Shaun Hosking and Secretary, Department Of Education, Employment And Workplace Relations

[2013] AATA 596

[2013] AATA 596

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1535
Re	Shaun Hosking
APPLICANT
And	Secretary, Department Of Education, Employment And Workplace Relations
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	23 August 2013
Place	Brisbane

The Tribunal affirms the decision under review.

……………[Sgd]…………………………………….

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Newstart Allowance – Method of payment – Power of SSAT to review decisions relating to the method of payment of a social security benefit – Effect of restriction on SSAT exercising powers and discretions of Secretary –Powers of AAT on review – Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Social Security Act 1991 (Cth) ss 593, 595

Social Security (Administration) Act 1999 (Cth) ss 55, 68, 81, 95, 178, 179, 192

CASES

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Walker v Secretary, Department of Social Security (No 2) (1997) 75 FCR 493

Watson and Secretary, Department of Family and Community Services [2003] AATA 599

SECONDARY MATERIALS

Guide to Social Security Law, Para 8.4.1.10

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

23 August 2013

INTRODUCTION

1. On 17 January 2013, Centrelink made a decision to suspend the payment of Newstart Allowance to Mr Shaun Hosking (“the applicant”). This decision was made because of the failure of the applicant to provide bank account details for payment. I have to consider whether a direction should have been made to make payment of Newstart Allowance to the applicant by cheque, electronic transfer card or otherwise.

   BACKGROUND

2. On 28 December 2012, when the applicant made a claim for Newstart Allowance he was asked to provide his bank account details. On 28 December 2012, Centrelink also sent a request for information to the applicant, asking him to provide his bank account details by 11 January 2013; otherwise the payment of Newstart Allowance to him may stop. The applicant did not provide his bank account details. On 17 January 2013, the payment of Newstart Allowance to the applicant was suspended pending enquiries about his entitlement.

3. On 23 January 2013, the applicant sought review of the decision to suspend his

   
   

   Newstart Allowance, seeking exemption from the requirement to provide bank account details. On 8 February 2013, the applicant advised Centrelink that he would not open a bank account due to his religious convictions and indicated that he would accept payment by cheque. On 23 January 2013, the applicant advised Centrelink that he was not appealing against the suspension of his Newstart Allowance, but sought an exemption from needing a bank account. A search of the records disclosed that the applicant had a bank account until the middle of 2011. On 11 February 2013, the decision to suspend payment to the applicant was affirmed by an Authorised Review Officer.

4. On 20 February 2013, the applicant sought review of the decision by the

   
   

   Social Security Appeals Tribunal (“the SSAT”). On 18 March 2013, the applicant signed an authority which authorised Centrelink to make payment of his Newstart Allowance to the bank account of a nominee, in this case an agent for the landlord of the premises from which he conducts a business.[1]

   [1] Exhibit C.

5. On 21 March 2013, Centrelink restored the payment of Newstart Allowance and payments commenced to be paid to the bank account of that payment nominee. Payment of $1,970.40, relating to the period 10 January 2013 to 6 March 2013 was made to that payment nominee.

6. On 8 March 2013, the SSAT ruled that it did not have jurisdiction to alter a decision made by the Secretary as to the method by which a person is to be paid.

   ISSUES, LEGISLATION AND SUBMISSIONS

7. The legislation that I am required to apply in determining this application is the

   
   Social Security (Administration) Act 1999

   (Cth) (“the Act”).

8. Section 55 of the Act provides that social security payments are to be made to a bank account nominated and maintained by a claimant, unless a direction is made otherwise under s 55(4) or a nominee arrangement is entered into.

9. The respondent contends that the notice issued to the applicant on 28 December 2012 was properly issued under s 192 of the Act and that the payment of Newstart Allowance was correctly suspended under s 81(1)(a)(ii) of the Act because of his failure to comply with the notice of 28 December 2012. The respondent further contends that even if the payment of Newstart Allowance to the applicant had not been suspended on

   
   

   17 January 2013, his payment would have in any event automatically ceased to be payable from 24 January 2013 pursuant to s 55(5) of the Act as the 28 day period permitted under that section for providing a bank account expired on that date.

10. While the respondent acknowledges that this Tribunal has jurisdiction to review the decision to suspend the payment of Newstart Allowance, the respondent contends that this Tribunal is limited in its power to direct the respondent to make payments to the applicant in a particular fashion. The respondent relies upon s 151 of the Act which provides:

    Powers of the SSAT

    (1)  Subject to subsection (2), the SSAT may, for the purpose of reviewing a decision under the social security law, exercise all the powers and discretions that are conferred by the social security law on the Secretary.

    (2)  The reference in subsection (1) to powers and discretions conferred by the social security law does not include a reference to a power or discretion conferred by:

    (a)  a provision dealing with the form and place of lodgment of a claim; or

    (b) a provision dealing with the manner of payment of a social security

    payment; or ...

    The respondent submitted that the effect of s 151 of the Act is that while the SSAT may review decisions relating to the manner of payment and determine whether there has been any legal error in the decision, that Tribunal does not have the power to substitute its own decision in place of that made by the Secretary. The respondent submitted that this Tribunal is also limited in its powers relating to decisions regarding manner of payment and is not able to substitute its own decision in place of that made by the Secretary.

    CONSIDERATION

11. A preliminary matter that I have to review is whether this Tribunal is limited in its powers relating to decisions regarding manner of payment.

12. The jurisdiction of this Tribunal to review decisions under social security law is conferred by ss 178 and 179 of the Act. In Walker v Secretary, Department of Social Security(No 2) (1997) 75 FCR 493 at 506 Drummond and Mansfield JJ ruled that while ordinarily under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) this Tribunal can conduct a full merits review of its own, s 1283 of the Social Security Act 1991 (Cth) as it was then limited the authority of this Tribunal to review decisions of the Secretary as dealt with by the SSAT. In my opinion s 179 of the Act corresponds to the former

    
    

    s 1283 of the Social Security Act 1991 (Cth). I accordingly consider that I am bound by a judgement of the Federal Court of Australia to rule that I cannot conduct a full merits review of the decision regarding manner of payment. I should add that

    
    

    s 151 of the Act does not of itself deprive this Tribunal of jurisdiction to conduct a full merits review, that provision only extends to the SSAT and not this Tribunal.

13. My preliminary ruling does not mean that this Tribunal is totally devoid of function in considering this application. In Walker v Secretary, Department of Social Security (No 2) (1997) 75 FCR 493 at 506 Drummond and Mansfield JJ ruled that this Tribunal was confined to determining whether the decision dealt with by the SSAT was erroneous in fact or law. In Watson and Secretary, Department of Family and Community Services [2003] AATA 599; (2003) 74 ALD 523 this Tribunal also recognised that non-binding recommendations could be made without infringing the prohibition upon the Tribunal exercising the powers and discretions of the decision-maker. In that case it was recognised that a decision can be set aside where there has been a denial of natural justice or there has been an inappropriate exercise of a power.

14. I therefore consider that I am free to consider whether there was any legal or factual error made by the respondent in requiring the applicant to provide his bank account details. There is no issue that if there is legal or factual error, then this Tribunal can set aside the decision and remit it back to the respondent for reconsideration with or without non‑binding recommendations.

15. In considering this application I have had regard to policy as laid down in Para 8.4.1.10 of the Guide to Social Security Law which refers to the circumstances in which exemptions from direct credit can be granted:

    Exemptions from payment by direct credit

    Delegates of the Secretary have the discretion to grant customers temporary or permanent exemptions from payment by direct credit at any time. They are paid by cheque in accordance with a direction made under SS(Admin)Act subsection 55(4).

    Examples: A permanent exemption from payment by direct credit may be granted when a customer:

    ·lives in a remote or isolated area (1.1.R.150), OR

    ·is aged, frail or disabled and unable to get access to their account, OR

    ·is deprived of payment due to a legal or administrative problem, OR

    ·does not operate an account for religious or cultural beliefs.

    The Secretary has also granted a permanent exemption from payment by direct credit to customers who reside long term overseas in countries where direct deposit facilities are not available.

    Examples: A temporary exemption from payment by direct credit may be granted when a customer:

    ·is temporarily disabled or staying in a remote or isolated area and unable to get access to their account, OR

    ·requires a payment and this cannot be done in time through the direct credit system, OR

    ·has just been granted payment but does not yet have an account. In this case, the customer has 28 days to provide direct credit details. If the customer has not done so within 28 days, their payment ceases to be payable unless another exemption applies.

    If a customer's circumstances change, the reasons for direct credit exemption may need to be reconsidered.

16. The respondent accepts that this Tribunal is not bound to apply policy guidelines, but will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so.[2] In this case there are no cogent reasons in my view for a departure from policy.

    [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

17. The applicant has not been consistent in his reasons why he should not receive a direct credit payment.

18. It is difficult to accept that the applicant has an “ideological opposition” to the banking system, when he has had a bank account in the past and has signed an authority for his Newstart Allowance to be paid into the bank account of the agent for his landlord. However, before the SSAT the applicant maintained that for 20 years he has had an ideological opposition to the banking system. The applicant has suggested that he could be paid by an electronic benefit card or by cheque rather than direct credit. However, the use of an electronic benefit card or a cheque necessitates that withdrawals are made from a bank facility. The applicant has not explored having an account with a credit union despite his involvement in a cooperative. The applicant confirmed to me that he has not requested that his Newstart Allowance be paid in cash.

19. I cannot give any weight to the assertion of the applicant that he cannot be paid his Newstart Allowance because of religious convictions. On 8 February 2013, the applicant advised Centrelink that he would not open a bank account due to his religious convictions. However, when I asked the applicant about those religious convictions,

    
    

    he abandoned any reliance on them.

20. The applicant contended that he had a right to receive his payment other than by direct credit to a bank account. In my view the social security law does not give him any such right. The tenor of the final submission of the applicant before this Tribunal was that he does not have to give a reason why he should be paid by a method other than direct credit. However in my view the Secretary would need to have some justification before a direction is made under s 55(4) of the Act for payment by a method other than direct credit, as such a direction would mean that the Department would incur additional expense. In my view the applicant has not provided any cogent reason why the Secretary should make such a direction under s 55(4) of the Act.

21. I accept that there would be additional effort and expense incurred by the Commonwealth in issuing cheques to the applicant each fortnight and in converting cheque payments into electronic benefit cards. During the hearing this Tribunal was informed that if an electronic benefit card is lost it can be readily cashed by a finder. There is also the potential for cheque payments to go astray and additional expense would be incurred if such cheques need to be replaced.

22. For the sake of completeness I should say that I have reviewed the evidence before me and that evidence does not indicate that there has been any error of fact, a denial of natural justice or an inappropriate exercise of a power. I consider that the decision to suspend payment was correctly made under s 95 of the Act (rather than s 81 of the Act which does not apply to Newstart Allowance), as the applicant failed to comply with a notice under s 68(2) of the Act requiring him to give the Department a statement about a matter that might affect the payment of a Social Security benefit.

23. It is fair to say that on a number of occasions before this Tribunal the applicant took exception to the letter of 17 January 2013 from Centrelink in which he was advised: “Your Newstart Allowance has been suspended pending enquiries about your entitlement”.[3] However, this letter was not inappropriate having regard to the involvement of the applicant in a business, which raises the issue of whether the applicant could be regarded as ‘unemployed’ or treated as ‘unemployed’.[4]

    [3] Exhibit A, T-Document 10, p. 30.

    [4] Social Security Act 1991 (Cth) ss 593 and 595.

    DECISION

24. The decision under review is affirmed.

I certify that the preceding 24
(twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

………………[Sgd]…………………………………

Associate

Dated 23 August 2013

Date of hearing	22 July 2013
Applicant	In person
Advocate for the Respondent	Mr Rick McQuinlan, Departmental Advocate