Secretary, Department of Social Services and Aimee McGee
[2014] AATA 567
•7 August 2014
[2014] AATA 567
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1820
Re
Secretary, Department of Social Services
APPLICANT
And
Aimee McGee
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 7 August 2014 Date of written reasons 15 August 2014 Place Adelaide For the reasons given orally at the conclusion of the hearing the Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes in its place a decision that the Authorised Review Officer’s decision be affirmed.
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Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Newstart allowance - income maintenance period - calculation - payment in lieu of notice - commencement date - decision under review set aside
LEGISLATION
Social Security Act 1991
REASONS FOR DECISION
Senior Member N A Manetta
15 August 2014
These are the reasons I delivered orally in this matter, which, at the applicant’s request under section 43(2A) of the Administrative Appeals Tribunal Act, 1975, I have now reduced to writing.
This is an application by the Secretary, Department of Social Services. Ms Aimee McGee is the respondent to the proceedings.
RESPONDENT’S ABSENCE
I note that Ms McGee did not attend the hearing today. She did not attend the hearing listed on 22 July 2014 either. The Tribunal’s file indicates that a letter was sent to her dated 22 July 2014. I was informed by my assistant that it was sent to her in two ways: first, by ordinary post, and, secondly, by registered post. I note the copy on file bears a note that the original letter was sent by registered post. The letter warned Ms McGee that if she did not attend today, the Tribunal would proceed in her absence.
The applicant’s advocate, Mr Visser, submitted that I should proceed to determine the application in the respondent’s absence. I have decided to do so. In all the circumstances, I do not believe that there is any breach of the rules of procedural fairness in my so acting.
I accept the applicant’s submissions that the Social Security Appeals Tribunal (SSAT) fell into error in this case. I shall first describe the facts briefly and then set out my conclusions.
FACTS
Ms McGee ceased work in September 2012, and she received monies from her employer when she left. Page 64 of the T Documents, received into evidence as Exhibit A1, shows she received the following amounts (ignoring cents):-
·$9,461 as a “redundancy payment” (said to be equivalent to 16 weeks’ wages);
·$3,153 as a payment “in lieu of notice” (said to be equivalent to 4 weeks’ wages);
·$579 as payment for accrued annual leave (said to be equivalent to 3 days’ wages);
·$8,200 as payment for accrued long service leave (said to be equivalent to 10 weeks’ wages).
The document at page 64 shows that the period covered by the payments totalled some 30.6 weeks. When Ms McGee applied for a Newstart allowance, the Department treated all these amounts as relevant to its calculation of the income maintenance period (IMP); i.e., that period during which the applicant would be ineligible to receive the allowance given other monies available to her. The Department applied an IMP of 30.6 weeks from 10 September 2012 (the day her employment ended) until 10 April 2013.
Ms McGee requested an internal review of the decision. The Authorised Review Officer (ARO) shortened the IMP in her favour by four weeks because of an error in the period said to be covered by the redundancy payment of $9,461. It should have read “12” weeks, not “16”. The ARO declined, however, to shorten the IMP period further in light of Ms McGee’s personal circumstances, because Ms McGee, in his view, did not have any eligible “unavoidable or reasonable expenditure” he ought take into account.
Ms McGee appealed the ARO’s decision to the SSAT. Her appeal was partially successful, but partially successful only. The SSAT shortened the IMP by a further four weeks (that is, in addition to the four weeks already allowed by the ARO) because the SSAT held the severance payment of $3,153 (equalling four weeks’ wages) should not have been included in the calculation of the IMP. A payment “in lieu of notice” was not a “redundancy payment” as defined in the Social Security Act 1991 and for that reason it could not be considered for the purposes of calculating the IMP. This legal conclusion was reached because certain decisions in this Tribunal referred to in the SSAT’s decision were said to require it.[1]
[1] The decisions are referred to at [21] of the SSAT’s reasons. They are: Finch v Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 745 and Holovka v Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 442.
The SSAT decided, however, that there was no basis for any further alteration of the IMP as there was no “unavoidable or reasonable expenditure” by Ms McGee that ought to be taken into account.
APPLICATION TO THIS TRIBUNAL AND DECISION
The Secretary applied to this Tribunal for a review of the SSAT’s decision. The Secretary maintains the SSAT erred in law. I accept Mr Visser’s submission that the decisions referred to by the SSAT are irrelevant because they have been superseded by a legislative amendment applicable to this case which took effect from 30 November 2011. This legislative amendment[2] specifically makes payments “in lieu of notice” redundancy payments for the purposes of calculating IMPs. Payments in lieu of notice are, therefore, to be included in calculating an IMP from 30 November 2011.
[2] Contained in Schedule 6 of the Social Security and Other Legislation Amendment Act, 2011 (Act 145 of 2011).
I further accept the applicant’s submission that all four payments listed at page 64 in the T documents ought to be taken into account in fixing the IMP period. I accept the applicant’s submission that the ARO’s decision to reduce the IMP period by four weeks to take account of the error appearing at page 64 was appropriate.
As Ms McGee did not attend the hearing, I am unable to consider any submission she might have wished to make in respect of her personal circumstances and, in particular, in respect of any “unavoidable or reasonable expenditure” by her. There is no basis in the material before me today for departing from the SSAT’s and ARO’s decisions in this respect.
All in all, therefore, I accept the applicant’s submission that the decision reached by the ARO is the preferable decision on the material before me today. The Tribunal will set aside the SSAT’s decision and substitute in its place a decision that the ARO’s decision be affirmed. This order will have the effect of reinstating the ARO’s decision.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .........................[Sgd]...............................................
Administrative Assistant
Dated 15 August 2014
Date(s) of hearing 12 March 2014 and 7 August 2014 Advocate for the Applicant Mr C Visser Solicitors for the Applicant Department of Human Services Respondent In person
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