Reihana and Secretary, Department of Social Services (Social services second review)

[2016] AATA 711

Reihana and Secretary, Department of Social Services (Social services second review) [2016] AATA 711 (15 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1703
Re	Toni Reihana
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J Sosso
Date	15 September 2016
Place	Brisbane

The decision under review is affirmed.

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Senior Member J Sosso

Catchwords

SOCIAL SECURITY – disability support pension – eligibility for arrears of payment – occurrence of an event or change of circumstances – cessation of paid employment.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) ss 110, 111

Cases

Bell Group Ltd (in liq) & Ors v Westpac Banking Corporation & Ors; [2008] WASC 239 (2008); 70 ACSR 1

REASONS FOR DECISION

Senior Member J Sosso

15 September 2016

1. Mr Toni Reihana (the applicant) seeks a review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 10 March 2016, which affirmed the decision of the Department of Social Services, that he is not entitled to arrears of the disability support pension (DSP) before 12 June 2015.

2. Mr Toni Reihana has been paid DSP since 15 February 2008.

3. The applicant commenced working for Mastercare Highrise Cleaning Services Pty Ltd (Mastercare) in February 2009 as a cleaner on a casual basis, and declared earnings of $169 per fortnight. The applicant’s DSP payment rate was reduced accordingly.

4. On 18 December 2012 the applicant’s employment with Mastercare was terminated.

5. During the period 18 December 2012 until 12 June 2015, when Centrelink reviewed the applicant’s payment rate, his DSP was calculated on the premise that he continued to be in paid employment.

6. It is not disputed that the applicant contacted Centrelink on both 8 March 2013 and 12 June 2015.  It is also not disputed that the applicant informed Centrelink of his cessation of employment on 12 June 2015.

7. The applicant contends, and, the Secretary, Department of Social Services disputes, that he also informed Centrelink of the cessation of his employment on 8 March 2013.

   THE ISSUE

8. The sole issue to be determined is when the applicant informed Centrelink of cessation of his employment.

   The Legislative Framework

9. Section 110 of the Social Security (Administration) Act 1999 limits payment of arrears. Of relevance to this matter is subsection (1), which provides:

   “(1) Subject to subsections (2) to (11)  (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:

   (a)  on the day on which the person so informed the Department; or

   (b)  on the day on which the event or change occurred;

   whichever is the later.”

10. The term “favourable determination” is defined in section 108 by reference to section 78, which in this matter means an increase in the DSP payment rate.

11. The combined effect of sections 110 and 111 is to preclude payment to the applicant of any increase in the DSP before the time that he informed Centrelink of his cessation of employment.

    Contentions of the Applicant

12. The applicant was self-represented and gave sworn evidence in person.

13. At hearing, the applicant was adamant that he informed Centrelink on 8 March 2013 that he was no longer in paid employment. He swore that he was under great stress at that time due to litigation he was embroiled in.  Reference was made to proceedings before the Queensland Civil and Administrative Tribunal by his landlord to evict him from the Beenleigh Showgrounds where he resided in a caravan. It was only when he left Australia to return to New Zealand that he had a “clear head” and then, some three months after he ceased working, he contacted Centrelink.

14. It is not disputed that the primary reason the applicant contacted Centrelink was to ensure that his move to New Zealand did not result in any disruption of his social security entitlements.

15. The applicant informed the Tribunal that he did not think that the cessation of his employment would have any negative impact on the DSP payment rate. Indeed, the applicant confirmed that he had, since approximately 2013, accessed his online Centrelink account, which clearly sets out under the heading “INFORMATION USED FOR CALCULATING YOUR REGULAR PAYMENT” details of his “Annual Income” and “Regular Fortnightly Earnings”.

16. In the course of giving evidence, the applicant stated that he specifically recalled that the Centrelink officer who spoke to him on 8 March 2013 was a “middle aged white man”; which conclusion was based on the sound of his voice.

17. On 12 June 2015 the applicant made contact with Centrelink. This followed interaction between the applicant and the New Zealand authorities responsible for child support payments. It was as a result of this contact that the applicant became aware for the first time that the cessation of his employment in 2012 had an impact on the quantum of his DSP payments. Following receipt of this information he sent an email message to Centrelink (Exhibit 1 p. 107, Exhibit 2 Att. C) in which (inter alia) he outlined his position:

    1.) I recall clearly that I did advise one of your colleagues over the phone after the above part-time employment terminated that I never had the above employment anymore and that these earnings be removed from my records…

    7) And as I said to you, the numerous times I accessed my online account, or viewed online letters I could always see that the Mastercare earnings were still there on my records, and was puzzled as to why they were still there after I had intentionally advised your colleague over the phone to note the terminated payment and the discontinued fortnightly income etc.

    8.) But I only ever saw it as an oversight by your colleague, and never stopped to think of the detriment it might have been causing me until now – when I stopped to ponder what detriment those undeleted Mastercare earnings would have on my child support assessment by IRD (NZ)…

    9.) Ultimately if the failure to update my records and delete my fortnightly earnings from Mastercare has impacted upon my Centrelink pension payments, then I ask that arrears be paid back to the time my employment ceased with Mastercare back in 2012.”

18. The gravamen of the applicant’s submission was that Centrelink’s record keeping is far from satisfactory, and that when weighing the material submitted by the Secretary, Department of Social Services (the respondent), the Tribunal should approach this with some caution. In this regard, the Applicant referred to the details of his “Profile” on the Centrelink webpage (>

    The extracts from his Profile page of 9 March 2016 (Exhibit 1 p. 112) and 30 August 2016 (Exhibit 4) both have under the heading “Accommodation” the following statement: “I pay site fees of $130.00 per week. I do not live in shared accommodation.” The applicant contends that this is a reference to the time he lived at the Beenleigh Showgrounds and that he had informed Centrelink in 2013 of his changed residential circumstances. In short, despite providing information to Centrelink, this was not reflected in the information on the “My Profile” webpage.

    Contentions of the Respondent

19. The respondent submits that the applicant did not inform Centrelink on 8 March 2013 that he had ceased work. The purpose of the contact, it is submitted, was a pre-departure portability interview for the purpose of determining and explaining the applicant’s DSP entitlements while he was overseas.

20. As will be explained later, this was not a pre-departure interview, but a post-departure telephone conversation initiated by the applicant from New Zealand.

21. The respondent further submits that the applicant knew, or should have known, that he was required to inform Centrelink within 14 days of starting or stopping work.  Between 18 December 2012 and 12 June 2015 the applicant received 14 letters and information either informing him that his work income was being taken into account in calculating his DSP or stating the notification requirement. Yet, it is submitted, the applicant failed at any time during that period to notify Centrelink of his change in circumstances.

22. During the hearing, Mr Warren for the respondent, drew my attention to a Record of Portability Interview (Exhibit 2 Att. B), which is a contemporaneous Centrelink record of the telephone conversation with the Applicant on 8 March 2013.

23. The Centrelink officer who made the record, noted that the applicant travelled to New Zealand on 7 March and intended to return to Australia sometime between 18 April and 6 June 2013. Amongst the matters recorded as being discussed were:

    (a)the Clean Energy Supplement;

    (b)Pensioner Concession Card;

    (c)DSP; and

    (d)Rent Assistance.

24. The only recorded discussion concerning the applicant’s DSP was as follows:

    “DSP: Disability Support Pension is portable until at least 05 SEP 2013. From 05 SEP 2013 Disability Support Pension will cancel or proportionalise…….No known future event prevents portability of DSP as detailed above.”

    Consideration

25. The Tribunal has before it extensive documentary material from Centrelink. Amongst that material is a contemporaneous note prepared by the Centrelink officer of the telephone conversation with the applicant on 8 March 2013.

26. Conversely, the applicant submits that the Tribunal discount the weight of this material because it is suggested that Centrelink has a history, in his case, of inaccurately and incompletely recording the information he has provided.

27. The thrust of the applicant’s submission is that he was unaware that the termination of his employment would have impacted on his DSP because he earned such a small amount of money. Consequently, although aware during 2013 -2015 that Centrelink recorded that he was employed, he was not concerned because he thought it was irrelevant. It was only after the New Zealand authorities commenced investigating the quantum of his earnings for the purpose of child support that he contacted Centrelink.

28. If the applicant was of the mistaken belief that his employment status had no bearing on the quantum of his DSP entitlements, why would the applicant inform Centrelink? Presumably not because there was an obligation placed on him to do so within 14 days of starting or stopping work or a change in earnings. The applicant conceded that he took no steps to inform Centrelink of the termination of his employment between December 2012 and March 2013 despite this obligation. Further, he was aware of the inaccuracy in the records sent to him by Centrelink for two years between 2013 and 2015, yet, again, took no steps to rectify the inaccuracy.  It is not disputed that the applicant only became concerned about the inaccurate recording of his employment status, of which he was fully aware for two years, after the New Zealand authorities initiated child support investigations

29. In short, the applicant, from the undisputed evidence before the Tribunal, only became pro-active in 2015 because of the intervention of a third party, and, consequently, because it was in his interest to contact Centrelink, as distinct from any desire to comply with his obligations as a DSP recipient.

30. The applicant said that he had a very clear recollection of the telephone conversation of 8 March 2013.  Further, he recounted the words he used when informing the Centrelink officer of the termination of his employment, the response of the Centrelink officer and even the age, race and gender of the Centrelink officer.  It is surprising that the applicant would have such recollection of a conversation more than three years ago, at a time when the he was under great personal stress and of a matter (the termination of employment) which he thought at the time was irrelevant.

31. The veracity of the applicant’s account of the telephone conversation of 8 March 2013 is further called in question due to the fact that the contemporaneous note of the conversation (Exhibit 2 Attachment B) concludes with the following words: “DOC by Sally Hancock on 0362222546.” In short it appears that the Centrelink officer who spoke to the applicant was not a middle aged white male, but a female.

32. When this was pointed out to the applicant he said that while he stood by his version of events he could have confused his March 2013 telephone contact with Centrelink with contact he made in June 2013.

33. I gave leave for the respondent to interrogate Centrelink records to determine if in fact the author of the 8 March 2013 was Ms. Sally Hancock. On further interrogation the respondent confirmed that the author was Ms. Hancock.

34. In the mists of time memory fades, and what is said to be recollection may in some instances be  reconstruction. This point was very helpfully explained by Owen J in Bell Group Ltd (in liq) & Ors v Westpac Banking Corporation & Ors [2008] WASC 239; (2008) 70 ACSR 1. His Honour made the following observations (1052-1053, 1059):

    “1052 …I do not believe that any witness set out deliberately to lie to me. I think most witnesses did their best to present a reasonable account of events and their participation in them. The reliability of that account is, of course, a different matter. In the end, my assessment of the oral testimony was based primarily on its intrinsic reliability, rather than on any appeal to credibility in the sense of deliberate and calculated obfuscation. As I have already said, my primary port of call in assessing reliability was the contemporaneous documentation.

    1053 In a case of this nature, the distinction between recollection and reconstruction is important. And it has a direct impact on reliability. There can be a tendency, with the passing of time, to meld the two. In that process, a propensity might develop, albeit innocently, to adopt a position advantageous to the case being presented. ……

    1059 At the risk of tedious repetition, in my view the problems of refreshing memory (if they exist) go to weight rather than to admissibility. And the problems of reconstruction, as distinct from recollection, fall to be assessed according to reliability; how the evidence fits within the factual matrix of which it is part.”

35. I have assessed the testimony of the applicant within the factual matrix before the Tribunal. As a self-represented party I have accorded the applicant every opportunity to present his case. Nonetheless there is conspicuous chasm between the documentary evidence tendered by the respondent and the testimony of the applicant. Like Owen J, my primary port of call in assessing reliability has been contemporaneous documentation.

36. The contemporaneous documentation adduced by the respondent discloses no basis for the applicant’s submission that he informed Centrelink in March 2013 he had ceased working. The evidence before the Tribunal leads to the conclusion that the applicant’s modus operandi was to act purely in his own interest, only contact Centrelink when it suited him and only give Centrelink information that helped him. Even though he knew that Centrelink was under the misapprehension that he was working, he failed to take any steps to rectify that mistaken belief for two years because he did not think it had any impact on him.  He did not contact Centrelink even though he had a legal obligation to do so. The applicant only acted when he was contacted by the New Zealand authorities and sought to minimise his child support obligations by removing the antiquated misinformation about his employment status.

37. The applicant presents himself as a very capable and confident person. From his own testimony he has quite considerable experience in self representation before Tribunals and Courts. I do not suggest that the applicant has attempted to mislead the Tribunal or deliberately invent a evidentiary trail away from the truth. However in the clash between the respondent’s documentary evidence and the applicant’s oral testimony, I prefer the former.

38. During the course of the hearing, the respondent made other submissions, particularly in relation to section 109 of the Act and section 43(6) of the Administrative Appeals Tribunal Act 1975. For the reasons given above I do not need to deal with those submissions in determining this matter.

    Conclusion

39. I find that the applicant did not on 8 March 2013, or at any time between 18 December 2012 and 11 June 2015 notify Centrelink that he had ceased employment on 18 December 2012, and that therefore he is not entitled to arrears of DSP before 12 June 2015.

    Decision

40. The Tribunal affirms the decision under review.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso.

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Associate

Dated 15 September 2016

Date of hearing	1 September 2016
Date final submissions received	5 September 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services