29(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 unless the contrary intention appears 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.
Mr Todd put to the Tribunal at the hearing that, if it found that notice of the decision of the ARO made on 22 June 1992 was not given to the applicant, then the matter should be remitted to the SSAT to make a decision on the merits, including relevant hardship considerations. The second period in 1995, during which the applicant contends she was entitled to be paid JSA/newstart allowance, is the period from when she contends she approached the Department of Social Security ("the department") again with respect to her entitlement to JSA to the date she lodged a claim for JSA with the department. It appears from the documents that the applicant was registered as unemployed by the Commonwealth Employment Service ("the CES") on 4 September 1995. In his letter dated 28 September 1995 the ARO referred to the relevant legislation with respect to the day from which JSA is payable and the Tribunal will not reproduce the relevant legislation here.
The applicant gave oral evidence to the Tribunal that, in October 1991, she attended a regional office of the department following a series of events in her life over which she had no control and which affected her financial circumstances, leaving her considerably in debt. She described her circumstances as "an absolute disaster". She said that assets in her name were collateral for a large overdraft at a bank with respect to a special accommodation home she had been "running". She lodged a claim for JSA. She was advised that JSA was not payable to her because of her assets. The applicant provided the Tribunal with a copy of a letter from a delegate of the Secretary to the bank, dated 23 April 1992, which asked about her financial circumstances. She was referred to a departmental social worker in December 1991. She had not been given a copy of any decision in writing with respect to her entitlement to be paid JSA. She felt unwell and in late December she was diagnosed as suffering from glandular fever and hepatitis. She was not notified that she may lodge a claim for sickness benefit. She became so sick she was unable to attend the regional office about the issue of her entitlement to JSA but she continued to telephone the office about the issue of her entitlement to JSA.
In May 1992 the social worker filled out a further claim form for JSA for the applicant and she signed it. By letter dated 15 May 1992, she was advised in writing that her claim had been rejected. So far as relevant, the letter states:
Your claim for consideration under the hardship provisions of the assets test has been carefully considered.
. . .
Under the provisions of Section 1131(1)(e) of the Social Security Act 1991, a claimant for payment under the hardship provisions must demonstrate that they have an "unrealisable" asset. An unrealisable asset is an asset which has a legal restriction preventing the sale of the asset or which is available for sale at market price but for which there are no purchasers. It has been established that there is no legal restriction preventing the sale of your units in Elwood and Balwyn and therefore before payment can be made to you under the Hardship provisions it must be proven that you are unable to sell these properties at current market price.
. . .
On 27 May 1992 the applicant asked that the decision be reviewed by an ARO.
Departmental computer records disclose that the ARO affirmed the decision on 22 June 1992 and that that decision was "implemented" by the regional office on the same day:
ARO Decision AFFIRMED
ARO Decision Date: 22 JUN 92
ARO Reason: OTHER
Advice Dispatched Date: 22 JUN 92
Forwarded to RO Date: 22 JUN 92
Received in RO Date: 22 JUN 92
Implementation by RO Date: 22 JUN 92
It was the applicant's evidence however that "I never heard anything". She went on to say, presumably with respect to the original decision:
. . . So I got the letter saying it had been refused, which is exactly the same grounds as what they had said in the office.
She said:
I got the letter in May, and I answered that. . . . I just got the one letter, and I answered it. . . . I filled out the form, yes.
The applicant said that, during the middle of the year in 1992, she had been in danger of losing her home because she had received a third notice from a bank, advising, in effect, "you cough up money in 14 days or you are out". She sought the assistance of a solicitor to help with her claim for JSA but she could not afford to pay a solicitor or obtain the services of a solicitor for no fee. Further issues arose for her in her personal life. During 1993 and 1994, she managed to find some casual work but she was not employed after 22 April 1995. She again approached the department, and was again advised that she still did not qualify for "JSA or newstart allowance". She was not given this advice in writing, but rather, she was told that she was not qualified for JSA at interview. She was again referred to a departmental social worker. The applicant told the Tribunal that, by this stage, her financial circumstances had deteriorated.
In August 1995 the applicant "came across" another delegate of the Secretary, Mr T. Lyons, complex assessment officer, whose statement dated 20 September 1995 was before the Tribunal. The complex assessment officer noted that real estate owned by the applicant was "encumbered by a debt of $479,000.00" owed to a bank and secured by mortgages over the applicant's principal place of residence and three other properties in her name. He expressed the opinion that:
. . . None of these encumbrances seem to take the form of collateral securities, nor to have been given for the benefit of a person other than the client, [sub-section 1121(2) of The Act], and may thus be deducted from the value of the encumbered assets, [sub-section 1121(2) of The Act]. . . . (existing emphasis)
The complex assessment officer concluded that there was a deficiency of $52,000.00 in the applicant's assets. He noted that the applicant's properties were let but that the cost of servicing her aggregate debt exceeded the total income from rents. One property was however providing a positive yield of $136.92 per fortnight.
Although not agreeing with all that the complex assessment officer had recorded, the applicant said that he had ". . . fixed the whole thing up in about three weeks". In the applicant's opinion there had been no change in her circumstances since 1992 which would have affected the payment to her of JSA. It was the applicant's evidence that the complex assessment officer acknowledged that there "was a huge mistake". The documents include a copy of a claim for JSA/newstart allowance lodged by the applicant with the department on 6 September 1995. The applicant was apparently granted JSA, although no record of the decision is included in the documents. In a statement made to the department on 7 September 1995, the applicant asked to
. . . have my claim lodged 3 years ago reconsidered . . . I am not aware if I received a rejection letter for my claim . . . . Due to my illness I was not prepared to follow up my claim for Jobsearch. I now believe that I should. . . . I am also not certain whether I appealled [sic] against the rejection of my Jobsearch Allowance, however nothing more came of the original claim. . . . I did not obtain work until 26/7/92.
On 7 September 1995 a delegate of the Secretary decided that the applicant should not be paid arrears of JSA, backdated to 1992, because there was no evidence to suggest that the applicant had pursued her claim for arrears after the original ARO's decision. The applicant told the Tribunal that she was told "You won't get it". In advising the applicant of the decision, by letter dated 8 September 1995, the delegate advised, so far as relevant:
. . . The basis of my decision was made in accordance with section 1243a of the Social Security Act which states that a client has 13 weeks in which to appeal against a decision. As you failed to lodge an additional appeal within the 13 week period it is therefore no longer possible to pay you any arrears payment backdated from 1992.
Section 1243A provided at the time:
1243A(1) If:
(a)the Secretary makes a determination (the "first determination") that:
(i)a social security payment is granted or is payable to a person; or
(ii)a social security payment is payable at a particular rate to the person; and
(b)the Secretary makes a determination (the "second determination"):
(i)to cancel the social security payment; or
(ii)to reduce the rate at which the social security payment is payable; and
(c)notice of the second determination is given to the person; and
(d)the person applies to the Secretary under section 1240 for review of the second determination; and
(e)the application is made more than 13 weeks after the notice is given; and
(f)a decision (the "review decision") is made by the Secretary, an authorised review officer, the Social Security Appeals Tribunal or the Administrative Appeals Tribunal Act; and
(g)the review decision, or the effect of the review decision, is:
(i)to set aside the second determination; or
(ii)to affirm a decision setting aside the second determination;
the following provisions have effect:
(h)the second determination does not become void from the time when it was made;
(i)the mere setting aside of the second determination does not of itself revive the first determination.
1243A(2) In this section, a person is taken to have applied for review of a determination (the "primary determination") if:
(a)the person applies for review of another determination or decision; and
(b)an examination of the primary determination is necessary to resolve the issues raised by the review of that other determination or decision;
Note 1:For the meaning of "given" in relation to a notice of a decision see section 1302A.
Note 2:A notice is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12)).
Note 3:This section does not apply to a determination by the Secretary to suspend a social security payment. If the Secretary's determination to suspend a social security payment is set aside on review, the recipient is placed in the position that he or she would have occupied if the determination to suspend had not been made.
Note 4:If the Secretary or an authorised review officer decides that a person's social security payment is to resume, or resume at an increase rate, certain sections (eg section 887) restrict the date from which the new determination can take effect. Section 1255 places a similar restriction on the Social Security Appeals Tribunal and section 43 of the Administrative Appeals Tribunal Act 1975 places a similar restriction on the Administrative Appeals Tribunal.
The applicant's request for reconsideration of the delegate's decision, lodged with the department on the same day as the decision was made, 7 September 1995 states, "I . . . wish to have my claim lodged 3 years ago reconsidered". A file note by an ARO dated 27 September 1995 records:
Rang . . . ARO . . . Re: This case He said that there is no record of customer lodging an appeal to the SSAT.
Only record is appeal to ARO.
Copy of Decision and letter sent not available as records would have been destroyed.
By letter dated 28 September 1995, the ARO advised the applicant, in part:
I am writing to you about your request for a review of a decision made by the Footscray office of the Department on 7/9/95 not to pay arrears of Job Search Allowance (JSA) back to 1992 or to backdate your JSA claim to September 1992.
. . .
section 551 of the Act says that a person who wants to be granted a job search allowance must make a proper claim for that allowance;
section 552 of the Act says to be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary;
section 553 of the Act says to be a proper claim, a claim must be lodged:
(a)at an office of the Department; or
(b)at a place approved for the purpose by the Secretary; or
(c)with a person approved for the purpose by the Secretary;
subsection 558(3) provides for the date of effect of a determination of Job Search Allowance and in part it states:
if:
(a)a decision (the "previous decision") is made rejecting a persons claim for job search allowance; and
(b)a notice is given to the person advising the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for a review of the previous decision; and
(d)a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
. . .the decision to reject your claim was affirmed by the Authorised Review Officer on 22/6/92 and notification of this decision would have been sent on 22/6/92;
. . .
as you did not apply for arrears within 3 months of a notified decision, you are not entitled to receive any further arrears of Job Search Allowance and there is no provision to backdate your claim;
. . .
I have therefore decided that the correct decision was made not to pay arrears from approx May 1992 and I now affirm that decision. This means your request for a review has been unsuccessful.
. . .
If you still do not think the decision is correct, you can appeal to the Social Security Appeals Tribunal (SSAT). You can use the form which is with this letter.
It may be to your advantage to appeal quickly as unless you apply to the Tribunal within 3 months of receiving this letter, arrears can only be paid from the date of application, unless the Tribunal decides that the limitation of arrears provisions do not prevent payment of arrears in your case. If you do apply to the Social Security Appeals Tribunal, you will be given a copy of the statement provided to it by the Department, which in most cases will be this letter. [existing emphasis]
When asked by Mr Todd if she remembered receiving this letter, the applicant replied:
Yes. I mean if the Tribunal is the SSAT, which I now I gather it is, that's fine. But I just – I still wasn't going to go in alone. So – and then I learned later the proper name, and what have you, and who they were, and that they were employed by the DSS.
. . .
That the SSAT were actually the DSS. They weren't an independent body.
. . . Well, the lawyer told me in 1997, that I spoke with. But, yes, I have heard the name, the Tribunal, before, and I didn't follow that up until I could get somebody to help. And then as it turned out, I went in against the SSAT alone, because I still couldn't – I couldn't leave it any longer. But I am just saying I heard the name Tribunal, but as for SSAT I hadn't heard that until later.
. . .
I wanted to get someone to help – and, yes, I can see it says that [appealing to the SSAT], and that probably washed over me, but I never registered the name. And basically I was so angry I was holding back until – you put things aside until you can get help, and then you go on with them.
And for quite understandable reasons, given your background, is it not also possible that a similar situation arose in June - - -?---No, definitely not. And also I wasn't even working then. And that – definitely not; I didn't get anything. And my mind was a lot clearer. I mean, my mind is perfectly clear anyway. And I had no qualms on that issue. I had already put the appeal in that I got in May. At that point I would have had no qualms so much about giving it another go, but as time went on, and I thought the arguments were irrational, I thought I can't do this alone.
. . .
[I]n terms of the '95, isn't it possible that '92 was a similar situation?---No, it is definitely not possible, and it didn't happen. . . .
On 29 September 1995, income which had been recorded as received by the applicant as rental from property owned by her, was deleted from departmental records.
The applicant said that it was not until 1997 that she was asked by a lawyer whether she had applied to the SSAT for review of the decision with respect to her entitlement to JSA. She said that she had not heard of the SSAT before 1997. In lodging her appeal with the SSAT in January 1998, the applicant again referred to what had occurred in 1991.
Ms Bogan placed an affidavit sworn by the applicant on 23 May 2000 before the Tribunal in which the applicant advised, amongst other things:
. . .
2.On 27 May 1992, I lodged a request for review of the decision of the Department of Social Security (DSS) made on 15 May 1992 ("the review"). I did not follow-up the outcome of the review until September 1995, for the following reasons:
I obtained casual employment between July 1992 and April 1995, and concentrated my energies on work and attending to re-paying my debts;
having paid work also removed, for the time being, the financial pressures which would have made it necessary to follow-up the review;
I was also pre-occupied with the aftermath of the failure of my business, which included having to deal with my ex-husbands debts; and
in early July 1992, I discovered, after searching for many years, that my natural mother (Eileen Eleanor Parkes) whom I had never met, had been killed by her son (Colin) from another marriage. That discovery resulted in a great deal of emotional distress and difficulties in dealings, for approximately four years, with Colin and my other half-siblings.
. . .
4.I next had contact with the DSS in April 1995 when I ceased work, at which time I applied for Jobsearch Allowance ("JSA"). That application was rejected and I re-applied, in September 1995, with the assistance of Mr Tony Lyons of the Sunshine Office of the DSS. That application was granted and I received JSA payments between September 1995 and April 1996.
5.I say, however, that I did not receive any notification of the decision of the ARO on the review which is alleged by the DSS to have been made on 22 June 1992 ("the ARO decision"). I have on several occasions sought a copy of any such letter notifying me of the ARO decision. I have been advised by officers of the DSS office, Footscray region, that no such copy has been located on the DSS files.
6.I was first told of the ARO decision by Mr Gesa Babos when I attended the DSS office in Footscray on 7 September 1995 in connection with my September 1995 application for JSA. Mr Lyons had dealt with Mr Babos about that application and he advised me to make an appointment with Mr Babos to make the September 1995 application for JSA.
. . .
9.I have, apart from the period May 1990 to September 1991, lived at 8 Stanhope Street, West Footscray since December 1987. During that time I have, on numerous occasions received, and continue to receive, mail addressed to 8 Stanlake Street, Footscray (a medical centre) and 8 Stanley Street, West Footscray. I routinely have, and continue to, re-post these letters highlighting the respective correct addresses. I have, on occasion, received mail addressed to me but initially delivered to the Stanlake Street or Stanley Street addresses.
When cross-examined by Mr Todd the applicant replied as follows:
So you did actually put in a claim form on 1 October 1991?---Of course, yes.
You also gave evidence today that you hadn't heard from them about the SSAT for 1997?---Not by that name, I mean they said authorities or you can put things in, yes.
She said that the comments she had written on the reasons for decision of the SSAT when lodging her application for review with this Tribunal referred to an application to the SSAT "in June 1992 and April 199. . ." were incorrect. She went on to say that she did not know "the actual name of the SSAT until the end of '97". She had been told that she could "appeal" in 1995.
It was Ms Bogan's contention that the documents are inconclusive as to whether the applicant was given written notice of the ARO's decision made in June 1992 and that the applicant does not recall receiving the notice. Ms Bogan referred the Tribunal to decisions concerning the giving of notices, including Re Secretary, Department of Social Security and Mosca (AAT 13155, 5 August 1998) in which the Tribunal said at paragraph 103 of its reasons for decision:
103. Applying the reasoning in O'Connell (supra) the Tribunal considers that that decision continues to identify succinctly the nature of the review in the matter before this Tribunal. The decision in respect of which Mrs Mosca has sought review is the decision of a delegate of the Secretary not to pay arrears of Family Allowance for the period she was absent from Australia. Mrs Mosca sought review of the decision not to pay arrears within 3 months of being notified of the authorised review officer's decision. Section 1255 of the 1991 Act, which is in substantially the same terms as section 183 of the 1947 Act, does not operate to prevent the payment of arrears in this matter. While O'Connell (supra) dealt with the consequences of setting aside a decision to cancel a pension, benefit or allowance, the Full Court's reasoning applies equally to setting aside a decision to suspend a pension benefit or allowance pursuant to subsection 168(1) of the 1947 Act. The effect of a decision to set aside a decision to suspend an allowance is to revive a person's entitlement to receive that pension, benefit or allowance until some other event or act terminated that entitlement. The Tribunal notes that this view is confirmed by Note 3 to section 1243A of the 1991 Act.
In Secretary, Department of Social Security v Sevel and Secretary, Department of Social Security v O'Connell (1992) 110 ALR 627 the Full Federal Court noted at page 637:
Once the cancellation decision was set aside, the respondents had the benefit of extant decisions granting their claim. They were entitled to be paid the moneys attributable to that decision without the necessity of any new s.168(3) decision. As a practical matter it might have been necessary for authorities to be issued, but these were not decisions falling within s.168(3).
Sevel and O'Connell concerned payment of arrears of family allowance in circumstances where the non-return of a document by the customers led the Secretary to assume that the customers were indicating that their income exceeded the allowable limit, precluding payment. The customers had changed address and contended that they had not received notices. Decisions had been made that, as they had not sought review of the decisions for a period exceeding three months, they were not entitled to be paid arrears of family allowance. Payment of family allowance was reinstated once relevant information was provided.
Mr Todd put to the Tribunal that it should find that notice of the decision made by the ARO in June 1992 had been given to the applicant and that the ARO had not failed to follow standard administrative practice. He noted that the applicant had agreed that she had received a notice with respect to the further decision of an ARO in September 1995.
In a written submission to the Tribunal Ms Bogan referred to Re Katsimalis and Secretary, Department of Social Security (1994) 36 ALD 759 which again raised the issue of arrears of family allowance. As with the matters referred to above, payment of family allowance had been suspended or cancelled. The Tribunal found in that matter that Mr Katsimalis had not been given notice of the decision to suspend his payments of family allowance and in seeking arrears of family allowance he was not applying for review under subsection 173(1) of the Social Security Act 1947 ("the 1947 Act"), but, if that was so, Mr Katsimalis had not been given notice to suspend payments of family allowance and the Secretary had a discretion under paragraph 168(4)(ca) of the 1947 Act which allowed for the fixing of a day earlier or later for payment than the day on which a determination took effect.
Ms Bogan submitted that the applicant should have her entitlement to JSA considered under the legislation in effect when she applied for JSA in 1991 or that the hardship provisions in effect in April 1992 apply to her.
Unlike the applications referred to above, the applicant in this matter had not changed her place of residence during the relevant period and the decision which has caused her so much heartache and hardship was a decision that JSA was not payable to her, rather than a decision suspending or cancelling payment. Thus, if a Tribunal on review were to set aside the decisions on review no decision would remain entitling the applicant to payment of JSA.
Turning first to the period 1 October 1991 to 27 July 1992, the Tribunal finds, on the balance of probabilities, that the applicant lodged a claim for JSA under Part 2.12 of the Act in effect at the date of claim, which was refused because of her assets (section 601). It appears that she asked that consideration be given to her circumstances under the hardship provisions of the assets test (section 1131). This is apparent from the letter dated 15 February 1992 sent to her. She acknowledges receiving that letter which included advice:
If you still disagree, you can talk to an Authorised Review Office who is a senior, independent, expert officer who can—
take a fresh look at the case;
change the decision if it is incorrect;
tell you how you can appeal if you still disagree; and
tell you about your rights to see your file.
You can also appeal directly to the Social Security Appeals Tribunal who will independently review your case.
. . .The computer record dated 27 May 1992 satisfies the Tribunal that the applicant asked an ARO to review the decision under the hardship provisions of the assets test; that the decision was affirmed by the ARO as recorded on the computer on 22 June 1992. Applying sections 28A and 29 of the Acts Interpretation Act 1901, the Tribunal finds that the applicant was given notice of the ARO's decision, 22 June 1992. The Tribunal is further satisfied that the applicant did not seek review of that decision by the SSAT for the reasons she has outlined until she asked for her "claim lodged 3 years ago" to be reconsidered on 7 September 1995.
The SSAT affirmed the decision of the ARO, made on 28 September 1995. This Tribunal's jurisdiction now arises under section 179 of the Social Security (Administration) Act 1999 ("the Administration Act"). Under paragraph 179(2)(a), it is the ARO's decision, as affirmed, which is before the Tribunal. In Sevel and O'Connell the Full Federal Court said, also on page 637:
. . . Ordinarily, we agree, the AAT stands in the shoes of the primary decision-maker, so that any limitation attaching to the primary decision-maker binds the AAT. But in this case, the AAT stands only indirectly in the primary decision-maker's shoes. The AAT takes the place of the SSAT: see ss 205–215 of the Act and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth).
The Court was there referring to the 1947 Act, now repealed. However similar provisions still prevail.
The difficulty for the Tribunal in this matter is paragraph 1255(4)(c) of the Act. The SSAT "affirmed" the ARO decision not to "pay arrears" of JSA to the applicant, it did not vary or set aside the decision (paragraph 1255(4)(c)) (paragraph 6 above). The decision before the Tribunal is therefore the decision of the ARO as affirmed. Subsection 1255(4) of the Act does not apply unless its provisions are satisfied in this matter. In light of the applicant's evidence and the opinion of the complex assessment officer the Tribunal is satisfied that it should vary the decision of the ARO, which was before the SSAT, by granting the applicant JSA, payable from the date she lodged her claim for JSA in 1991, being satisfied that the value of the applicant's assets in 1992 did not preclude payment of JSA to the applicant although, in granting JSA to the applicant, the rate of JSA payable should be calculated taking into account her income at the relevant time.
The Tribunal is further satisfied that, as the ARO's decision made in 1995 is to be varied, and the applicant applied to the SSAT for review more than three months after she was given notice of the ARO's decision, the day on which the decision under review has effect is the day on which the applicant applied to the SSAT for review of the decision, 14 January 1998, under subsection 1255(4) of the Act. The decision of this Tribunal will therefore be a hollow one for the applicant as no payment of JSA can be made to her under the Act for the period 1 October 1991, or whichever date in 1991 she lodged her claim, and 27 July 1992 when she was no longer qualified for JSA. The Tribunal has no other power under the Act, although the Secretary may consider whether compensation should be paid to the applicant for detriment caused by defective administration.
Turning to the second period during which the applicant contends she should be paid JSA, 5 April 1995 to 6 September 1995, the Act provides that the applicant cannot be paid JSA before she lodged a claim. It also appears that she was probably not registered with the CES. Were this Tribunal to grant her claim she would, once again, be precluded from being paid JSA under subsection 1255(4) of the Act.
It is for these reasons that the Tribunal will vary the decision under review.
I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 08.11.00
Date of Decision: 07.02.01
Counsel for the Applicant: Ms A. Bogan
Solicitor for the Applicant: Footscray Community Legal Centre
Solicitor for the Respondent: Mr M. Todd, Advocate with Centrelink
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