Re Fairweather and Secretary, Department of Family and Community Services

[2005] AATA 201

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/672

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANICE FAIRWEATHER

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date11 March 2005           

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

…................[Sgd].........................

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY - Austudy payments – applicant given notice of decision by Centrelink – maintenance payments incorrectly assessed as income – request for review of decision made more than 13 weeks after notice given – arrears of Austudy not payable to applicant – decision affirmed.

Social Security Act 1991
Social Security (Administration) Act 1999 ss 109

Austin and Another 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  

REASONS FOR DECISION

11 March 2005 Mr RG Kenny, Member      

1.      Janice Fairweather (the applicant) undertook study at the Australian Institute of Professional Counsellors in Adelaide in the periods from 27 March 2001 until 24 January 2002 and from 20 May 2002 until 27 February 2003.  She made applications for Austudy payments, a form of income support payable under the Social Security Act 1991 (the Act).  Her applications were successful and she was paid throughout her periods of study.  She received the maximum benefit until November 2001 but, thereafter, her payment was reduced on the basis that she was receiving income on a fortnightly basis.

2.      Mrs Fairweather moved to Queensland in February 2003 and, during that year, she formed the opinion that she had not been paid her full Austudy entitlement because Centrelink had incorrectly characterised the fortnightly amount she received as income rather than maintenance payments from her former husband.  By letter, dated 11 September 2003, she wrote to Centrelink and requested that this be investigated.

3.      On 6 May 2004, a customer services officer with Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services (the respondent), accepted that the monies received by Mrs Fairweather did not constitute income and conceded that she had been underpaid. The delegate determined that arrears should be paid to her for the period from 6 November 2001 until 24 January 2002.  However, the officer also determined that arrears could not be paid to her for any other period.

4.      On 28 May 2002, an authorised review officer varied that decision by determining that arrears were also payable to Mrs Fairweather for the period from 24 September 2002 until 16 December 2002.  However, this officer determined that arrears were not payable for the period from 20 May 2002 until 23 September 2002.

5.      On 29 July 2004, that decision was affirmed by the Social Security Appeals Tribunal and, on 26 August 2004, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

6.      The applicant attended the hearing but was not represented.  The respondent was represented by Ms S Oliver, an advocate from the respondent’s Service Recovery Team.

7.      At the hearing, the following material was tendered and taken into evidence:

exhibit 1 –the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (“T” Documents - T1 to T47);

exhibit 2 -an extract (pages 13 and 21) from the Guide to Commonwealth Government Payments;

exhibit 3 -a letter, dated 24 September 2002, from Centrelink to the applicant;

exhibit 4 -a further letter, dated 10 December 2002, from Centrelink to the applicant;

exhibit 5 -a letter, dated 13 November 2001, from Fiona Hamilton, a Counsellor with Adelaide Central Mission;

exhibit 6 -a medical certificate, dated 14 November 2001, from Dr Terry Nikolitsis; and

exhibit 7 -a further letter, dated 24 November 2004, from Centrelink to the applicant.

Issues and Legislation

8.      It is common ground in this case that maintenance payments do not constitute income for the purposes of calculating Austudy payments and also that Mrs Fairweather was not paid the full entitlement of Austudy that was due to her under the Act.  Arrears have been paid to her to remedy that situation except for the period from 20 May 2002 until 23 September 2002.  The payability of those arrears is the issue for determination and, of relevance to that decision, are the following provisions of the Social Security (Administration) Act 1999 (the Administration Act):

“109.(1)  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)within 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 determination embodying the original decision took effect.

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.”

Applicant’s Case

9.      Mrs Fairweather said that, in her application forms to Centrelink for Austudy payments, she advised that she was receiving maintenance payments in the amount of $450 per fortnight from her ex-husband.  She said that she had no reason to believe that the Austudy payments to her were incorrectly calculated.  She recalled receiving a Centrelink letter, dated 21 May 2002, which advised her that she was to receive payments in the amount of $158.71 per fortnight.  She usually read the detailed information in Centrelink’s letters but, at that time, she was under significant personal pressure and may not have fully understood all that the letter contained.  However, she said that there was nothing in the letter which made her believe that the payment was incorrectly calculated. 

10.     She recalled going to the Port Adelaide office of Centrelink in July 2002 and in August 2002 but did not query the amount that she was being paid or provide any further information about her income.  The purpose of these visits was to obtain a statement from Centrelink of Austudy payments so that she could obtain concessions on various utilities provided by local and state authorities.

11.     In December 2002, she received a letter from Centrelink (exhibit 4) which requested that she provide the name of the employer who was making payments to her in the amount of $450 per fortnight.  Mrs Fairweather then contacted Centrelink to advise that this was not income but, rather, maintenance payments from her ex-husband.  From then on, the income test was appropriately applied and she received the full entitlement of her Austudy payment.

12.     Mrs Fairweather submitted that she had done all that she could to provide Centrelink with the correct information and that Centrelink was at fault in assessing her payments incorrectly.  She submitted that she should be paid her full entitlement.

Respondent’s Case

13. Ms Oliver, whilst conceding that Centrelink had paid the incorrect amount of Austudy payment to Mrs Fairweather, submitted that the respondent was precluded from making further payments of arrears by the terms of section 109 of the Administration Act. She submitted that the decision to grant payments to Mrs Fairweather for her second period of study was notified to her in the letter of 21 May 2002. She submitted that this letter contained all relevant information to constitute a valid notice, including the amount she was to be paid and a statement of what her appeal rights were.

14.     Ms Oliver submitted that no step was taken by Mrs Fairweather in relation to her payments until after she had received the December letter from Centrelink requesting information about her income.  This was on 16 December 2002 when she telephoned Centrelink to advise that the regular payments she was receiving comprised maintenance.  Ms Oliver submitted that, as this was more than 13 weeks after the decision of 21 May 2002, arrears were not payable to her.

15. Ms Oliver referred to a Centrelink letter, dated 24 September 2002, and submitted that this constituted a notice of another decision concerning Mrs Fairweather’s Austudy payments. Ms Oliver noted that the respondent had treated Mrs Fairweather’s telephone call of 16 December 2002 as an application to review that decision of 24 September 2002 and, because this resulted in a favourable determination, arrears were paid from and including that date in accordance with subsection 109(1) of the Administration Act. However, she submitted that subsection 109(2) of the Administration Act precluded payment of arrears in the period from 20 May 2002 until 23 September 2002.

Consideration

16.     The facts in this matter are not disputed.  The letter, dated 21 May 2002, to Mrs Fairweather was in evidence and, consistent with the submission of Ms Oliver, it advised Mrs Fairweather that Austudy would be paid to her from 20 May 2002.  It advised her of the amount of that payment and also set out appeal avenues available to her if she wished to challenge the decision.

17. I am satisfied that the letter of 21 May 2002 constituted a notice for the purposes of section 109 of the Administration Act. While that notice did not provide reasons for making the decision, that does not preclude it from constituting a notice for the purposes of the Administration Act: see Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185 at 196 and Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330 at 337.

18. In the context of subsection 109(2) of the Administration Act, I am satisfied that a decision was made in relation to Mrs Fairweather’s Austudy payment and that the letter of 21 May 2002 was a notice given to her informing her of the decision. I am also satisfied that no step was taken by her to review the original decision until 16 December 2002 which was more than 13 weeks after the notice was given. Thereafter, a favourable determination was made which resulted in increased Austudy payments and a payment of arrears.

19. Subsection 109(2) of the Administration Act makes it clear that the favourable determination is to take effect on the day on which the application for review was made. I have noted Mrs Fairweather’s evidence that she approached officers at the Port Adelaide Centrelink office in July and August 2002. However, I am also satisfied that she did not seek review of the original decision on either of those occasions. It follows that the earliest date from which arrears can be paid to her, on the basis of the decision of 21 May 2002, would be 16 December 2002. Of course, as noted above, the respondent has treated the letter of 24 September 2002 as a further decision and has allowed for arrears to be made payable from that date.

20.     I am satisfied that arrears are not payable to Mrs Fairweather in the period from 20 May 2002 until 23 September 2002.

Decision

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  28 February 2005 (at Coolangatta)
Date of Decision  11 March 2005 (at Brisbane)
The Applicant appeared in person
For the Respondent                  Ms S Oliver, Departmental Advocate