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

Shore and Secretary, Department of Social Services (Social services second review) [2019] AATA 4004 (1 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7669
Re:Daniel Shore
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:1 October 2019
Place:Melbourne

The Tribunal affirms the decision under review.
.....[sgd]...............................................................
Member K. Parker
Catchwords
SOCIAL SECURITY BENEFITS – claim for newstart allowance – determination of “start date” – deemed claim – no jurisdiction to review previous cancellation decision – cancellation decision was the subject of an earlier application for review which was dismissed due to non-attendance by the Applicant – no application made by the Applicant for reinstatement of the earlier application – decision under review in relation to “start date” of new claim for newstart allowance affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
Member K. Parker
1 October 2019
BACKGROUND TO THIS APPLICATION FOR REVIEW

The Applicant, Mr Daniel Shore, has been a long-term recipient of the newstart allowance (NSA) for the last 20 years. A person’s entitlement to be paid the NSA is governed by the Social Security Act 1991 (Cth) (the Act), in conjunction with the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
This application is about whether Mr Daniel Shore is entitled to receive back payment of NSA for a discrete period between 26 April 2016 and 27 March 2017 (Claim Period) during which he did not receive NSA payments.
The Secretary, Department of Social Services (Secretary) lodged two sets of documents with the Tribunal on about 3 January 2019 and 1 March 2019. The Tribunal will refer to them collectively as the T-Documents. Mr Shore considered that the Secretary had not fully complied with ss 37 and 38 of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act) in relation to the production of documents relevant to the decision under review. The Tribunal considered Mr Shore’s submissions in relation to this issue but was not satisfied that there was any reason to suspect that relevant documents were missing from the sets of documents that had been produced by the Secretary’s representatives. On this basis, the Tribunal was not prepared to make any directions for the filing of additional documentation by the Secretary, and considered that it had before it a full complement of documents which enabled this Tribunal to determine the issues arising in this application.
The rather complex background to the non-payment of the NSA to Mr Shore over the Claim Period is set out below.
First Cancellation Decision
On 5 February 2016 Centrelink, the Commonwealth agency responsible for administering NSA payments, sent a letter to Mr Shore to notify him that his NSA was cancelled as from 7 January 2016 (First Cancellation Decision), on the basis that he had not attended an appointment with MAX Employment, Footscray; failed to “re-engage” within the following 28 days and therefore, he was no longer qualified to receive the NSA because he did not satisfy the relevant “activity test”.
The Tribunal notes that s 593 of the Act provides that a person is qualified to receive the NSA if they are unemployed, satisfy the “activity test” (as set out in s 601 of the Act), and they are prepared to enter into an Employment Pathway Plan and comply with its terms. Section 42SA of the Administration Act provides that participation payments are not payable when a person fails to attend an appointment they are required to attend by an Employment Pathway Plan or under s 63(2) of the Administration Act.
On 31 March 2016, an authorised review officer (ARO) of the Department of Human Services (Department) affirmed the First Cancellation Decision.[1]
[1] Refer T-Documents T4.
On 21 April 2016, Mr Shore lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) of the ARO’s decision to affirm the First Cancellation Decision.[2]
[2] Refer T-Documents T6.
On 7 December 2016, the AAT2 (constituted by Member Ermert) reviewed the AAT1’s decision to affirm the ARO’s decision in relation to the First Cancellation Notice, and decided to affirm it on the basis of a finding that Mr Shore did not satisfy the “activity test” and he was not exempt from satisfying the requirements of that test.[3]
[3] Refer T-Documents T18.
Second Cancellation Decision
On 2 May 2016, Centrelink sent a further letter to Mr Shore to notify him that his NSA payments would stop (or be suspended) because he had missed an appointment with his employment services provider again on 29 April 2016, and did not contact the provider with a suitable reason as to why he did not attend.[4]
[4] Refer T-Documents T9.
On 30 May 2016, Centrelink sent a letter to Mr Shore to notify him that his NSA payments had been cancelled as from 30 April 2016 (Second Cancellation Decision).
On 16 June 2016, the AAT1 made a decision affirming the ARO’s decision to affirm the First Cancellation Decision. The AAT1’s decision was sent to Mr Shore on 27 June 2016.[5] Mr Shore sought review of the AAT’s decision by the General Division of the AAT (AAT2).
[5] Refer T-Documents T11.
The Tribunal notes that it appears that:[6]
(a)on 15 July 2016 Mr Shore contacted Centrelink to state that he wished to “appeal the decision and report the fraud”;
(b)on 28 July 2016 Mr Shore sent an email to Centrelink and others to record his dissatisfaction with his attempts to discuss the matter with Centrelink and requesting, “please restore my payments and backpay ASAP”.
[6] Refer T-Documents T12/49.
A general manager from the Department (GM) replied to Mr Shore the following day to advise him that he had referred Mr Shore’s email to the relevant expert area in the Department; his situation would be investigated; and a staff member would be in contact with Mr Shore.[7]
[7] Refer T-Documents T12/50.
On 9 August 2016 Mr Shore wrote to the Minister for Housing and his local MP to raise the issue of cessation of his NSA payments and copied in the GM.
On 26 August 2016 Centrelink sent Mr Shore copies of letters explaining why his NSA was cancelled on 7 January 2016 and 30 April 2016, as per Mr Shore’s request.[8]
[8] Refer T-Documents T13.
The Tribunal notes that on 26 September 2016 Mr Shore wrote a further letter to the GM and others to seek certain information and to state that he was still waiting for his NSA payments.[9] On the same day, a letter was sent by Centrelink to Mr Shore entitled, “Your intention to claim”. This letter stated, “We confirm that Centrelink was contacted on 23 September 2016 about your intention to claim a payment… We have also been contacted on the following date/s. 26 September 2016”.[10]
[9] Refer T-Documents T14.
[10] Refer T-Documents T15.
On 28 September 2016, an ARO of the Department made a decision to affirm the Second Cancellation Decision.[11] The ARO recorded in the “ARO notes” that she would treat Mr Shore’s email to the GM and others on 28 July 2016 as the date of request of review, and that this was within 13 weeks of the date he would have received notice of the Second Cancellation Decision on 30 May 2016.[12] The ARO recorded that Mr Shore mentioned that he had contacted Centrelink by phone on 15 July 2016. In the ARO’s notice of this decision dated 28 September 2016, the ARO made the following statement (emphasis added):[13]
The decisions to suspend then cancel your Newstart Allowance from 30 April 2016 were correct. Despite your contacts of 15 July 2016 and 28 July 2016 within 13 weeks of the cancellation decision, I am unable to make a favourable determination so your payment cannot be reinstated. If you are in need of income support, you are required to reclaim.
[11] Refer T-Documents T16/60 and T17.
[12] Refer T-Documents T16/61.
[13] Refer T-Documents T17/65.
Mr Shore lodged a new written claim for the NSA on 22 May 2017
On 20 April 2017, a hearing took place at the AAT1 in relation to an application for review lodged by Mr Shore (No. 2016/M105035). There was no appearance by Mr Shore and did not contact the Tribunal about his non-attendance. The AAT1 dismissed this application on 20 April 2017.[14]
[14] Refer T-Documents T21.
On 22 May 2017, Centrelink sent a letter to Mr Shore to confirm his intention to claim NSA.[15] This letter stated that Centrelink was contacted on 22 May 2017 about Mr Shore’s intention to claim NSA and this date would be used as the day on which his claim was made, provided Mr Shore finalised his claim by 5 June 2017.
[15] Refer T-Documents T24.
On 22 May 2017, Mr Shore completed and signed a Centrelink “Customer Declaration Form – Newstart Allowance”. There were some handwritten changes or markings on the form which appeared to be entered by Mr Shore before he signed it. It referred to his latest contact with Centrelink as being 22 May 2017. Mr Shore has added that this initial contact with Centrelink was on “27 March” and then he stated, “Still earlier date(s) I made contact w/ DHS, Tudge Office & Centrelink but told it was too far back to get re-instatement of payment”.[16] On the same day (22 May 2017), Mr Shore submitted a further letter to Centrelink stating that on 27 March 2017 he had visited Centrelink Footscray and tried to get his NSA reinstated. In this letter, Mr Shore insisted that his payments be re-instated from that day.[17]
[16] Refer T-Documents T22/85.
[17] Refer T-Documents T23/89.
First Reinstatement Decision
On 22 May 2017 Centrelink wrote to Mr Shore to advise that his claim for the NSA had been accepted and that he would receive an “immediate payment” of the NSA for the period “4 May 2017 to 17 May 2017” which was “due on 23 May 2017” (First Reinstatement Decision).[18]
[18] Refer T-Documents T25.
On 5 April 2018, Mr Shore wrote a letter to Centrelink to advise of his intention to claim NSA that day and to follow up on the “complaint” and “appeal” he gave to Centrelink on 22 May 2017.[19] He requested that this be “looked into” “as soon as possible”.[20]
[19] Refer T-Documents T27.
[20] Refer T-Documents T27.
The Tribunal notes a complaint record created by the Department on 16 April 2018 which contained the following notes:[21]
Outcome sought
Claimant wanted to have his appeal from the 22 May 17 assessed as previous it had been lost in the system or else.
Action Taken/Response Provided
Customer Relations Unit (CRU) officer listened to situation and lodged an appeal to have the previous appeal reviewed. The appeal that was lodged is as follows:
…
CRU officer confirmed that it was impossible for the claim to be re-instated from the 30 APR 16. The reason is that the claim was cancelled because the Claimant did not re-engage at the time. The Claimant then sought out appeals internally and with the Administrative Appeals Tribunal. The Administrative Appeal (AAT) request was ultimately dismissed on the 20 APR 2017.
[21] Refer T-Documents T28.
This note states that Mr Shore claimed that he was not told by Centrelink during his visit on 27 March 2017 that he was required to lodge a new claim. The notes of the Centrelink staff member however indicate that Mr Shore was advised that he could re-claim for payment.
This note then records:
The Claimant explains that he was not advised to lodge a new claim until 22 MAY 17 and a new claim was lodged on the same day. Ultimately the Claimant wants to claim back payment from the 27 MAR 17 – 3 MAY. As he states he was not given the correct information, had a terrible experience and the Staff Member only wrote the statements on the file to cover herself and her terrible customer service.
Third Cancellation Decision
On 16 November 2017, Mr Shore’s NSA was cancelled again (Third Cancellation Decision).[22]
[22] Refer T-Documents T28/99.
A new claim for NSA was lodged on 13 April 2018.[23] A note dated 30 April 2018 records that this claim was rejected apparently because Mr Shore had refused to provide bank statements that Centrelink requested. Centrelink notes stated that Mr Shore was advised that he had 13 weeks from 28 April 2018 to provide them or he would be required to submit another claim. The notes stated that Mr Shore contacted Centrelink on 2 May 2018 and provided them. He also requested that his complaint be re-assessed. Mr Shore called Centrelink again on 9 May 2018 to escalate his complaint.[24]
[23] Refer T-Documents T28/99.
[24] Refer T-Documents T28/101.
Second Reinstatement Decision
Centrelink records indicate that on 10 May 2018 it granted the NSA to Mr Shore under s 593 of the Act and that Ms Shore was advised of this decision (Second Reinstatement Decision). It is recorded that Mr Shore did not agree with the date from which the claim was granted and requested an explanation. Mr Shore called Centrelink again on 16 May 2018 to request information about the “backdating of his claim”. Mr Shore was advised that his request had not been finalised and it could take some time.[25]
[25] Refer T-Documents T28/101 and T33/148.
Continued complaints by Mr Shore about First and Second Reinstatement Decisions
Centrelink records indicate that Mr Shore contacted it again on 14 June 2018 to lodge a complaint about the time taken to process the two “appeals/review” about the start date for his NSA (relating to the claims in March 2017 and May 2018). Mr Shore was informed that reviews of those decisions had been “set up” and were “pending assessment”.[26]
[26] Refer T-Documents T28.
Centrelink records indicate that on 19 June 2018 the “ORD” waiting period was waived (as Mr Shore had limited savings in his bank account) and he was paid (in arrears) of $217. The notes stated that Mr Shore was eligible for payment from 13 April 2018.
Centrelink records indicate that on 20 June 2018 it had been identified by Centrelink that Mr Shore had applied for a review by AAT1 of the cancellation decision, and this application was dismissed due to failure by Mr Shore to appear at the scheduled hearing. The notes indicate that Mr Shore told Centrelink (on 16 April 2018) that he was not aware that he was meant to attend the hearing and that he “no longer disputed that issue”. Mr Shore said the “new issue” was that he attended Centrelink on 27 March 2017 and was not advised to lodge a new claim.[27]
[27] Refer T-Documents T28/106.
Centrelink records indicate that on 13 July 2018 a review was conducted and the original decision to grant the NSA to Mr Shore from 4 May 2017 was considered to be correct. The notes record as follows:[28]
Customer cannot be paid from 27/03/2017 as there was no claim lodged within 14 days of this contact date and customer made no contacts to Centrelink regarding lodgement of claim until May 2017. Customer has also appealed this decision outside of 13 weeks of determination date.
…Letter has been sent to customer advising that review has been sent to ARO who will contact them.
[28] Refer T-Documents T28/106.
On 17 July 2018 an ARO wrote to Mr Shore to advise that she had reviewed the First Reinstatement Decision and had decided to change it in favour of Mr Shore. The ARO found that:[29]
(a)Mr Shore had contacted “the department” on 27 March 2017 regarding his NSA entitlement;
(b)as there were special circumstances surrounding his case, the usual 14 day lodgement period was able to be extended which meant his NSA entitlement was able to assessed from 27 March 2017; and
(c)Mr Shore would receive a back payment of NSA for the period 27 March 2017 to 3 May 2017.[30]
[29] Refer T-Documents T30/111.
[30] As confirmed in T-Documents T31 being a payment advice from Centrelink to Dr Shore.
Mr Shore sought review of the ARO’s decision referred to in the above paragraph to the AAT1. A hearing was held on 4 December 2018 and on the same day the AAT1 decided to affirm the ARO’s decision (decision under review).[31]
[31] Refer T-Documents T2/4-6.
Change to Second Reinstatement Decision
Mr Shore contacted Centrelink again on 4 September 2018 about the Second Reinstatement Decision. He claimed that it should have been backdated from 5 April 2018, which is when he said he informed Centrelink of his intention to claim NSA, instead of 13 April 2018.
A Centrelink record with a receipt date of 4 September 2018 notes that Mr Shore advised that he uploaded his “intent to lodge claim NSA” online as the phone line to “dhs” was engaged on 5 April 2018.[32] This issue was resolved as between the parties when Centrelink made a further decision on 4 September 2018 which was recorded as follows (Change to Second Reinstatement Decision):[33]
Decision to grant NSA from the 13.04.18 has been set aside and NSA granted from the 05.04.18. Customer uploaded an intent to claim letter on the 05.04.18 and all requested documentation was lodged within 14 days of this date.
[32] Refer T-Documents T33/134.
[33] Ibid.
Applications for review by this Tribunal regarding the First Reinstatement Decision
On 6 September 2018, Mr Shore made an application to the AAT1 to review the ARO’s decision in relation to the First Reinstatement Decision backdating his NSA from 27 March 2017. Mr Shore claimed that it should be backdated to 29 April 2016, the date that Centrelink previously cancelled his payments.[34]
[34] Refer T-Documents T32.
On 4 December 2018, the AAT1 affirmed the ARO’s decision in relation to the First Reinstatement Decision, being AAT1 review numbered 2018/M127997 (Reviewable Decision).
On 28 December 2018, Mr Shore lodged an application seeking review of the Reviewable Decision by this Tribunal. A hearing took place on 18 April 2019 and Mr Shore was self-represented.
CONSIDERATION
In considering this application, this Tribunal has taken into account the written submissions lodged by parties, including Mr Shore’s closing submissions emailed to the Tribunal after the hearing on 9 May 2019 and its various attachments.
As explained to Mr Shore at the hearing, the Tribunal’s jurisdiction and powers are not at large when it is undertaking a review. This meant that the Tribunal is confined to reviewing only the decision under review as referred to in paragraph [35] which was before it in the present application.
The present application before this Tribunal relates only to the First Reinstatement Decision and in particular, requires a determination to be made as to the relevant “start date” upon which Mr Shore’s NSA payments should commence. There are some prescriptive laws that apply to making this determination which the Tribunal will return to shortly.
In relation to the Second Cancellation Decision, the Tribunal reiterates the observations made by the AAT1 in its decision dated 4 December 2018 explaining to Mr Shore that he is at liberty to make an application for reinstatement of the previous AAT2 review application which was dismissed, if he wishes to pursue a substantive review of the Second Cancellation Decision. This Tribunal’s jurisdiction does not extend to this decision, namely, whether Mr Shore’s NSA should have ceased as from 26 April 2019. That decision may only be reviewed substantively if Mr Shore makes a reinstatement application of his previous AAT2 application and his reinstatement application is successful.
Decision in relation to the First Reinstatement Decision
Returning to the issue of the “start date” that should apply in respect of the First Reinstatement Decision, the provisions in the Administrative Act dealing with the requirements for making a claim for NSA are set out in s 11. Subsection 11(1) makes it clear that subject to subsection (2) and Subdivision B, a person who wants to be granted the NSA must make a claim for payment in accordance with this Division.
To satisfy this requirement, the effect of subsections 16(1) and 16(4) of the Administration Act requires that a written claim be lodged with Centrelink. The Tribunal finds that Mr Shore did not lodge a written claim form until 22 May 2017.

At the relevant time, s 13 of the Administration Act deems a claim to have been made on an earlier date (than the date upon which the written claim was lodged) in certain prescribed circumstances including if the claimant contacted Centrelink:
(a)up to a maximum of 14 days prior to advise of his or her intention to make a claim; or
(b)up to a maximum of 13 weeks prior and:
(i)the person is able to show that he or she had a medical condition which had a significant adverse effect on their ability to lodge the claim (or they were caring for someone with such a medical condition); or
(ii)if there were special circumstances which made it reasonably impractical for them to otherwise lodge the claim earlier.
In Mr Shore’s favour, Centrelink decided to treat his “start date” as 27 March 2017, for the purpose of his written claim for the NSA which was lodged on 22 May 2017. The 27 March 2017 date is the day Mr Shore attended Centrelink’s offices as shown in Centrelink’s records. This record states as follows: [35]
Customer attended SC FOO initially regarding resolution of a complaint. Customer was referred to call the Customer Feedback line to follow up on any complaints lodged. Customer was dissatisfied with this offer. So details of the complaint were searched and located on record and the ID number of the complaint provided to customer along with a receipt for customer to call and follow up as the complaint had been finalised in 2016. ID: 8026518124. Customer then sought to have claim re-instated from April 2016. Noting that there were/are numerous ARO, AAT and FOI appeals in place – Customer was advised the he could re-claim for payment and await the outcome of relevant appeals.
[35] Refer T-Documents T33/160.
In other words, the ARO decided that the prescribed circumstances referred to in paragraph [47(b)(ii)] applied to Mr Shore and took 27 March 2017 as the date that he contacted Centrelink.
In assessing this application, the Tribunal has reviewed Centrelink’s computerised customer contact records comprising 125 different entries for contiguous communications between Mr Shore and Centrelink, or notes about Mr Shore’s file, spanning a three-year period from 3 December 2015 to 5 December 2018.[36]
[36] This record is found at T-Documents T33.
In accordance with s 13 of the Administration Act and as explained to Mr Shore at the hearing, the furthest back in time that this Tribunal could find a deemed “start date” for Mr Shore’s NSA claim was 20 February 2017, being the maximum of 13 weeks prior to 4 May 2017. However, to deem the “start date” as going back any further than 27 March 2017 (the date that the ARO deemed as the “start date”) would require the Tribunal to be satisfied that there was contact between Mr Shore and Centrelink between 22 February 2017 and 27 March 2017.
The Centrelink records referred to above show, and the Tribunal finds, that during this period Mr Shore only made contact with Centrelink on one occasion on 17 March 2017. Specifically, Centrelink’s records indicate that Mr Shore contacted the FOI National Team on 17 March 2017 regarding the “FOI request for customer contact details” and the records indicate that the “information was obtained via e-mail”.[37] The Tribunal finds that this does not give rise to circumstances which would provide any basis under s 13 of the Administration Act for the Tribunal to deem the “start date” for Mr Shore’s NSA claim to be 17 March 2017, or on any other date between 22 February 2017 and 27 March 2017.
[37] Refer T-Documents T33/160.
CONCLUSION
Accordingly, the Tribunal affirms the decision under review being the decision of the AAT1 on 4 December 2018, which in turn affirmed the decision of the ARO on 17 July 2018 to deem the “start date” for Mr Shore’s new NSA claim lodged on 4 May 2017 to be 27 March 2017. This means that Mr Shore has been paid the NSA to which he was entitled in the 13 weeks prior to lodging his new NSA claim on 22 May 2017 and his application for review to this Tribunal is unsuccessful.

54. I certify that the preceding fifty three [53] paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................
Associate
Dated: 1 October 2019

Date of hearing:

Date final closing submissions received:

18 April 2019

9 May 2019

Representative for the Applicant:

Self-represented

Representative for the Respondent: Mr Mark Hester, Deputy General Counsel
Litigation and Information Release Branch,
Legal Services Division,
Department of Human Services

[2019] AATA 4004

1 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Judicial Review

Procedural Fairness

Standing

Statutory Construction