Romano and Secretary, Department of Family and Community Services - [2001] AATA 57

DECISION AND REASONS FOR DECISION [2001] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/80

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARIO ROMANO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date1 February 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pension, benefits and allowances – Austudy – rate of payment – whether long-term income support student - whether entitled to backpayments at higher rate – date of effect when review sought more than three months after decision setting rate is made
Social Security Act 1991 ss. 591, 1067K
Acts Interpretation Act 1901 s.15AB
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998

REASONS FOR DECISION

1 February 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Mario Romano (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 28 February 2000 (T2) which affirmed a decision of an authorised review officer (ARO) of the respondent dated 14 January 2000 (T9) affirming a delegate of the respondent's decision made on or about 23 December 1999 (T5/17) not to pay a higher rate of Austudy to the applicant as and from 30 July 1998.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with three exhibits lodged by the respondent (Exhibits R1-R3). The applicant represented himself, and was not required for cross-examination. The respondent was represented by Mr J. Underwood, a departmental advocate.
The applicant was in fact paid Austudy at the higher rate with effect from 23 December 1999, leaving the issue for the Tribunal as to whether he is entitled to the higher rate for the period 30 July 1998 to 23 December 1999 inclusive.
history of the application
The applicant commenced studying full-time in 1998, undertaking a course in electrical engineering. By letter dated 31 July 1998 the applicant was informed that he had been granted Austudy at the rate of $255.50 with effect from 30 July 1998 (Exhibit R2). That letter stated (inter alia):
"…
If there are no further changes to your circumstances, your next payment for the period 30 July 1998 to 12 August 1998 will be $255.50. This amount may be less if you tell us you earned money from employment during this period. More information about your payment is detailed on the back of this letter.
…
The rate of your Austudy payment may need to be adjusted if there are changes in your circumstances…
THE CHANGES YOU MUST TELL CENTRELINK ABOUT ARE:
If you or your partner (includes a de facto partner):
…
stop living with your partner, or your partner dies;
…
If you think our decision is wrong, phone us or come and see us. We will check the facts and explain the decision. If you still do not agree, you can ask for one of our Authorised Review Officers (ARO) to look at it…Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you may only get back payment from the date you ask.
…"
The applicant notified the respondent that he had separated from his wife on or about 28 December 1998, and his rate was adjusted accordingly. The applicant was sent a letter advising of the change of rate on 6 January 1999 (T4) which stated (inter alia):
"…
If there are no further changes to your circumstances, your next payment for the period 31 December 1998 to 13 January 1999 will be $257.40…
Your Austudy is being paid at the single rate from 28 December 1998 because you no longer have a partner.
You can also read the back of this letter for information about your Social Security rights and what you have to tell us.
…"
The back of that letter contained notification information in similar terms to the 31 July 1998 letter.
The applicant contacted the respondent on 16 and 23 December 1999 to query his rate of payment (T5). On or about 23 December 1999 a delegate of the respondent decided to increase the applicant's rate as and from 23 December 1999 to the rate of a long-term income support student. The delegate determined not to backdate the higher rate as the applicant had not asked for a review within three months of the decision which set his original rate.
This decision not to backdate the higher rate of payment was affirmed upon review by an ARO on 14 January 2000 (T9) and the SSAT on 28 February 2000 (T2). On 22 May 2000 the respondent decided that the applicant had not been entitled to the higher rate as from 23 December 1999 and reduced his rate back to the normal single rate as from 22 May 2000. The respondent did not seek to recover any monies for the period 23 December 1999 to 22 May 2000, considering that the overpayment was the result of sole administrative error.
applicant's submissions
The applicant told the Tribunal that he did not have any documents from the respondent that informed him of the three month limit within which to seek review in order for payments to be backdated if successful. He stated that it was only at a later time in 1999 that he realised, after talking with other students, that he might be receiving an incorrect rate.
The applicant submitted that "long-term income support student" should be applied to someone in his position who is already studying as a student. He further submitted that English is not his first language and that he is studying electrical engineering with English as his second language, such that he meets the legislative requirements. He told the Tribunal that he failed to see the use of a system that only applied to people undertaking a formal course in English as a second language.
The applicant told the Tribunal that whilst he is working part-time as well as studying, he finds it difficult to meet all of his expenses, and that the intention of the legislation should be that support payments are paid on the basis of whether or not someone deserves such payments.
The applicant submitted that it is not fair that his rate was not backdated when the respondent failed to provide sufficient information, and that he was hurt financially when he discovered that he had been receiving the incorrect rate.
respondent's submissions
Mr Underwood submitted, on behalf of the respondent, that the applicant did not satisfy the criterion in sub-paragraph 1067K(1)(d) of the Social Security Act 1991 (the Act) because he had not been in receipt of any of the payments listed in the sub-paragraph prior to him separating from his wife. The applicant does not satisfy sub-paragraph 1067K(1)(a) of the Act prior to separation in Mr Underwood's submission.
Mr Underwood submitted that the applicant does not satisfy sub-section 1067K(2) of the Act in that the reference in sub-paragraph 1067K(2)(d) to "course in English" refers to a course in English as a second language approved by the Secretary of the respondent (referring to section 15AB of the Acts Interpretation Act 1901 and the Explanatory Memorandum for the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998).
Mr Underwood submitted that sub-section 591(3) of the Act limits the date of effect of a favourable determination when review has not been sought within three months of notification of a decision.
discussion and findings
There are two effective decision dates applicable to the setting of the applicant's rate in this case. The applicant was initially informed of his rate as and from 30 July 1998 in a letter dated 31 July 1998 (Exhibit R2). The applicant properly informed the respondent when he separated from his wife, and a new decision was made by the respondent, setting his rate as and from 31 December 1998 at the single rate, as conveyed in the letter dated 6 January 1999 (T4). Whilst the applicant maintained that the respondent did not inform him of the necessity to appeal within three months, the Tribunal notes that both of these letters advise him that if he did not query the decision within three months, the scope of backpayments may be limited.
The applicant appears to have initially queried the rate of payment he was receiving on 16 December 1999 (T5/16). It appears, however, that it was not until 23 December 1999 that he discussed the matter properly with an officer of the respondent and it could be said that he sought review. Sub-section 591(3) of the Act states:
"591.(3) If
(a)a decision (previous decision) is made in relation to an austudy payment; and
(b)a notice is given to the person to whom the austudy payment is payable telling the person of the making of the previous decision; and
(c)the person applies to the Secretary under section 1240 more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review."
The Tribunal is satisfied, and so finds, that the letters dated 31 July 1998 (Exhibit R2) and 6 January 1999 (T4) are notices for the purposes of sub-paragraph 591(3)(b) of the Act. Given that the applicant sought review of both the July 1998 and January 1999 decisions in December 1999, the favourable determination of 23 December 1999 cannot be backdated pursuant to sub-paragraphs 591(3)(c) and (d) of the Act.
The Tribunal is not invested with any means by virtue of which it can sidestep the provisions of section 591 of the Act. In this case, the applicant was notified of the "three month rule" and even though he remained unaware that perhaps his rate was wrong until late in 1999, the legislation clearly imposes time limits in respect of backdating payments. This Tribunal must apply the legislation as it determines to be the correct manner, and in this case, it means that the applicant is not entitled to backpayment by virtue of section 591 of the Act.
In the circumstances it is not necessary to consider the issue of qualification for the higher "long term income support student" rate of payment. The Tribunal notes, however, that it concurs with Mr Underwood that sub-paragraph 1067K(2)(d) of the Act is intended to be directed to formal courses in English as a second language (as is apparent by reference to the Explanatory Memorandum).
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 January 2001
Date of Decision  1 February 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J. Underwood
Solicitor for the Respondent    Centrelink