Salter and Secretary, Department of Family and Community Services

[2003] AATA 872

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/86

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KATHRYN FAE SALTER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date5 September 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - imprisonment - whether pension payable - duration - release - crisis payments.

Legislation

Social Security Act 1991 – ss1158 and 1061JG

Social Security (Administration) Act 1999

Guide to Social Security Law

Authorities

Re Toben and Secretary, Department of Family and Community Services (2002) 65 ALD 61

Re Gilbert and Secretary, Department Social Security (1987) 13 ALD 518

Re Secretary, Department of Family and Community Services and Fairbrother (1999) 56 ALD 784

REASONS FOR DECISION

5 September 2003	Associate Professor B W Davis AM (Part-time Member)
Decision under review

1.      The applicant seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 25 March 2003, affirming a decision of Centrelink not to pay disability support pension (DSP) from 25 July 2002 to 16 October 2002, because the applicant was in gaol.

The Issue

2. The issue is whether the applicant was in gaol at that time and whether s1158 of the Social Security Act 1991 (“the Act”) prohibits social security payments during the period in gaol.

Standard of Proof

3.      The Tribunal is required to determine the matter according to the evidence and to its reasonable satisfaction, given legislative provisions.

Legislation

4.      Some social security payments are not payable during a period in gaol or in psychiatric confinement following criminal charge.

Section 1158 of the Act 1991 provides as follows:

“An instalment of a social security pension, a social security benefit, a parenting payment, or a pensioner education supplement is not payable to a person in respect of a day on which the person is:

(a)       in gaol; or

(b) undergoing psychiatric confinement because the person has been charged with an offence.”

5. Qualifications for crisis payment on release from gaol or psychiatric confinement are dealt with in s1061JG of the Act:

“A person is qualified for a crisis payment if, after the commencement of this section:

(a) the person is released from gaol, or from psychiatric confinement that the person was undergoing because he or she had been charged with committing an offence, after spending at least 14 days in gaol or such confinement; and

(b) the person claims the crisis payment either while the person was in gaol or psychiatric confinement, or within 7 days after being released; and

(c) on the day on which the claim for the crisis payment is made (including the day on which it is taken to have been made under Schedule 2 to the Administration Act:

(i) the person is qualified for a social security pension or social security benefit; and

(ii) the person is in severe financial hardship (see section 19D).”

6.      Section 1061JH deals with extreme circumstances forcing departure from home:

“1061JH(1) A person is qualified for a crisis payment if, after the commencement of this section:

(a) the person has left, or cannot return to, his or her home because of an extreme  circumstance; and

(b) the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and

(c) the person has established, or intends to establish, a new home; and

(d) at the time the extreme circumstance occurred, the person was in Australia; and

(e) the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and

(f) on the day on which the claim is made:

(i)       the person is in severe financial hardship (see section 19D); and

(ii) the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and

(g) during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person.

Note: Examples of extreme circumstances that would qualify a person for crisis payment are the person's house being burnt down, or the person being subjected to domestic or family violence. ”

Background

7.      Miss Kathryn Fae Salter was remanded in gaol between 25 July 2002 and 17 October 2002 (certification by the Tasmanian Department of Justice and Industrial Relations 1 August 2003).

8. On 22 October 2002 she claimed disability support pension and was paid from 17 October 2002. On 29 October 2002 she sought a review of this decision by Centrelink; the original decision-maker affirmed the decision and referred the matter to an ARO (Authorised Review Officer). The ARO responded on 7 November 2002, indicating that s1158 of the Act precluded a person receiving a social security pension while in gaol.

9.      Miss Salter appealed to the Social Security Appeals Tribunal (SSAT) on 14 November 2002.  Following a hearing conducted on 25 March 2003, at which Miss Salter’s evidence was heard by conference telephone, the SSAT decided on that day (25 March 2003) to affirm the decision under review, meaning that her appeal was not successful.

10.     In reaching its determination the SSAT heard evidence from Miss Salter claiming that she had been wrongfully imprisoned and wished to appeal against Centrelink’s refusal to pay her crisis payments.   Under questioning as to whether she had received a crisis payment prior to leaving the psychiatric ward at the Launceston General Hospital, she said she could not remember whether it was paid or not.    Miss Salter said she was homeless and had been sleeping in other peoples’ houses.    Her 11-year-old son has to live with his grandmother.

11. The SSAT considered this and other evidence, including some provided by Centrelink. She had initially appealed against failure to pay pension when she was in gaol, but during the hearing kept referring to crisis payments. The SSAT decided it could only deal with the decision under review and after confirmation she had been in prison during the period being considered, determined that s1158 of the Act precluded payment of disability support payment for that period. The Tribunal therefore affirmed the decision under review.

Facts and Contentions

12. The applicant did not file any statement of facts and contentions with the AAT prior to its hearing. The respondent (DFCS) provided a list of authorities and a statement of facts and contentions, principally relying upon s1158 and s1061JG of the Act.

AAT Hearing

13.     The AAT hearing scheduled to held in Launceston on 7 August 2003 had to be adjourned as the applicant did not attend.

14.     The hearing was rescheduled for 28 August 2003 and the applicant appeared, albeit after the nominated commencement time.   The applicant represented herself, the respondent was represented by Mr Brian Sparkes.

15.     After being sworn, Kathryn Fae Salter stated her case, indicating that although she had managed professional casino employment earlier in life, she now suffered from attention deficit syndrome (ADS) and various other disabilities and her life had fallen apart.    She claimed police harassment, false arrest and incorrect imprisonment, “blackmail” by doctors who would not give her an appropriate drug regime, loss of housing and being the victim of several violent personal attacks.   The person she was most concerned about was her 11-year-old son, now living with grandparents she considered violent and unsuitable to care for him.   She recognised that in her current disastrous financial and medical situation she did not understand what was occurring at times and had become more aggressive herself.

16.     The Tribunal invited the applicant to provide comment or evidence on the issue before it, namely her appeal against losing disability support pension during the period she was in gaol.   The applicant did not really respond to this query, continuing a protracted explanation of past and current events as she perceived them.   The applicant also claimed she had not sought review by the AAT, but the Tribunal notes that the application for review by the Administrative Appeals Tribunal dated 27 April 2003, clearly has her signature on it.

17. Counsel for the respondent indicated the Department would rely upon documentation and ss1158 and 1061JG of the Act. Counsel also drew attention to an error in the SSAT decision document dated 25 March 2003, where it was stated the applicant had been charged with arson and assault. Exhibits tendered showed this was incorrect, Miss Salter had been placed on remand between 25 July 2002 and 17 October 2002 on the charge of “Destroy Property”.. The matter was adjourned on 17 December 2002, with a Rule 31 notice to issue an adjournment notice. The matter has not been further listed.

18. The respondent cited a number of case authorities, such as Toben and Secretary, Department of Family and Community Services (2002) 65 ALD 61; Gilbert and Secretary, Department Social Security (1987) 13 ALD 518, to demonstrate that an individual who had spent time in custody could not receive social security payments while on remand or in gaol, whether “wrongfully” imprisoned or not. Social Security provisions were designed to avoid “double dipping” and if the community was meeting all costs of imprisonment, including daily care, then no further payment should occur. Sections 1158 and 1061JG of the Act were emphatic in this regard.

19.     Counsel for the respondent indicated he had sympathy for Miss Salter’s situation, nonetheless the issue must be decided by law and the decision under review should be affirmed.

Analysis

20.     The Tribunal is required to stand in the shoes of the original decision-maker, assessing all information anew, but being bound by statutory provisions and case precedent where appropriate.

21.     It is common ground amongst parties to this case that Miss Salter’s life is in some disarray, indeed she has expressed this view herself.   She was not able to focus on grounds for her appeal during the Tribunal hearing, apart from claiming she had been incorrectly imprisoned and that she was in dire financial straits, which might have been a motivation for application.   Nonetheless, documentation before the Tribunal clearly indicates that she did spend a period in gaol between 25 July 2002 and 17 October 2002, the grounds being stated as “destroy property”.

22. Section 1158 of the Act is quite specific that this disqualifies her from receiving social security payments during the period of incarceration:

“An instalment of a social security pension, a social security benefit, a parenting payment,  or a pensioner education supplement is not payable to a person in respect of a day on which the person is:

(a)       in gaol; or

(b)      undergoing psychiatric confinement because the person has been charged with an offence.”

The Tribunal heard evidence that she had subsequently received crisis payment on release from gaol (s1061JG of the Act) and has continued to receive payments since.

23. The Tribunal is not in a position to determine whether her claim of false imprisonment is correct or not, but it does not influence the outcome. As counsel for the respondent correctly pointed out, s1158 of the Act applies, whether an individual has been correctly charged or not (Gilbert and DSS (1987) 13 ALD 518).

24.     Having considered all evidence before it, the Tribunal finds that Miss Salter cannot be paid disability support pension for the period 25 July 2002 to 16 October 2002, thus her appeal fails and the decisions of Centrelink and the Social Security Appeals Tribunal are upheld.

Decision

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  28 August 2003
Date of Decision  5 September 2003
Counsel for the Applicant         Applicant appeared on own behalf.
Solicitor for the Applicant           
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink