Narendra Kaley and Secretary, Department of Social Services
[2014] AATA 723
•3 October 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/2401
General Administrative Division )
Re: Narendra Kaley
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Mark Hyman, Member
DATE: 10 October 2014
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1. at paragraph 20, replace ‘s 608 of the 1991 Act’ with ‘s 1068 of the 1991 Act'.
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Mark Hyman, Member
[2014] AATA 723
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2401
Re
Narendra Kaley
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Mark Hyman, Member
Date 3 October 2014 Place Canberra Newstart allowance was not payable to Mr Kaley because he did not supply all the information needed to determine his claim. Even if he had supplied all the information Centrelink had sought from him, newstart allowance would not have been payable because of his wife’s income. The decision under review is affirmed.
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Mark Hyman, MemberCatchwords
SOCIAL SECURITY – pensions and benefits – newstart allowance – whether qualified – whether payable – documentation not supplied – appointment not booked – effect of partner’s income – newstart allowance not payable – decision under review affirmed
Legislation
Administrative Tribunal Act 1975, s 37
Social Security Act 1991, ss 4, 593, 608, 615, 643, 1068
Social Security (Administration) Act 1999, ss 6A, 11, 16, 36, 37, 63, 64, 66A, 67
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Mark Hyman, Member
3 October 2014
Mr Narendra Kaley, the applicant, became unemployed in April 2012. In September 2013 he applied online for newstart allowance (NSA). Centrelink asked Mr Kaley to provide various supporting documentation and to attend an interview, but he did not comply. As a result his application was rejected. Mr Kaley sought review, by a Centrelink Authorised Review Officer and subsequently by the Social Security Appeals Tribunal. In each of those reviews he was unsuccessful. He has now sought review of the Social Security Appeals Tribunal’s decision in this Tribunal.
Issues
The only issue before me is whether Mr Kaley should be granted NSA. It is convenient to present this as two questions:
(a)Whether Mr Kaley was qualified for NSA in September 2013; and
(b)If so, whether NSA was payable to Mr Kaley.
The hearing
A hearing was held on 4 September 2014. Mr Kaley appeared in person, and the respondent was represented by Ms Charlene Gerrard, a Centrelink advocate, assisted by Ms Alice Linacre.
The documentary evidence comprised the documents submitted under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and supplementary T-documents); screenshots of Centrelink’s online application process and explanatory material, submitted as an attachment to the respondent’s Statement of Issues, Facts and contentions, and taken into evidence as Exhibit R1; and a bundle of material, variously certificates, completed forms, tax assessment notices and the like, submitted by Mr Kaley in support of his case and taken into evidence as Exhibit A1. Mr Kaley gave oral evidence at the hearing.
The legislative context.
The relevant legislation is the Social Security Act 1991 (the 1991 Act), which provides for NSA to be paid to people who are unemployed and meet various activity or other tests; and the Social Security (Administration) Act 1999 (the Administration Act), which establishes a number of administrative requirements that a claimant must meet in order to receive the allowance.
The Administration Act sets up procedures for claiming social security benefits and for the determination of applications. Section 11 requires that a person who wishes to receive a benefit must make a claim for the benefit. Section 16 provides that a person must make a claim either in written form or in an approved form (which includes by online application – see s 6A). Section 36 requires the Secretary to determine claims, either granting or rejecting them. Subsection 37(1) is the general provision governing the granting of a claim, but for NSA there is a special provision in subsection 37(2):
The Secretary must determine that a claim for a newstart allowance is to be granted if the Secretary is satisfied that:
(a) the claimant is qualified, or is expected to be qualified, for the allowance; and
(b) the allowance would be payable apart from:
(i) the application of a waiting period; or
(ii) the application of a compliance penalty period; or
(v) the application of an income maintenance period where the rate of newstart allowance payable to the person is nil; or
(vi) the operation of section 615 of the 1991 Act.
The 1991 Act sets out detailed provisions governing whether a claimant qualifies for NSA. The central element to these provisions is that a person is unemployed, but a number of other factors can influence whether a person qualifies. The references that follow are to the Act as it stood at the time of Mr Kaley’s claim in September 2013.
The basic provision that determines whether a person qualifies for NSA is s 593 of the 1991 Act. A person qualifies for NSA for a period if they satisfy the Secretary that they are unemployed throughout the period (subsection 593(1)) and if they meet various other tests, in particular tests to demonstrate that they are actively seeking employment, undertaking appropriate training or meet various qualifications to be exempt from those requirements.
The Administration Act also provides for the Secretary to require various actions of a claimant for a social security benefit. Subsection 63(2) allows the Secretary to require a person who is making a claim for a benefit to attend an office of the Department, contact the Department, attend a place for a particular purpose or give information to the Department. Section 64(1) sets out the consequences of not complying with such a requirement:
If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment--the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
The 1991 Act also includes provisions on the payability of NSA. Section 615 of that Act is presently relevant; it provides that NSA is not payable to a person who has claimed NSA, is required by the Department to attend an interview, and does not comply with that requirement.
Section 643 of the 1991 Act specifies that the rate of NSA is calculated using the rate calculator set out in s 1068. Section 1068 provides a detailed methodology for the calculation of the benefit, depending on the particular circumstances of the person receiving the benefit. Section 608(1) states that if the calculated rate of NSA is nil NSA is not payable.
The evidence
The facts are not in dispute. Many of them relate to the online claim process and the actions that were required of Mr Kaley in that process. Evidence was provided in the form of screenshots of various online screens during that process. These raise obvious questions regarding what constitutes evidence on which the Tribunal can rely, and the weight the Tribunal can place on the screenshots. The respondent, when that issue was raised, provided supporting affidavits from Centrelink information technology specialists regarding the accuracy of the representations of the screens a claimant would face in making an online application. I accept the screenshots as reliable evidence of the online claim process and of Mr Kaley’s participation in it, noting that Mr Kaley has raised no objection to the use of the screenshots nor indeed contested any of the facts the respondent has argued can be taken from them.
Mr Kaley made an unsuccessful claim for NSA in April 2013 (T5-T11). He began a new claim online on 6 September 2013 (ST1, ST2). The online claim process identified several actions that Mr Kaley was required to take: to provide proof of birth for his child; to provide details of the real estate held by Mr Kaley and his wife; to provide details of his business; to provide proof of identity to 40 points; and to book a ‘JCN meeting’ (ST1). Screenshots of the online claim process clearly show that a claimant is advised that ‘You must book an appointment as soon as possible to discuss your Participation and claim requirements’ (ST6), that the appointment would be a telephone appointment (ST6) and that failure to book an appointment within 14 days of the claim may lead to rejection of the claim (ST6, ST7). Mr Kaley completed the online form. He included the information that his wife’s fortnightly income was $3010, but noted that this was not her usual wage (ST2).
A follow-up SMS to Mr Kaley was sent on 12 September 2013 (T13, ST3), asking him to provide the requested documentation to Centrelink if he had not already done so.
A letter was sent by Centrelink to Mr Kaley on 20 September 2013, noting that his application had been rejected because he had not booked a ‘Participation and Claim Finalisation appointment’ (ST4). Other documentation suggests that the claim was rejected under s 593 of the 1991 Act (T20, p99).
In oral evidence Mr Kaley said that his wife had been receiving higher duties allowance, and that this had put her fortnightly income on a higher level than normal. He said her normal fortnightly income might be about $2700 or $2400, and that this would resume from October (whether 2013 or 2014 was not clear, but nothing turns on this).
The applicant’s argument
Mr Kaley argued that his application had been rejected without adequate explanation and without the proper application of the legislation. He had supplied all the information needed either in his claim in September 2013 or in connection with his April 2013 claim. Centrelink had all it needed to determine his claim.
Mr Kaley pointed out that once a claim was made the Secretary must either reject it or grant it. By the operation of s 37(2) of the Administration Act, the Secretary must grant a claim for NSA if the claimant is qualified and the benefit is payable apart from four circumstances. Of those four circumstances, the first three were not relevant to him. The fourth circumstance is the operation of s 615 of the 1991 Act, which he submitted did not apply. Thus the effect of s 37(2) in Mr Kaley’s contention is to oblige the Secretary to grant the benefit if he is qualified. Yet the Social Security Appeals Tribunal affirmed the Authorise Review Officer’s decision by applying s 615 of the 1991 Act.
Mr Kaley submitted that the logic of the legislation is that qualification is determined first; the benefit is then granted, and the rate calculation is then made. Only if the rate is found to be nil is the benefit not payable. In his case there had been a departure from that logic and his claim had been rejected before any of the necessary determinations had even been made.
Mr Kaley also contended that the rate calculator had been misapplied. In his submission the calculator should not take into account his wife’s income. Married claimants are exempted from having their partner’s income factored into their rate calculation under s 608 of the 1991 Act. Mr Kaley did not understand why he was being treated as a member of a de facto relationship when he was married and had provided documentary evidence to prove it. Section 1068 provided for an indexed amount of $272 fortnightly.
The respondent’s argument
The respondent began by noting that Mr Kaley’s explanation of what qualifies a person for NSA was deficient, as there is more to qualification than merely being unemployed. The respondent chose, however, not to press that point, and instead pressed an argument focused on payability.
The respondent argued that subsections 63 (1) and (2) and 64(1) applied to Mr Kaley. The online claim process had advised Mr Kaley that he must make an appointment with the Department. He was notified in the course of the claim process that he had 14 days in which to respond, and that if he did not do so his claim might be rejected. He was also advised that he must submit certain documents. As he had neither made the appointment nor submitted the documents within the specified time, s 64(1) applied to make the benefit not payable. The Secretary’s requirements were reasonable and it was reasonable for them to apply to Mr Kaley.
The respondent also noted that based on Mr Kaley’s application, his rate of NSA, taking into account his wife’s income, would be calculated as nil. Under subsection 608(1) of the 1991 Act, a benefit rate of nil meant the benefit was not payable.
Under either argument NSA was not payable to Mr Kaley and therefore the rejection of his claim was correct.
consideration
Mr Kaley has made an entirely laudable attempt to understand and analyse the legislation that applies to his claim, and some of his analysis is correct. Nevertheless parts of his analysis are not correct and have led him to misconceptions about the operation of the legislation, and to incorrect conclusions about its application to his claim. In particular, Mr Kaley has misunderstood the concepts of qualification for and payability of NSA, and the way the benefit should be calculated.
Section 37(2) requires the Secretary to grant NSA if the person qualifies for the benefit and the benefit is payable, apart from the specified circumstances. That places the questions of qualification and payability at the centre of decisions about granting NSA. A person must meet both tests: a person will not be granted NSA if either the person fails to qualify or the benefit is not payable.
Mr Kaley’s arguments, and in particular his argument that over a period he has supplied all the information that the Secretary needs to determine his claim, might be understood to contend that the information requirement for the Secretary is fixed and cumulative. In Shi v Migration Agents Registration Authority [2008] HCA 31 (‘Shi’) the High Court noted that this Tribunal should in general take into account all the developments leading up to its consideration of a matter, rather than determining the matter as it stood at the time of the decision under review. Applying that line of thought here, it might be argued that Mr Kaley, if he supplied all the relevant information over a period of time – say between April 2013 and the present – might be held to have met the requirements for qualification and payability. That argument cannot be sustained. The High Court in Shi distinguished those matters where decisions apply at particular times or over particular periods. Kirby J, in particular, singled out social security law as an example of where entitlements, decided as they are fortnight by fortnight, must be decided by the Tribunal on the facts as they were at the time of claim (at [44]):
… it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a "review" of an administrative "decision" to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.
Sections 66A and 67 of the Administration Act, which require claimants and recipients to report within 14 days changes in circumstances affecting a payment, illustrate the temporal application of social security law.
Was Mr Kaley qualified for NSA?
Mr Kaley argued that he was qualified for NSA because when he applied for the benefit he was unemployed, and had been unemployed for two and a half years. Section 593 of the 1991 Act, however, makes it clear that qualification is not such a simple concept. The Secretary must certainly be satisfied that the claimant for NSA is unemployed, but must also be satisfied of a range of other matters – for example that the claimant meets or is exempt from the activity test (s 593(1)(b) or is operating under or willing to operate under an Employment Pathway Plan (subsection 593(1)(c) and (d)). Thus to establish qualification a good deal of information must be gathered about a claimant in order that the Secretary can be satisfied that the requirements of s 593 have been met.
On review, it is this Tribunal that must attain the requisite state of satisfaction that the conditions of qualification have been met. On the evidence available to me I cannot be satisfied that the requirements of the section have been met, but for reasons that will become clear I do not need to determine whether Mr Kaley is qualified for NSA.
The respondent did not press the question of qualification, but s 593 is nevertheless central to the decision under review because the information needed to determine qualification must be gathered from a claimant, and that is one of the main reasons why the requirement to attend an interview and submit documentation is reasonable. I return to this point below.
Was the benefit payable?
Both the 1991 Act and the Administration Act contain provisions that lead to a benefit not being payable even if the claimant is qualified. The identification of which provisions are relevant to Mr Kaley’s case is the first step in determining payability.
Two provisions in particular deal with situations where a claimant has failed to respond to notifications made by the Secretary seeking further information. Section 615 of the 1991 Act is a provision specific to NSA. If a person is required to attend an interview and does not do so, NSA is not payable. Sections 63 and 64 of the Administration Act, on the other hand, deal with benefits generally. Section 63(1) applies the following subsection to people who have contacted the Department for various benefits, including NSA. Subsection 63(2) then provides that a notification may be made to a claimant asking for further information, or to attend a particular place for a particular purpose, or to contact or attend the Department. Notification may be by any means the Secretary thinks appropriate (subsection 63(5)). Section 64 sets out the consequences of non-compliance with s 63, although subsection 63(7) states that the non-compliance measures specified in subsection 64(1) do not apply unless the claimant has been advised of the consequences of non-compliance.
The effect of subsection 37(2) of the Administration Act is to displace the specific provision in s 615 of the 1991 Act. The general provisions in ss 63 and 64 of the Administration Act remain in place, however, and continue to apply. Those general provisions also import into the test of payability the reasonableness requirements set out in subsection 64(1) (those reasonableness requirements are absent from s 615 of the 1991 Act).
Mr Kaley’s analysis of the legislation is correct on the exclusion of s 615 of the 1991 Act from the determination of payability, but he is mistaken in some other aspects of his analysis. He contended that once the question of qualification had been decided in his favour his benefit would be granted and calculated. Only if the rate was nil would it not be payable. That is not how s 37(2) of the Administration Act operates. Both qualification and payability must be decided in a particular case before the benefit can be granted. Furthermore, there are other obstacles to payability, apart from s 615 of the 1991 Act. In Mr Kaley’s case sections 63 and 64, in particular, may influence whether NSA is payable.
In his response to the Secretary’s statement of facts, issues and contentions, Mr Kaley argues that the applicability of all subsections of s 63 needs to be tested against his circumstances before subsection 64(1) can be applied. That is not completely accurate, but Mr Kaley has a point, in that several of the subsections have potential application. Subsections (1) and (2) apply as a pair: the effect of subsection (1) is to decide to whom subsection (2) is to apply. Subsections (3) and (4) work in a similar way, and allow the Secretary to require that a claimant answer a questionnaire or undergo a medical examination. Neither of those requirements was imposed on Mr Kaley, and the two subsections have no application in his case. Subsection (5) sets out how the Secretary may make a notification, in sufficiently broad terms that online notification falls within the subsection. Subsection (6) clarifies the operation of an earlier provision in the section in a way that is not relevant for present purposes. Subsection (7) precludes the operation of the non-compliance provisions in s 64 unless a warning of those provisions has accompanied the notification made under s 63. In what follows the operation of the relevant subsections in ss 63 and 64 is examined step by step.
Does subsection 63(2) apply to Mr Kaley?
Mr Kaley was a claimant for NSA, and by subsection 63(1), subsection 63(2) applies to him.
Did the Secretary issue a notification under s 63(2)?
The screenshots from the online application process show that the process required Mr Kaley to book an appointment and to provide various documents. The requirement to book an appointment is a requirement to contact the Department under s 63(2)(b) and the requirement for documents to be completed and provided is a requirement to provide information under s 63(2)(d). Mr Kaley has not contested that these requirements were made of him. I am satisfied that the Secretary notified the requirements to Mr Kaley under s 63(2) and I so find. The operation of the online process as a means of gathering information clearly has the approval of the Secretary, is covered by s 6A of the Administration Act and meets the requirements of subsection 63(5).
Did the notifications include advice that failure to comply could lead to NSA not being payable through the operation of subsection 64(1)?
The notifications to Mr Kaley included warnings that failure to comply could lead to rejection of his application. I find that the warning required by subsection 63(7) was provided and so the non-compliance provisions in subsection 64(1) were not precluded from applying.
Were the requirements reasonable?
Whether a claimant is qualified and if so the rate at which NSA should be paid are both complex decisions and a good deal of information is required. The qualification decision under s 593 of the 1991 Act, for example, requires not only that the Secretary have evidence that the person was unemployed over the relevant period, but also material to enable determination of the person’s participation requirements – whether, for example, the person meets the activity test under s 593(1)(b), or does not need to meet that test. Other questions might go to issues such as the existence of or willingness to enter into an Employment Pathway Plan (subsection 593(1)(c) and (d)). Similarly, calculation of a person’s rate of payment under the calculator at s 1068 of the 1991 Act requires information about whether the person was partnered, how much the claimant’s partner earns, whether the claimant or the partner receives other social security benefits and so on. Given those requirements it is reasonable for the online processing form to seek considerable information from a claimant, and for any gaps in the information to be identified and made the subject of further inquiry.
It is arguable that if the Secretary already held the information, and the information was unchanging with time, then the requirement to provide it again was not reasonable. Thus is might be argued that the request to provide a birth certificate for Mr Kaley’s child (ST1), which he says he had provided in April 2013, could be regarded as unreasonable. Further, it is not clear to me that the full picture of what information Centrelink had collected, and therefore what remained to be asked, was before me in the assembly of screenshots and printouts – one of the particular challenges of deriving evidence from online processes. Nevertheless, it is apparent that some of the requests related to the specifics of the application and could not be other than reasonable: in particular, the request for a certain number of points of identification (ST1) seems essential to establish that Mr Kaley was who he said he was, and that he was the same person who had applied previously (if information provided earlier was to be relied on). Identification also seems essential in a more general context, to prevent fraud.
Similarly, the requests to provide details of Mr Kaley’s real estate and business interests were necessary because those interests, or their value, might have changed in the four months since his earlier application, and they would be needed to make the calculation under s 1068 of the 1991 Act.
Mr Kaley provided an estimate of his wife’s income, as noted above, but also annotated his entry on that point with the information that the usual figure was lower (ST2). An appointment, while it would no doubt have gathered a good deal of needed material, seems necessary at least to clarify what Mr Kaley’s wife usually was paid, and when she would return to that rate of payment. That information would have been necessary in calculating the rate of payment of Mr Kaley’s benefit, were he to qualify (Mr Kaley contests that point, but he is mistaken, as explained below).
I therefore find that the requests for further information and booking of an appointment were reasonable.
Did Mr Kaley fail to comply with the requirements?
It is not at issue that Mr Kaley did not respond to the requests. He neither made an appointment nor submitted the requested documents. I find that Mr Kaley failed to comply with the Secretary’s requirements made in the notification under s 63(2).
Did Mr Kaley have a reasonable excuse for not complying?
Mr Kaley’s excuse, given in his response to the Secretary’s statement of facts, issues and contentions and repeated in oral argument at the hearing, was that all the information the Secretary needed had already been provided.
For reasons already given above, the Secretary needed to apply the 1991 Act and the Administration Act to Mr Kaley’s claim made in September 2013. The information used in the process of deciding the claim had to be that relevant to the period in question. Information about an earlier period could not substitute for it, for the reasons explained above. In that context, I find that Mr Kaley’s excuse was not reasonable.
Is it reasonable for subsection 64(1) to apply to Mr Kaley?
Subsection 64(1)(f) requires a more general assessment of whether the requirements of the subsection should be applied to Mr Kaley. The intent, clearly enough, is that the Secretary should not reach a decision that a benefit is not payable except where it is reasonable to do so, looking at the person’s circumstances as a whole.
In this particular matter, Mr Kaley has made a claim and then refused to comply with quite reasonable requests for further information. He has offered an excuse for that refusal that is unreasonable and without foundation. There are no other circumstances that suggest the matter should be looked at in some other light. In all the circumstances, it is reasonable for subsection 64(1) to apply to him.
I therefore find that NSA is not payable to Mr Kaley.
If NSA were payable, at what rate would it be paid?
Having found that NSA is not payable to Mr Kaley, I do not need to determine a rate for him. But Mr Kaley may make another application, and this time he may submit all the information required. It may be useful, therefore, if I comment on his argument that a married person’s partner’s income is excluded from the calculation of the rate of NSA.
Mr Kaley’s argument is misconceived. He has understood wrongly the effect of subsection 1068(2) of the 1991 Act. That subsection provides that a person in a de facto relationship is treated as being partnered for the purposes of the calculation of the rate of benefit. Section 4 of the same Act then defines concepts and terms used in referring to couples, for the purposes of the Act. A ‘member of a couple’ includes people who are married and not living separately and apart from each other (subsection 4(2)(a)); under subsection 4(11)(a), a person is partnered if the person is a member of a couple. Therefore Mr Kaley, who is married, is both partnered and a member of a couple for the purposes of the Act.
Applying the rate calculator, and in particular the methodologies set out at points 1068-A1 and 1068-G1, requires that Mr Kaley’s wife’s income be taken into account. Applying the calculator (especially points 1068-G9, G10 and G11) rapidly leads to the conclusion that Mr Kaley’s entitlement, if he were to establish that he is qualified, would be nil, whether his wife’s fortnightly income is $3100, or $2700 or $2400. Under s 608(1), NSA is not payable if the rate is nil.
conclusion
Mr Kaley has made a welcome attempt to understand the legislation, but has misunderstood some provisions of central importance to his particular situation. NSA was not payable because he did not supply all the information needed to determine his claim. Even if he had supplied all the information Centrelink had sought from him, NSA would not have been payable because of his wife’s income.
The decision under review is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of ..............................[sgd]..........................................
Associate
Dated 3 October 2014
Date of hearing 4 September 2014 Applicant In person Advocate for the Respondent Charlene Gerrard Solicitors for the Respondent Department of Human Services, Programme Litigation and Review Branch
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