Omeragic; Secretary Department of Employment and Workplace Relations
[2006] AATA 790
•4 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 790
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/330
GENERAL ADMINISTRATIVE DIVISION
)
)Re SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
SENIHA OMERAGIC
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date4 September 2006
PlaceBrisbane
Decision For reasons given orally, the Tribunal sets aside the decision under review and substitutes the decision that newstart allowance was payable to the respondent between 14 May 2005 and 21 May 2005 (inclusive), but was not payable to the respondent in the period 22 May 2005 to 25 August 2005. ..........[Sgd]..........
M J Carstairs
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – applicant overseas – decision set aside
Social Security Act 1999: s1217(5)
Social Security (Administration) Act 1999: s109(2), 109(3)Secretary, Department of Family and Community Services and Caspersz [2003] AATA 1300
Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330
Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185
Secretary, Department of Family and Community Services and Plug [2000] AATA 744
Re Peura and Secretary, Department of Family and Community Services [2003] AATA 1123WRITTEN REASONS FOR ORAL DECISION
15 September 2006 Ms M J Carstairs, Member 1. This is an application by the Secretary to the Department of Employment and Workplace Relations, for review of a decision made by the Social Security Appeals Tribunal finding that Mrs Omeragic was entitled to newstart allowance payments for a period of 13 weeks in 2005 when she was overseas visiting her sick mother.
2. The Secretary says that the Social Security Appeals Tribunal made the wrong decision for a number of reasons, including:
§ that Mrs Omeragic’s absence overseas did not come within the exemptions that allow for a payment whilst a person is overseas, these exemptions being set out in s 1217(5) of the Social Security Act 1991;
§ that, even if Mrs Omeragic had come within those exemptions, the fact that she had not applied for review within 13 weeks of having received notice of a decision meant that no arrears could be paid to her for the time that she was overseas.
3. I have come to the decision that the Secretary is correct and that the Social Security Appeals Tribunal made the wrong decision in this case.
4. In my view, the main reason why Mrs Omeragic cannot be paid in respect of that period while she was overseas was that she did not seek review of the decision refusing her, within 13 weeks of that decision being made and advised to her.
5. Mrs Omeragic was unable to attend the hearing because of her work commitments. I have taken all the evidence that Mrs Omeragic gave to the Social Security Appeals Tribunal as being truthfully given, and I do not understand the applicant to be urging otherwise. I acknowledge in making that point that each takes a different view on the severity of Mrs Omeragic’s mother’s medical condition at the relevant time.
ISSUES
6. The issues are, therefore:
(a)whether Mrs Omeragic was entitled to newstart allowance while absent from Australia;
(b)whether she sought review within thirteen (13) weeks of a decision.
BACKGROUND
7. Mrs Omeragic was receiving newstart allowance in 2005. She was notified by her sister that her mother's long-standing heart condition had worsened after a cousin's death. Mrs Omeragic decided to visit her mother. She went to Centrelink on 17 May 2005 to tell them about the proposed trip scheduled from 22nd May 2005 to 22nd of August 2005. It seems from the record of interview (T5) that she was told that her reasons were not acceptable and she could not be paid newstart allowance whilst away.
8. When Mrs Omeragic returned to Australia in August she attended her local Centrelink office, bringing a medical report and asking about the cancellation of her newstart allowance.
9. I note at this point, that the applicant acknowledged there was another decision made about the same time relating to Mrs Omeragic failing to lodge her last fortnightly payment form. The notice of that cancellation was not given to Mrs Omeragic. The applicant concedes that in view of Centrelink failing to notify her of that decision and in the context of her having attended the Centrelink office in May, there is no bar to Mrs Omeragic being paid newstart allowance for the period 14th to 21st of May 2005. The applicant accepted that that was part of the review before the Tribunal. Although not dealt with directly by the Social Security Appeals Tribunal, it was referred to by the authorised review officer and is encompassed within Mrs Omeragic’s request to have her “cancellation reviewed”. That matter, conceded as it is by the applicant, requires no further consideration.
mrs omeragic’s departure overseas
10. The additional materials before this tribunal included a translation of a medical report from Bosnian to English, a report from Dr C Mitchell and various Centrelink computer records referring to Mrs Omeragic. I also heard evidence from Mr Shannon Crane, Centrelink officer, who dealt with Mrs Omeragic when she came into the Centrelink office in May prior to her departure. He explained the document at T5 as being one run through a computerised script and Mr Crane said it is his practice to tell the person as he goes through the scripted document what decision he has made as a result of the information the person provides to him at the interview. That is, he told Mrs Omeragic that she could not be paid newstart allowance while she was overseas visiting her sick mother. He also said in evidence that Mrs Omeragic provided no overseas address and no telephone number for Centrelink to use during her absence.
11. Mr Crane followed up the interview with a letter (T6), dated 17 May 2005,which set out:
Thank you for telling us about your plans to travel outside Australia from 22 May 2005. Please read this letter carefully. It tells you what will happen to your Centrelink payments while you are overseas.
You must tell us as soon as possible if any part of your travel plans change.
The information you provided shows that you cannot receive Newstart Allowance or a Concession Card while you outside Australia.
If you return to Australia you may need to lodge a new claim for any payments that have been cancelled during your absence.
If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate. If you still do not agree, you can ask for an Authorised Review Officer (ARO) to look at it. The ARO is an experienced officer who would not have previously been involved in your case. They can change the decision if it is wrong or, if they agree with the decision they can tell you how to appeal to the Social Security Appeals Tribunal (SSAT). Both the ARO review and the SSAT appeal are free.
Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to that decision, or any backpayment can only take effect from the date that you ask.”
12. Mrs Omeragic had told the Social Security Appeals Tribunal that her mother was an in patient in a hospital in Plav in Montenegro between 20 May 2005 and 28 June 2005 and then was released to Mrs Omeragic’s care at home.
LEGISLATION
13. On the question of whether Mrs Omeragic could be paid for the period she was overseas when she sought review of the cancellation of her newstart allowance when she returned to Australia in August 2005, I refer to what I said on a similar matter where review was not sought in a timely way: Secretary Department of Family and Community Services and Caspersz [2003] AATA 1300. The Social Security (Administration) Act 1999 (the Act) refers to and defines, for different purposes, the term favourable determination.
14. Section 109 of the Act deals with setting possible dates of effect of the favourable determinations where the favourable determination comes about because a review has been conducted. The date that may be set under s109 turns on whether notice is given to the person informing the person of the original decision. Section 109(2) of the Act provides:
109(2) …If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
109(3) ...If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)the person is not given notice of the original decision; and
(c)the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
15. The Federal Court, in Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330 and Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185, interpreted sections of the Social Security Act 1991 which are essentially the same as s109. Both cases looked at whether certain letters or forms constituted sufficient notice to a social security recipient that a decision had been made. The Federal Court decisions have been applied in decisions of the Tribunal, including Re Secretary, Department of Family and Community Services and Plug [2000] AATA 744 and Re Peura and Secretary, Department of Family and Community Services [2003] AATA 1123.
16. The Federal Court decisions of Austin and Rogers establish that there is no requirement, for a notice of decision to be valid, that the reasons for decision be given. In Rogers the Court said (at page 196):
…
A requirement that a person be given notice of something does not demand that the matter be brought home to the person’s understanding or knowledge; nor is notice synonymous with knowledge…
In my view, the matter to be communicated by the “notice” referred to…is the making of a decision in relation to a… [pension] which is a reviewable decision under s 1240 of the Act. That involves two elements; the fact that a decision has been made and the content of the decision…
17. I was satisfied that the Centrelink letter to Mrs Omeragic (T6) met all the requirements of notification of a decision. The letter told Mrs Omeragic that based on the information that she provided when she came to Centrelink on 17 May 2005, she could not be paid while she was outside Australia.
18. I was satisfied that the letter was correctly addressed. Its contents confirmed what she was told personally by Mr Crane at the interview. Mr Crane told me that the letters are sent out from a central mailing facility, so we do not know exactly when the letter was sent or when Mrs Omeragic received it. There were only five days between the date of the letter and her departure date; it is quite conceivable that when the letter arrived she was no longer in Australia. I took into account that I did not have the benefit of hearing from Mrs Omeragic on this point; it was not a point that arose before the Social Security Appeals Tribunal.
19. However, I also took into account that Mrs Omeragic had been given the decision orally by Mr Crane and that she did not give Centrelink a forwarding address while she was overseas. The Centrelink letter was sent to the only address Centrelink had for her, and under the legislation, notice of the decision is deemed in those circumstances.
20. I had no doubt that Mrs Omeragic was mindful that she might persuade Centrelink to take a different perspective if she produced some evidence about her mother’s condition. The report she obtained was dated 26 June 2005, so she attended to gathering this evidence while she was away. This further confirmed to me that Mrs Omeragic was fully aware that a decision had been made that was adverse to her.
21. The 13 weeks available for review after a notice is given of a decision (allowing time for delivery of the decision by mail) expired on 22nd August 2005. Mrs Omeragic sought review of the Centrelink decision on 25th of August 2005, outside the period allowed under the legislation to seek review if she were to obtain a favourable outcome on the question of arrears. I was satisfied that because she was out of time in seeking review, she could not be paid for the time she was overseas. Thus I concluded that the Social Security Appeals Tribunal incorrectly decided that she could be paid arrears.
22. It remains to say something of the basis on which the Social Security Appeals Tribunal decided that Mrs Omeragic was entitled to newstart allowance while overseas. I had the advantage of better evidence than was available to that Tribunal, including a better translation of a medical certificate provided to Mrs Omeragic by her mother's treating doctor in Montenegro. I also had the benefit of a medical report prepared by Dr C. Mitchell, Medical Adviser to Health Services Australia (exhibit A3), offering some comment on the nature of Mrs Omeragic’s mother's condition.
23. Dr Mitchell viewed the translation of the medical report (exhibit A1). Its contents did not enable Dr Mitchell to come to any concluded view about whether Mrs Omeragic’s mother had a serious medical illness or not. As he said the condition was likely to be hypertension and ischaemic heart disease with arrhythmia, and persons with such conditions could suffer any thing from no impairment to near total incapacity.
24. However Dr Mitchell’s report is to be understood in the context of the translation of the medical report from Montenegro. I accept the applicant's submission about that report that the text of the translation (exhibit A1) indicates that Mrs Omeragic’s mother was treated at a clinic and at home from 20 May 2005 to 28 June 2005. It does not seem likely that she was in hospital, although it seems that she was attending a clinic. It does not seem to me that this evidence satisfies the section 1212A definition of acute family crisis, on the basis of the family member being critically ill, or being hospitalised with a serious illness.
25. Neither of the translations of the document now in evidence before me (T11 and exhibit A1) lent support to Mrs Omeragic’s evidence that her mother was in hospital. I do not prefer Mrs Omeragic’s translation of the document as given to the Social Security Appeals Tribunal over the translations completed by qualified translators.
26. Even had I agreed that Mrs Omeragic was attending to an acute family crisis while she was overseas and on this basis was entitled to be paid, I am satisfied that she did not appeal the decision within the three months allowed for her to do so, and as such she cannot be paid for that period while she was overseas.
DECISION
27. The Tribunal sets aside the decision under review and substitutes the decision that newstart allowance was payable to the respondent between 14 May 2005 and 21 May 2005 (inclusive), but was not payable to the respondent in the period 22 May 2005 to 25 August 2005.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 4 September 2006
Date of Decision 4September 2006
Written Reasons for Decision 15 September 2006
Applicant Mr M Black, Departmental Advocate
Mrs Omeragic represented herself
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