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

[2018] AATA 4616

Shannon; Secretary, Department of Social Services and (Social services second review) [2018] AATA 4616 (22 November 2018)

Division:GENERAL DIVISION

File Number:           2017/7307

Re:Secretary, Department of Social Services

APPLICANT

AndJulie Shannon

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:22 November 2018

Date of written reasons:        18 December 2018

Place:Adelaide

The Tribunal sets aside the decision of the Social Services and Child Support Division dated 7 November 2017, and in substitution therefore decides that the decision of the Authorised Review Officer (“ARO”) dated 10 October 2017 be reinstated, namely, that the start date of the Respondent’s New Start Allowance of 10 July 2017 was the correct and preferable decision.

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Senior Member B J Illingworth

CATCHWORDS

SOCIAL SECURITY – newstart allowance – whether start date of payment is correct – date of actual lodgement of claim form – deemed claim when Department is contacted – whether special circumstances made earlier lodgement not reasonably practicable – whether the cancellation or suspension decision was under review – date of effect provisions – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Thomas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 868
Beadle and Director General of Social Security (1984) 6 ALD 1

Groth v Secretary Department of Social Security [1995] FCA 1708

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Senior Member B J Illingworth

18 December 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Epiq.  Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Associate

Dated: 18 December 2018

Date of hearing:	22 November 2018
Advocate for the Applicant:	Oliver Morris
Solicitors for the Applicant:	Department of Human Services
Respondent:	No appearance

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH      [10.12 am]

1. SENIOR MEMBER:  This is an application by the Secretary, Department of Social Services (“the applicant”), to review a decision of the Social Services and Child Support Division (“the AAT1”) dated 7 November 2017, which set aside the decision of an Authorised Review Officer (“the ARO”) that the respondent’s NewStart Allowance (“NSA”) payments commenced from 10 July 2017, and substituted a decision that Centrelink erred in cancelling the respondent’s NSA and that the NSA should have been suspended, rather than cancelled on 2 May 2017, and it should have been restored as soon as the respondent again became qualified and payable.

2. The applicant was represented by Mr Morris of counsel.  The respondent had been previously represented by her father.  Both the respondent and her father subsequently advised the Tribunal that neither wished to take part in, or be heard on the application, and both declined to file and serve a statement of facts, issues, and contentions, or a personal statement, or a statement of any other witness.  The reason the respondent did not wish to take part in the proceeding was at least in part because she was unwell.  On 20 November 2018, two days prior to this hearing, the Tribunal again contacted the respondent, who confirmed her wish not to take part in the proceedings. 

3. The respondent was given the further opportunity to make an application to adjourn the proceedings to enable her to participate when her health permitted, but no application was pursued by the respondent, nor her father.  The Tribunal is satisfied that the respondent and her father were aware of the proceedings, the fact of the hearing, and the respondent has been given the opportunity to have an adjournment application heard if she wished.  The Tribunal is also satisfied that the respondent has made a conscious and informed decision not to take part in the proceedings.  The Tribunal has decided to proceed in the absence of the respondent, or her representatives. 

4. I turn to the issues.  The following issues have been raised by the applicant in the SOFICs, namely that: 

   (i)the AAT1 decision was made without jurisdiction because the question of cancellation or suspension of the respondent’s NSA had not been the subject of formal application for internal review or decision by an authorised review officer; 

   (ii)if paragraph 1 is incorrect, the AAT1 erred in finding that suspension was preferable to cancellation;  the only question for determination by the AAT1 was in fact the date from which the NSA payment should be reinstated; and

   (iii)therefore a decision should be substituted in the terms of the decision of the ARO, dated 10 October 2017.

5. I turn to the facts.  The respondent had been the recipient of NSA payments, which had been assessed taking into account she had the care of three infant children.  It became apparent that the respondent’s circumstances had changed, and in particular that she had ceased to have had the care of the three children, all of whom were in the care of their grandfather.  On 4 May 2017, a letter was sent by Centrelink to the respondent advising her of the cancellation of her NSA, on and from 2 May 2017, because her earnings for the past 12 weeks, namely six-fortnight periods, were above the allowable threshold.

6. On 18 May 2017, Centrelink records indicate that the respondent contacted Centrelink in relation to the cancellation.  Centrelink records indicate that it was confirmed the three children were in the care of their grandfather, and that the respondent’s entitlement should have been assessed as a single parent without children.  Further, that the respondent’s earnings exceeded the threshold to receive NSA payments as a single parent without children.  The respondent was advised to lodge a new claim if her income decreased.  The respondent asked for her payments to be, “put back on”, and when told this could not be done the respondent became abusive and terminated the telephone call.

7. On 10 July 2017, the respondent again contacted Centrelink.  Centrelink records indicate that the respondent advised that she was now working 16 hours per fortnight due to a cut in working hours.  Her children remained in the care of their grandfather.  The respondent was advised of her ability to apply for NSA via the online service, and appeal the date of cancellation of NSA. 

8. On 11 and 12 July 2017, the respondent again contacted Centrelink regarding the claim for NSA.  The records of 12 July 2017 indicate that the respondent was advised that NSA was granted from 10 July 2017, and notes the respondent wished to appeal the start date.  The Tribunal infers from those records that the respondent did in fact apply through the online service on 10 July 2017 for NSA, as she had been invited to do.

9. On 7 September 2017, the respondent again contacted Centrelink, which records indicate that she wanted the decision of Centrelink quality checked, and that the respondent said she contacted Centrelink on 2 May 2017, was advised to reclaim NSA, but did not do so until 10 July 2017, and that the respondent wanted payments backdated to the original contact, namely 2 May 2017.  This contact on 7 September 2017, the applicant says, is the request for internal review, which related solely to the date of the commencement of NSA payments.  It is noteworthy that there is no record of discussion about cancellation or suspension of NSA payments on that occasion.

10. On about 15 September 2017, the respondent again contacted Centrelink, which records indicate that she was enquiring about her NSA and her back payments, and when she was advised as to the status of the internal review or appeal being still pending, she became upset, agitated, and terminated the telephone conversation. 

11. I turn now to the question of cancellation or suspension.  On the evidence before the Tribunal, on 18 May 2017 the respondent contacted Centrelink in which it was confirmed that: 

    (i)the respondent did not have the care of her three infant children for six consecutive fortnights;  and

    (ii)the respondent’s income exceeded the threshold for NSA payments, and she was entitled to no allowance. 

12. There is nothing in the evidence that indicates for what period the respondent’s three infant children would continue to reside with their grandfather.  Nor was there evidence demonstrating for what period the respondent’s earnings would exceed or were likely to exceed the threshold salary which precluded her from NSA entitlements as a single parent without children. 

13. The evidence simply establishes that as at 2 May 2017, her earnings for the past six-fortnightly periods were above the threshold, and for that period, her assessment for NSA should have been based on a single parent without children, and in any event her salary exceeded that threshold.  There was no suggestion that such salary arrangement was temporary.  It is for that reason Centrelink informed the respondent of the cancellation of her NSA and invited her to contact Centrelink should there be any decrease in pay, so that her entitlement could be reassessed.

14. It is well settled that in circumstances where there is a guide established to assess the administration of a legislative regime that the Tribunal is not bound by such guide, however the Tribunal should consider the guide in its determination unless there are cogent reasons not to do so.  I particularly refer to Drake v Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634.

15. The guide for cancellation or suspension of NSA payments relevantly reads:

    NSA can be cancelled or suspended if a person no longer qualifies for the payment, or NSA is no longer payable.  The decision maker must consider whether the correct or preferable decision is to cancel or suspend in the particular circumstances of the case.  However, normally suspension may occur for a very short period of time.

16. The guide for NSA overpayments, and NSA casual earning overpayments relevant reads:

    Income earned by NSA recipients from casual employment or self-employment affects the NSA rate payable.  If, as a result of casual earnings, a person received nil payments for six consecutive fortnights, they are no longer considered unemployed from the end of the sixth fortnight, and NSA is cancelled.

17. Were this issue properly before the AAT1, namely the question of suspension or cancellation of the respondent’s entitlements to NSA on and from 2 May 2017, those matters contained in the guide to which I have just referred would need to be considered.  In this matter the respondent had not had the care of her children for the last six fortnights.  Her income also exceeded the threshold for single parent without children NSA benefit, and there was nothing to suggest that this was to occur for a short period of time.  It is understandable that Centrelink advised the respondent to be in contact if there should be a decrease in salary in the future, whenever that may be, if at all.

18. I note at paragraph 18 of the decision of the AAT1 that the respondent made certain submissions to the AAT1, including: 

    (i)her NewStart Allowance should never have been cancelled, but in any event should be backdated to at least 18 May when she contacted Centrelink regarding the cancellation; 

    (ii)she was told to lodge a claim again for NSA when she called on 18 May 2017, and was upset, and asked Centrelink to review the cancellation; 

    (iii)the respondent’s sister took her to Centrelink so that she could lodge a new claim for NSA;  and

    (iv)the respondent maintained that she was eligible for NSA on and from 18 May 2017 when she called due to a reduction in her work hours, but because of her depression she was not able to reapply until July 2017.

19. I also note that at paragraph 19 of the decision of the AAT1 it was not in dispute that the respondent lodged a new claim form for NSA, on 10 July 2017, and Centrelink had commenced paying NSA from that date.  To the extent that the AAT1 considered the question of suspension or cancellation of the NSA, at paragraph 23 the AAT1 says:

    The Administration Act does not contain any direct guidance as to the choice, and neither, as far as I can see, does the guide to the social security law.

20. It is apparent, therefore, that those guides to which I have referred earlier were never considered by the AAT1, and should have been.  It is also apparent, when considering the submissions made by the respondent to the AAT1, that upon reviewing the Centrelink records that I have referred to earlier, that regardless of what view the respondent had with respect to the cancellation or suspension of the NSA, that was never the subject of an application for internal review. Having made a fresh application for NSA, and having been granted a start date of 10 July 2017, it was that start date that was the subject of the application for internal review, and is the decision that was before the AAT1.

21. Insofar as there has been any discussion about cancellation or suspension as between the respondent and Centrelink, that was nothing more than anecdotal conversation in a telephone communication between them, well before the application for internal review was made.  Indeed, upon reading the decision of the ARO, it is plain that the only decision which was being considered was whether the start date of the NSA of 10 July 2017 was correct, not the cancellation or suspension of NSA.  To the extent that the cancellation of NSA was mentioned by the ARO, that was only to put in context the sequence of events that led to the fresh application for NSA, and the start date of payments.

22. The Tribunal finds that there was no application for internal review of the cancellation or suspension of NSA payments being made by the applicant. Albeit she was advised of her right to appeal the cancellation in a telephone conversation of 10 July 2017, that was not the subject of the application for internal review finally made to Centrelink nearly a month later, and on 7 September 2017. The only decision the subject of internal review application was the question of the start date of the NSA. The AAT1 therefore purported to review a decision that was not a decision of the ARO pursuant to section 141(1)(a) of the Social Security (Administration) Act 1999 (“the Administration Act”), and accordingly the decision of the AAT1 should be set aside.

23. I turn to consider the question of the correct start date.  By letter dated 4 May 2017, the respondent was advised of the cancellation of her NSA.  Her next communication with Centrelink was on 18 May 2017.  She was told that she could reapply for NSA, and to advise the applicant when her income decreased.  However, it was not until 10 July 2017 that the respondent advised the applicant of the reduction in working hours which the Tribunal infers enlivened an entitlement to NSA.  The respondent was advised to apply online.  Her NSA payments commenced on and from 10 July 2017.

24. It is helpful if I return to the ARO’s decision of 10 October 2017, and the various headings starting “Law and Policy”, and the ARO’s summary that appears at the bottom of page 16 through to page 17. Under heading “Law and Policy”, the ARO said:

    I have applied the following:

    Section 11 and 16 of the Social Security (Administration) Act 1999. Together these sections specify that for a payment to be granted the person must lodge a written claim or make a claim in the manner determined by the Secretary, e.g. an online claim.

    Section 13 of the same Act says that a claim can be taken to have been made on the day on which the Department was contacted if, on the date of the contact the person was qualified for the payment and the person has given written acknowledgement of the contact, and the written claim is lodged within 14 days after the date of contact.

    Section 13 also allows for the time limit on lodging the claim to be extended to 13 weeks if the person had a medical condition that prevented them lodging the claim, or there were special circumstances that prevented the person lodging the claim.

    Clause 3, part 2, schedule 2 of the same Act, this says that a person’s start date in relation to payment is the day on which the claim is made.  To access the applied legislation please go to legislation.gov.au, government policy referred to in this letter can be found at guides.dss.gov.au.  You can also ask us for a copy of the relevant law or policy.

25. Under heaving “Evidence” the ARO took into account the following information:

    The claim for NewStart Allowance, the record of your contacts about claiming the payment, computer records maintained by the Department.

26. The ARO made the following findings of fact:

    After careful consideration I have made these key findings: you contacted the Department about claiming NewStart Allowance on 18 May 2017 and 10 July 2017.  On 10 July you lodged a claim for NewStart Allowance, the start date is 10 July 2017. 

27. Under heading “Reasons for the decision” the ARO said this:

    Your claim was lodged on 10 July 2017.  Our records show that you made contact with the Department about your payments on 18 May 2017, and 10 July 2017.  I consider that your contact at this time expressed an intention to claim NewStart Allowance.  The earliest your claim can be taken to have been made is 10 July 2017, as you have not lodged a claim within 14 days of your contact on 18 May 2017.  Therefore your claim is taken to have been made on 10 July 2017, and this is your start date.  Your NewStart Allowance was cancelled from 2 May 2017, due to your earnings precluding payment for six consecutive fortnights. 

    The policy guidelines state that NewStart Allowance cannot be restored for this type of cancellation.  A person must lodge a new claim.  Claim lodgement can be extended up to 13 weeks if a person had a medical condition that prevented them from lodging their claim, or there were special circumstances that prevented the person lodging the claim.  I acknowledge that you have had some personal issues, and that you suffer from depression, for which you are receiving treatment.  However, I am unable to backdate your claim for NewStart Allowance as you have not lodged an online claim within 14 days of your first contact date on 18 May 2017.

28. I generally agree with the contents of the decision of the ARO to which I have just referred, however I have given further consideration to section 13 of the Administration Act in considering whether the respondent is deemed to have made a claim for the purposes of determining the start date allowance for her NSA payments. Section 13(1) of the Administration Act creates a scheme whereby if an applicant contacts the Department, and within 14 days of that contact lodges a claim, then the claim is taken to have been made on the date of contact. Section 13(2) of the Administration Act provides a variation in that scheme, where a person who was suffering from a medical condition, and that medical condition had a significant adverse effect on the person’s ability to lodge a claim such that if lodged no more than 13 weeks from the contact date, then the claim is taken to have been made on the contact date. Section 13(3A) also has a similar provisions to section 13(2) of the Administration Act, in circumstances where it was not reasonably practicable for the claim to be lodged.

1. The respondent has referred, in her written submissions to the AAT1, to her personal issues.  At paragraph 18 of the decision of the AAT1 it is said she was dealing with many stressful things at the time, including a stalker, a separation, a settlement with her ex-partner, trying to pay mortgage, while also trying to sell the property as she cannot afford it, as well as dealing with a reduction in work hours.  She was told to lodge a claim for NSA when she called on 18 May 2017, but she was very upset at the time, and said she asked Centrelink to review the cancellation.  She was also suffering from depression.  It was not until her sister physically took her into Centrelink that she could lodge a new claim form.  Her sister was not able to take her in earlier due to her own commitments.

2. Section 13(1) of the Administration Act does not apply in the circumstances of this matter because the respondent’s contact on 18 May was more than 14 days prior to the lodgement of the claim on 10 July 2017. The claim form was lodged within 13 weeks, and hence the question is whether the respondent’s medical condition had a significant adverse effect on the respondent’s ability to lodge the claim earlier, or whether special circumstances meant that it was not reasonably practicable for the respondent to lodge her claim earlier.

3. The respondent said to the AAT1 that she was suffering from depression, and no doubt that will have had some impact on the respondent.  However, there is no medical evidence to corroborate that she was in fact suffering depression, nor is there any evidence from the respondent corroborated by a medical practitioner of the impact that that illness had upon her such that it could be said it had an adverse impact on her ability to lodge the claim.  The whole of this evidence, on this topic, before this Tribunal, is wholly unsatisfactory and the Tribunal is unable to accept that the respondent suffered a medical condition, or accept the nature and extent of that condition’s impact upon the respondent.

4. The term “special circumstances” is not a term capable of precise definition.  It is usually considered that the term means something out of the ordinary and unusual.  I have taken into account the decisions of Beagle v Director General of Social Security (1984) 6 ALD 1, in particular at page 3, and Groth v Secretary, Department of Social Security [1995] FCA 1708, paragraph 12. In Thomas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 868, Senior Member Isenberg adopted Gaudron J’s analysis in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 of what is meant by “reasonably impracticable”, and that it could be taken to mean, in this analysis, the following:

   Three general propositions are to be discerned from the decided cases: the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”; what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time; to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

5. The personal circumstances from which the respondent was suffering as referred to earlier, though difficult, are circumstances that are best described as the normal vicissitudes of life. They are no doubt difficult and distressing to deal with, but absent of any further evidence, there are no special circumstances arising in this matter. There is no evidence that such circumstances rendered it impracticable for the respondent to lodge her claim. Given those matters, section 13(2) and (3A) have no work to do in this matter, and I find that the correct start date was 10 July 2017.

6. Accordingly, the Tribunal orders that: 

   (i)The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 7 November 2017 be set aside; and

   (ii)In substitution the decision of the Authorised Review Officer dated 10 October 2017 be reinstated, namely that the start date of the Respondent’s New Start Allowance of 10 July 2017 was the correct and preferable decision

   END OF ORAL DECISION  [10.45 am]