Perry Sidiropoulos and Secretary, Department of Social Services
[2015] AATA 421
•22 April 2015
[2015] AATA 421
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5031
Re
Perry Sidiropoulos
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 22 April 2015 Date of written reasons 15 June 2015 Place Sydney The decision under review is affirmed.
.........................[sgd]...............................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – cancellation of payment – whether failure without reasonable excuse to comply with a requirement to inform the Department of particular information – no discretion – decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) ss 68(2), 72, 80(1), 631
Social Security Act 1991 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
15 June 2015
INTRODUCTION
The Applicant, Mr Perry Sidiropoulos, seeks review by this Tribunal of a decision of the Social Security Appeals Tribunal (SSAT) affirming the cancellation of his Newstart Allowance.
Mr Sidiropoulos was first granted Newstart Allowance on 12 May 1998. On 9 March 2012, Centrelink requested Mr Sidiropoulos provide further information. On 16 April 2012 his Newstart Allowance was cancelled. On 9 February 2013, an authorised review officer (ARO) set aside the decision to cancel the Newstart Allowance. On 4 March 2013, Centrelink determined that Mr Sidiropoulos’ Newstart Allowance could only be reinstated until 6 July 2012 as he had only provided reporting statements until that time.
On 4 and 5 March 2013, Centrelink sent Mr Sidiropoulos letters seeking more information and enclosing relevant forms for him to fill in with the relevant information.
On 7 March 2013, Centrelink requested that Mr Sidiropoulos attend an interview on 18 April 2013. He did not attend, although he did forward a medical certificate.
On 19 April 2013, Newstart Allowance to Mr Sidiropoulos was suspended. On 22 July 2013, in a letter which is before this Tribunal, Newstart Allowance was cancelled by Centrelink from 7 July 2012. Unfortunately, the reason given in this letter was that Mr Sidiropoulos had failed to attend the interview on or about 18 April 2013.
However, the Respondent does not rely upon that fact when seeking to uphold Centrelink's decision of cancellation.
Before the SSAT, the Respondent had relied upon the failure of Mr Sidiropoulos to furnish information requested in the letters of 4 and 5 March 2013, when asserting the correctness of the cancellation decision.
Mr Sidiropoulos did not seek review of the decision of which he was informed in the letter of 22 July 2013 until 8 May 2014.
Mr Sidiropoulos unsuccessfully sought review by an ARO and then sought review by the SSAT, but to no avail. He has now appealed to this Tribunal.
DOCUMENTS PRESENTED AT THE HEARING
At the commencement of the hearing before this Tribunal, Mr Sidiropoulos sought to admit into evidence several documents which had not previously been provided to the Tribunal or Respondent. I adjourned the hearing and requested the Respondent examine the documents. On resumption, the Respondent asserted that the documents did not appear to be relevant. Mr Sidiropoulos made a short statement asserting that the documents were generally relevant. The documents, in the main, related to material in 2012.
For the following reasons I ruled that I would not admit the documents into evidence. First, Mr Sidiropoulos had provided these documents pursuant to the Tribunal’s direction that witness statements and documents be filed with the Tribunal and served on the Respondent by 27 February 2015. Second, in his statement at the hearing, Mr Sidiropoulos admitted that the documents must have been in his possession at the time at which this matter was heard by the SSAT. In that case, it appeared to me that the documents should have been forwarded to the Tribunal with other documents. Finally, from a perusal of the documents, I concluded that the documents had very little relevance to the matter before me.
APPLICATION TO HAVE THE HEARING CONDUCTED IN PRIVATE
Before giving sworn evidence at the hearing, Mr Sidiropoulos made an enquiry as to whether this matter could be heard privately. Mr Sidiropoulos is self-represented and he is appearing before a Tribunal whose procedures he does not know well. Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), relevantly provides:
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present;
...
(3) In considering:
(a) whether the hearing of a proceeding should be held in private;
...
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
I explained to Mr Sidiropoulos that I would not accept a request for this matter to be heard in private because of the effect of this provision, as it effectively says that matters before this Tribunal are held in public except in exceptional circumstances. In his enquiry, Mr Sidiropoulos did not point to any of those exceptional circumstances nor did he adduce any reasons supporting a claim for confidentiality. Accordingly, I ruled that the hearing remain open to the public.
THE EVIDENCE
Mr Sidiropoulos gave sworn evidence at the hearing, and he was the only person to give oral evidence. The Tribunal had before it the Respondent’s statement of facts and contentions and the documents prepared by the Respondent pursuant to section 37 of the AAT Act.
ISSUES
The issue before me is whether the decision of the SSAT to confirm the cancellation of Mr Sidiropoulos’ Newstart Allowance as from 7 July 2012 was the correct and preferable decision.
THE LEGISLATION
The relevant legislative provisions are to be found in the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Social Security Act 1991 (Cth) (the SS Act).
Subsection 68(2) of the Administration Act provides that Centrelink may seek information from recipients of social security by forms and notices. Subsection 68(2) provides:
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
(c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.
Section 72 of the Administration Act specifies further details about notices sent to social security recipients. Section 72 is very detailed, but it will suffice to set out its first two subsections. Section 72 relevantly provides:
Provisions relating to notice
(1) A notice under this Subdivision:
(a) must be given in writing; and
(b) may be given personally or by post or in any other manner approved by the Secretary; and
(c) must specify how the person is to give the information or statement to the Department; and
(d) must specify:
(i) in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period—the date by which the person is to give each statement to the Department; or
(ii) in any other case—the period within which the person is to give the information or statement to the Department; and
(e) must specify that the notice is an information notice given under the social security law.
(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).
Section 631 of the SS Act specifies circumstances where Newstart Allowance is not payable. It provides:
A Newstart Allowance is not payable to a person if the person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 67, 68 or 192 of the Administration Act.
Finally, subsection 80(1) of the Administration Act details circumstances where the Secretary must suspend or cancel social security payments. It provides:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
CONSIDERATION
From the oral and documentary evidence before me I make the following findings.
In his evidence, Mr Sidiropoulos said that he did fill in the forms that were sent to him on or about 4 or 5 March 2013. However, he went on to state that he had forwarded those forms to the Taxation Department. Mr Sidiropoulos may have told the SSAT that he had sent the forms to the Taxation Department, but in its decision the SSAT does not mention this matter.
I find that the notices sent to Mr Sidiropoulos on or about 4 or 5 March 2013 were valid notices and complied with subsection 68(2) of the Administration Act. Section 631 of the SS Act which is set out above, provides for the non-payment of Newstart Allowance where a person refuses or fails, without reasonable excuse, to comply with a requirement made under section 68 of the Administration Act.
In his evidence before me, Mr Sidiropoulos did not proffer any material which I could regard as a reasonable excuse for non-compliance.
The rules regarding Newstart Allowance are very tightly constrained. Subsection 80(1) of the Administration Act which is set out above, gives the Secretary no discretion once the Secretary is satisfied that a recipient of Newstart Allowance is not or was not qualified for the payment, or to whom the payment is not or was not payable. Once the Secretary is so satisfied, the Secretary must either suspend or cancel the Newstart Allowance.
I find that Mr Sidiropoulos failed, without reasonable excuse, to comply with the notices of 4 and 5 March 2013 which were sent to him under section 68 of the Administration Act. Once that failure occurred, then under section 631 of the SS Act, the Secretary was required to suspend or cancel the Newstart Allowance pursuant to section 80(1) of the Administration Act. I further find that the Secretary was correct to cancel Mr Sidiropoulos Newstart Allowance from 7 July 2012.
DECISION
I affirm the decision under review.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...........................[sgd].............................................
Associate
Dated 15 June 2015
Date of hearing 22 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
-
Social Security Law
Legal Concepts
-
Compliance with Requirements
-
Failure to Comply
-
Cancellation of Payment
0
0
0