Prabhu Dayal and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 787
•13 November 2012
[2012] AATA 787
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3058
Re
Prabhu Dayal
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 13 November 2012 Place Melbourne The Tribunal affirms the decision under review.
...........................[sgd].............................................
Regina Perton, Member
SOCIAL SECURITY – Austudy – fresh claim following cancellation for reasons unrelated to study – maximum amount of time allowed for certain postgraduate studies – claim refused – service of notice advising outcome – failure to apply to Social Security Appeals Tribunal within 13 weeks of notification – no practical outcome possible as date of effect of decision after applicant no longer studying
Social Security Act 1991 section 569H
Social Security (Administration) Act 1999 sections 152(4), 154, 237
REASONS FOR DECISION
Regina Perton, Member
13 November 2012
Prabhu Dayal lodged a claim for Austudy payments on 28 June 2011 which Centrelink refused. Centrelink administers Austudy for the respondent.
Mr Dayal lodged an application for review with this Tribunal on 18 July 2012. Mr Dayal believes he was entitled to Austudy for a period between 30 May 2011 and 20 December 2011 and that the payment should have been ongoing after that until he completed a postgraduate course. The respondent disagrees and submits that there are now additional legal issues that the Tribunal needs to consider in determining the matter which are a result of the length of time that elapsed before Mr Dayal applied to the Social Security Appeals Tribunal (SSAT) following unsuccessful internal review of the decision.
HISTORY
Mr Dayal qualified for Austudy payments when he enrolled in full-time postgraduate engineering studies at RMIT University commencing in August 2009. Subject to continuing enrolment, a finalisation date for the course by 20 June 2011 was recorded in Centrelink’s records.
In May 2011 a dispute arose concerning a possible overpayment of earlier benefits. On 24 June 2011 Centrelink cancelled Mr Dayal’s Austudy payments after he failed to respond to a request for information sent to him by mail. Mr Dayal indicated that he did not receive the letter. The dispute concerning possible overpayments and cancellation of his benefit is not before this Tribunal.
On 28 June 2011 Mr Dayal lodged a fresh claim for Austudy payments. He indicated the course he was undertaking would continue for several more months. On 26 September 2011 Centrelink rejected that claim on the basis that Mr Dayal had not completed his course within the specified period allowed for that study. Mr Dayal was eventually granted Newstart Allowance (NSA) some months later.
On 27 September 2011 Mr Dayal sought review of the refusal of his claim for Austudy. On 30 September 2011 the delegate who made the original decision advised Mr Dayal that it would not be changed. In the notification, the delegate stated, among other things:
… I made this decision because your proof of enrolment indicates that you are currently enrolled in a Graduate Certificate in Engineering Management at RMIT University. The University website indicates that this is a 6 month full-time course. Therefore be allowable time for your current course is 6 months. Your current course is defined as a TGA level course. To assess your allowable time, any previous study you have undertaken at the same tertiary level in the past 10 years is deducted from the allowable time your current course.
Our records indicate that you have been paid since August 2009 for studying at the TGA level. Our records indicated that in 2009 you indicated that you were enrolled in the Master of Engineering Management at RMIT. This masters course was not approved for Centrelink purposes, however as it had a clearly defined exit point at the Graduate Diploma level (which is TGA level study) you were paid for study for this component of your course. As the Graduate Diploma component of the masters course is of 1 year duration you have therefore no allowable time left for studying the Graduate Certificate level...
On 17 November 2011 an authorised review officer (ARO) of Centrelink affirmed the decision that the claim for Austudy lodged on 28 June 2011 should be refused. The ARO notified Mr Dayal of the decision by mail to his last known given postal address, namely a post office box in Thomastown. In his notification, the ARO stated:
…
I attempted, without success, to contact you on …[mobile number] on 16 November 2011 and 17 November 2011. I have decided that the decision was correct. This means your appeal was unsuccessful.
…
If you do not agree with this decision you may ask for an independent review by the Social Security Appeals Tribunal. I have enclosed a pamphlet containing information on how to request a review.
If you do not request a review within 13 weeks of receiving this letter and the decision is changed, you might not receive your full entitlement.
…
On 5 December 2011 Mr Dayal attended a Centrelink office bringing with him a document from RMIT concerning his studies. Centrelink’s subsequent electronic record concerning the visit stated the following:
…Scanned letter from RMIT in support of Appeal. Adv cust ARO decision has been made and a letter issued on the 24/11/11 explaining decision …
In early January 2012 Mr Dayal applied for NSA and a low income health care card. On 17 January 2012 Mr Dayal again asked for an ARO review of the refusal of Austudy despite having been advised in early December 2012 that the ARO review had been completed and was negative.
On 24 January 2012 Mr Dayal made contact with Centrelink by email and asked, among other things, what was happening with the restoration of his Austudy payments for the period from 30 May 2011 to 20 December 2011:
…Please also update me on my Austudy payments from 30 May 2011 to 20 Dec 2011 about restoring Austudy payments because it has not been paid for so long and I have decided to stay on Newstart payments… Please inform for further appeal about my Austudy payments if it has not been reviewd [sic] by ARO then I can appeal to social security tribunal. Please call me for any confirmation on mobile….
On 25 January 2012 Mr Dayal sent another email to Centrelink asking about his Austudy payments stating that he was waiting for the ARO decision. Another email on that topic was sent on 31 January 2012. In the meantime, Mr Dayal was also disputing the date of commencement of NSA payments and seeking review about that aspect. Another email concerning the Austudy refusal was sent to Centrelink on 6 February 2012.
Centrelink’s records indicate that on 7 February 2012 Mr Dayal had again asked about the Austudy refusal. The note indicates that the ARO decision had already been sent to Mr Dayal twice. Another unsuccessful attempt was made to telephone Mr Dayal on his given telephone number.
On 9 February 2012 Mr Dayal again emailed Centrelink about the Austudy decision. In an email to Centrelink dated 16 February 2012 Mr Dayal stated:
Please find enclosed this information about my Austudy payments kept under Centrelink review officer for approval to make it clear my enrolment status is or was full time with full course load and was within allowable time reach. I have fully provided the enrolment status until 20 Dec 2011, the day I decided to sieze [sic] the studies becuase [sic] Centrelink have asked me to stop Austudy and look for a job. My results will be delayed until I reenrol for the next level of the course. I have been advising Centrelink to let me continue studying the Austudy in next level of the course. It is a three level course as described in my previous documents to broadmeadows office. My Austudy payments should be paid from the date Centrelink stopped payments on 30 May 2011 to the date I siezed [sic] the studies on 20 Dec 2011. RMIT university will never allow any student longer than the allowable time to complete the course within university regulations until students gets excluded from the course for any result failure…
Later in February 2012 and in early March 2012 Mr Dayal made contact with Centrelink regarding his NSA. On 15 March 2012 Mr Dayal again emailed Centrelink about his Austudy asking for its restoration for the period from 30 May 2011 to 20 December 2011. There were a number of contacts concerning other Centrelink matters.
On 4 June 2012 Mr Dayal again emailed Centrelink about Austudy matters. This time subsequent telephone contact with him was successful. A Centrelink file note on that day states:
Cus contacted in regard to aro appeal. Cus still believes decision in regard to allowable time is incorrect, cus advised his study was at higher level and has provided documents for this. As cus has sent numerous emails in regard to appeal, i have contacted ARO, who advised that cus will need to contact SSAT on 1800011140 if he is wishing for further follow up of appeal.
On 4 June 2012 Mr Dayal lodged an application for review with the SSAT. Mr Dayal submitted documents to the SSAT but indicated that he did not wish to attend a hearing. The SSAT therefore reviewed the application on the papers. On 9 July 2012 the SSAT affirmed the decision under review. The SSAT determined that the timing of Mr Dayal’s application for review resulted in an inability for it to make a practical decision in favour of Mr Dayal. That is because he applied to the SSAT more than 13 weeks after the ARO decision. The SSAT did not canvass the issues surrounding the refusal of the Austudy claim made on 28 June 2011.
RELEVANT LEGISLATION
Subsections 569 (H)(1) and 569(H)(3) of the Social Security Act 1991 (the Act) state:
Progress rules--tertiary students
Full-time students
(1) A person who is a full-time student in respect of a tertiary course satisfies the progress rules if:
(a) in the case of a person who is enrolled in the course--on the day on which the person enrolled in the course; or
(b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course--on the day on which enrolments in the course are next accepted;
the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.
(3 )The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is:
(a) if the minimum amount of time needed to complete the course as a full-time student is one year or less--that minimum amount of time; or
(b) if the minimum amount of time needed to complete the course as a full-time student is more than 1 year and:
(i) the student is enrolled, or intends to enrol, in a year-long subject; or
(ii) the student's further progress in the course depends on passing a whole year's work in the course;
the minimum amount of time plus 1 year; or
(c) in any other case--the minimum amount of time needed to complete the course as a full-time student plus half an academic year.
Section 237 of the Social Security (Administration) Act 1999 (the Administration Act) sets out the various ways notices of Centrelink’s decisions may be given to a person:
Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
Section 152(4) of the Administration Act spells out what happens if a person applies to the SSAT more than 13 weeks after notification of an ARO decision:
(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b) the person applies to the SSAT more than 13 weeks 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 decision of the SSAT is:
(i) to grant the person's claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person's social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
Section 154 of the Administration Act indicates the ways in which a person can apply to the SSAT:
Application requirements
(1) A person may apply to the SSAT for review of a decision by:
(a) sending or delivering a written application to:
(i) an office of the SSAT; or
(ii) an office of the Department; or
(iii) if the decision was made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997 )--an office of the Human Services Department; or
(b) going to an office of the SSAT and making an oral application; or
(c) contacting an office of the SSAT by telephone and making an oral application.
(2) If a person makes an oral application in accordance with paragraph (1)(b) or (c), the person receiving the oral application must make a written record of the details of the oral application and note on the record the day on which the application is made.
(3) If a written record of an oral application is made in accordance with subsection (2), Division 4 has effect as if the written record were a written application.
(4) An application may include a statement of the reasons for seeking a review of the decision.
ARE AUSTUDY PAYMENTS AVAILABLE FOR THE RELEVANT PERIOD?
When Mr Dayal first enrolled in the postgraduate course at RMIT University, Centrelink calculated the allowable time for study as prescribed by s 569H of the Act. His studies commenced in the second half of 2009. When Mr Dayal’s Austudy was cancelled it was not yet the end of the allocated period. The cancellation was apparently for reasons unrelated to his studies. Mr Dayal then made the fresh claim for Austudy on 28 June 2011 which is the subject of the Tribunal’s review.
Mr Dayal sought review of the decision to refuse the fresh claim for Austudy promptly. Centrelink’s records show that a letter advising him of the outcome of the ARO’s review was sent to his last known postal address on 17 November 2011. That same postal address was the one provided by Mr Dayal to RMIT University. A letter Mr Dayal provided to Centrelink from the Academic Registrar at RMIT University dated 25 November 2011 was sent to him at that postal address as were various enrolment documents.
The contents of Mr Dayal’s emails indicate that he was either not aware of the ARO decision or thought that the ARO might reconsider matters when he supplied further documents such as the letter from the Academic Registrar that was dated several days after the date of the ARO decision. However, as indicated in the SSAT’s decision, s 237 of the Administration Act states that notice of a decision under social security law is deemed to have been given to a person if it is sent by prepaid post to the last known postal address of the recipient. The Tribunal is satisfied that on 17 November 2011 the ARO’s decision was sent to Mr Dayal at the last known postal address he gave to Centrelink. The Tribunal notes that Mr Dayal was also advised in person on 5 December 2011 at a Centrelink office of the outcome of the ARO review.
Mr Dayal sent several more emails to Centrelink concerning the outstanding Austudy payments he believed were his entitlement between January 2012 and March 2012. He also was in contact with the agency concerning other matters during that period. Centrelink officers attempted to contact him after some of his emails requesting information about his Austudy by telephone but not to all. Regardless of why Mr Dayal did not seem to be aware of the ARO’s final decision, he was deemed to have been notified of the decision in late November 2011. As indicated above, he was also told of the decision in a direct conversation on 5 December 2011.
Mr Dayal’s application to the SSAT was lodged on 4 June 2012. The Tribunal is not satisfied that Mr Dayal’s email queries to Centrelink about the ARO outcome in the months following the notification of the ARO’s decision can be considered as applications for SSAT review given the provisions of s 152 of the Administration Act. Mr Dayal phoned the SSAT on 4 June 2012 and made an oral application that is deemed to have been lodged on that date.
As indicated in the legislation cited earlier and in the SSAT decision, s 152 of the Administration Act restricts the SSAT (and this Tribunal) in relation to the date of effect of a decision, even when it is one favourable to an applicant. The Tribunal is satisfied that Mr Dayal lodged his application with the SSAT more than 13 weeks after being given written notice of a decision under social security law, namely the ARO decision. His right to seek further review by the SSAT was also referred to in that notification.
In terms of his claim for Austudy lodged on 28 June 2011, the effect of s 152 of the Administration Act is that even if a decision about that claim was favourable in principle, it would be of no effect as such payments could only start from 4 June 2012, the date of the application for review to the SSAT. On 4 June 2012 Mr Dayal was no longer undertaking his tertiary studies and he would therefore not qualify for the payment in any case.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ............................[sgd]............................................
Administrative Assistant - Legal
Dated 13 November 2012
Date of hearing On the papers Applicant Self-represented Advocate for the Respondent Mr M Hester Solicitors for the Respondent Department of Human Services Legal Division
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