Re Naylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 844
•30 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 844
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2469
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL NAYLOR Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date30 October 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]...................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Applicant was not receiving disability support pension in respect of 14 October 2008 – Applicant not qualified for an economic security strategy payment – Decision under review affirmed.
Acts Interpretation Act 1901 (Cth), s 15AB
Social Security Act 1991 (Cth), ss 23, 38B, 900, 1158
Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008 (Cth)
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635
REASONS FOR DECISION
30 October 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. I have to decide whether Mr Michael Naylor is qualified to receive a 2008 disability support pension economic security strategy (“ESS”) payment. In my view he is not entitled to such a payment, as he was not receiving disability support pension (“DSP”) in respect of 14 October 2008.
BACKGROUND
2. Mr Naylor has been in receipt of DSP for some time. His receipt of this benefit has been suspended on a number of occasions, namely when he has been imprisoned. More recently, his payment of DSP was suspended on 17 September 2008. On that date, Centrelink was advised that Mr Naylor had been admitted to Port Lincoln Prison on 16 September 2008. He was released from prison on 15 December 2008. Centrelink then provided him with assistance in the form of a crisis payment and restored his payment of DSP. No ESS payment was ever made to Mr Naylor.
PRIOR DECISIONS
3. On 19 December 2008, Mr Naylor was advised by Centrelink that he was not qualified to receive an ESS payment.
4. On 18 March 2009, an authorised review officer affirmed the decision not to pay Mr Naylor an ESS payment.
5. On 27 March 2009, Mr Naylor appealed to the Social Security Appeals Tribunal. On 1 May 2009, that Tribunal affirmed the decision not to pay him an ESS payment.
CONTENTIONS OF APPLICANT
6. Mr Naylor has stated:[1]
I have been on the pension for 20 years and whenever I get released from prison for trivial things, I only get my pension cheque and a crisis payment to: a) pay accommodation; b) buy food; c) buy a lounge, a bed, a fridge, a TV and clothes. Every time I go to prison, I have to start again.
[1] T1, folio 2.
7. Mr Naylor stated to Centrelink that he should be entitled to ESS as he was forcibly incarcerated during the period of 14 October 2008 and is a long term recipient of Centrelink benefit.[2]
[2] T8, folio 18.
RELEVANT LEGISLATION
8. Section 900(1) of the Social Security Act 1991 (“the Act”) provides that a person is “qualified for an economic security strategy payment if subsection (2), (3) or (4) [of s 900] applies to the person.”
9. In my view, subss (3) and (4) of s 900 have no relevance to this application as they relate to persons who have reached pension age.
10. Section 900(2) of the Act provides as follows:
This subsection applies to a person if:
(a)the person was receiving one of the following payments in respect of 14 October 2008:
…
(ii) a disability support pension;
…
11. Section 23(1) of the Act provides that the term “receive” has the meaning given by s 23(2), (4), (4A) and (4AA). I should mention that s 23(4A) and (4AA) are not relevant to this application of Mr Naylor.
12. What is, in my view, relevant to this application are s 23(2) and (4) of the Act. These subsections provide that a person is taken to be receiving a social security payment if that payment is “payable”. Section 23(2) provides that:
a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.
13. Section 23(4) of the Act provides that:
a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.
14. Section 1158 of the Act provides that:
An instalment of a social security pension … is not payable to a person in respect of a day on which the person is … in gaol.
15. Under s 23(5) of the Act, a person is “in gaol” for the purposes of the Act if the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence.
CONSIDERATION
16. I have considered a letter dated 27 August 2009[3] in relation to the custody of Mr Naylor. This letter is from the Department of Corrective Services. The letter states:
I can confirm that Mr Naylor was admitted into custody with the Department for Correctional Services on 16 September 2008 and discharged on 15 December 2008.
[3] Exhibit B, Annexure A.
17. This letter of confirmation does not state the reason why Mr Naylor was in gaol. However, having regard to the information which Mr Naylor has provided to the Social Security Appeals Tribunal[4] and his evidence before me, I am satisfied that between 16 September 2008 and 15 December 2008 Mr Naylor was being lawfully detained in prison while under sentence for conviction of an offence. For privacy reasons it is not necessary for me to detail the nature of the offence in these reasons. I accordingly find that on 14 October 2008 Mr Naylor was “in gaol” for the purposes of s 23(5) of the Act.
[4] See T2, folio 7.
18. As Mr Naylor was “in goal” on 14 October 2008, DSP was not payable to him. This is because of the application of s 1158 of the Act, which provides: “An instalment of a social security pension … is not payable to a person in respect of a day on which the person is … in gaol.”
19. Section 900 of the Act was recently examined by Deputy President Jarvis in ReSecretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635. Deputy President Jarvis decided that, in relation to s 900(2) of the Act, a person is only “receiving” a payment in respect of 14 October 2008 if the payment was payable and an amount was paid with respect to that date: see de Waal at [33] and [37]. I respectfully agree with this analysis.
20. As DSP was not payable to Mr Naylor in respect of 14 October 2008, it follows that he is not qualified for an ESS payment.
21. Having regard to s 15AB of the Acts Interpretation Act 1901, it is strictly not necessary to have resort to the explanatory memorandum of the Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008. However, the explanatory memorandum[5] contains the following statement:
Subsection 900(2) reflects the intention to pay the economic security strategy payment only in circumstances where the triggering social security payment was received by the person in respect of 14 October 2008.
[5] At page 3.
22. The explanatory memorandum[6] also contains the statement that:
The intention is that the person must have received an amount of the payment for the relevant instalment period that included a daily rate of payment in respect of 14 October 2008.
[6] At page 4.
23.
For the sake of completeness, I mention that I have given consideration to
s 38B of the Act which provides for a deemed notional continuous period of receipt for certain purposes. Section 38B(1) of the Act states:
The object of this section is to treat a person in certain circumstances as having received an income support payment in respect of a continuous period even though the person did not actually receive such a payment during a part or parts of the period.
24. However, s 38B of the Act only provides for determining the “continuous period in respect of which a person has received income support payments”: see the Act at s 38B(2), (3) and (4). The provision does not deem a person to have received a payment in respect of an instalment period in which a benefit was not payable: de Waal [2009] AATA 635 at [54].
CONCLUSION
25. Mr Naylor was not receiving DSP in respect of 14 October 2008 within the meaning of s 900(2)(a) of the Act. He therefore does not qualify for an ESS payment.
26. Ms Brazier, for the Secretary, has, quite properly, advised Mr Naylor to seek independent legal advice from legal aid. Mr Naylor has been advised that he should make an application for an ex gratia payment. I have therefore provided my reasons in this application at the earliest time as any consideration for an ex gratia payment will only occur after Mr Naylor has exhausted his rights of review. I have also been advised that Ms Brazier will endeavour to provide Mr Naylor with some necessary counselling assistance from a social worker.
DECISION
27. I affirm the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed:............................[Sgd]..................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 26 October 2009
Date of Decision 30 October 2009
The applicant was self-represented and appeared by telephone
Solicitor for the Respondent Ms M Brazier
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