Smart and Secretary, Department of Family and Community Services
[2004] AATA 50
•22 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 50
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/151
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW SMART Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr M Allen, Member Date22 January 2004
PlacePerth
Decision The decision of the Social Security Appeals Tribunal made on 31 March 2003 is affirmed.
...............(sgd M Allen)............................
Member
CATCHWORDS
SOCIAL SECURITY – New Start Allowance – failure to provide information requested – delegate could not be satisfied that applicant was eligible to receive New Start Allowance – no other information available to show applicant was eligible – decision of SSAT affirmed.
Social Security Administration Act, 1999 s 36, s 37, s 63
Freeman v Secretary, Department of Social Security 15 ALD 671
Re McDonald and Director of Social Security (1984) 6 ALD 6
REASONS FOR DECISION
26 January 2004 Mr M Allen, Member 1. This is an application by Mr Andrew Smart for a review of the decision of the Social Security Appeals Tribunal (SSAT) made on 31 March 2003 by which the SSAT affirmed the decision of an authorised review officer (ARO) as a delegate of the Secretary made on 10 March 2003 to reject an application for New Start Allowance (NSA) made by Mr Smart (which was made in substitution for an earlier decision).
2. At the hearing Mr Smart represented himself and the Secretary was represented by Mr Ward from Centrelink’s Advocacy and Administrative law team. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and exhibits A1-A14 tendered by the applicant and R1-R4 tendered by the respondent. Mr Smart gave oral evidence at the hearing, as did Mr Joe Gentilli, who is a Centrelink ARO.
Background
3. Many of the facts concerning the matter are not in dispute and the following findings of fact can be made based on the documents and the oral evidence given.
4. Mr Smart had applied for and had been granted NSA in the middle of 2002. Sometime during October 2002 he, at very short notice, travelled from Perth to Melbourne for the purpose of undertaking some sort of paid work. Whilst he was in Melbourne he deliberately failed to lodge payment advice forms with Centrelink as he was required to do in the expectation, and intention, that his NSA would be terminated because of that failure. This did occur.
5. In about the middle of December 2002 Mr Smart returned to Perth and on 2 January 2003 he contacted Centrelink with a view to again claiming NSA. An appointment was made for him to attend a Centrelink office on 9 January 2003 but he failed to attend the interview. On 13 January 2003 Mr Smart again contacted Centrelink and an appointment was made for 20 January 2003. In a declaration form signed by Mr Smart on that day his previous occupation was described as “self-employed” (T5 folio 26) and he declared that he understood that he may need to provide further information in relation to his application (T5 folio 28).
6. At the same interview he was asked to complete a “mod F- business details” form (T5 folio 30-36). That form states on its front page that “the information and documents asked for on this form are needed to decide whether Centrelink can grant your claim” and that the form must be completed if the claimant had been “involved in a business prior to claiming NSA”.. In part E of the form, which sought information about the self-employed person’s business, Mr Smart made entries to the effect that he had never been involved in the running of a business but indicated that he intended to resume self employment or working in his business “if I was offered temporary self-employment”.
7. Mr Smart signed a statement (which had been handwritten by a Centrelink officer) which was to the effect that he had worked as a mechanic on a temporary basis in Melbourne and most of the work was for an entity named as “Coach Park Holding” (CPH). The statement also noted that Mr Smart was not working for wages but more on a contract temporary basis and he did not receive, nor was he entitled to, any holiday leave pay.
8. A note made by a Centrelink officer on that day (T6 folios 37 and 38) records that Mr Smart could not provide names of his last job details or details of who had paid him, that he had worked in Melbourne as a mechanic, and that he was unsure whether he had been self employed but he did know that he had not been working for wages. The Centrelink officer recorded that the details had been hard to explore because Mr Smart was “very vague and non-disclosing”.. The record noted that Mr Smart had been voluntarily unemployed at the beginning of 2002 because of disagreements with an employer. The record also recorded that a company name provided by Mr Smart could not be located and that he had said that he had not kept details of this employment in Melbourne because he did not think he would ever need that information. The officer noted a large withdrawal from the applicant’s bank account in early January 2003.
9. Because of the lack of clarity about the claim and prior work record a letter was sent to Mr Smart dated 23 January 2003 (T7). The letter informed Mr Smart that more information was needed about the period of work in Melbourne before his NSA claim could be finalised and that if the information was not received by 7 February 2003 the claim would be rejected.
10. On 29 January 2003 Mr Smart signed a statement that he had written out (T8) in which he accused the Centrelink officer who had prepared the 20 January statement that he signed of concocting a false story. In that statement the applicant said that he had made it clear to Centrelink that he was in Melbourne on temporary self-employment.
11. On the same day a further letter dated 29 Jan 2003 (T9) was sent to Mr Smart asking that he provide a letter from CPH confirming the date he had ceased employment, any leave entitlement paid and period covered, and the reason for ceasing employment. The letter stated that the document was to be provided within 14 days to avoid possible rejection of the claim for NSA and the possible incurring of an administrative breach penalty for future payment. Document T10 is a record made by a Centrelink officer of Mr Smart’s attendance at a Centrelink office on 29 January.. The record states that Mr Smart had stated that he was self-employed in Melbourne but that he refused to give details of the last employer or to confirm the date last worked, leave entitlement etc. Mr Smart had apparently told the Centrelink officer that it was outside his control to contact the last employer himself to get the information that was required. The officer records that Mr Smart was informed that because he had ceased self employment he must provide proof that such employment had ceased and that the applicant was advised that he had 14 days to provide verification from his previous employer in Melbourne or his claim for NSA would be rejected.
12. In response to the letter of 29 January Mr Smart went to his Centrelink office on 31 January 2003. Document T13 is a record that records that he was angry and stated that he was unable to provide proof that his self employment had ceased. The record records that Mr Smart requested that his NSA claim be rejected because he wished to have the matter reviewed by an ARO. Mr Smart is recorded as saying he was not willing and was unable to supply previous employment details because he did not want to breach confidentiality with his customers.
13. On 31 January 2003 a team leader at the Centrelink office telephoned Mr Smart to discuss his situation. Document T13 folio 49 records the note made by the team leader. Mr Smart is reported to have said that he did two jobs for two customers in Melbourne and it is too difficult to get his customer to confirm as it appears the money was paid in cash and deductions were taken out for accommodation and petrol. Mr Smart was also recorded as saying that “he is not going to breach confidentiality with his customers as he will not get repeat business. Customer wants claim rejected and wants case to go to ARO for review”.
14. On 1 February 2003 Mr Smart was advised by a letter of that date that his NSA claim had been rejected because Centrelink had not received a reply to the letter that had been sent to him. The letter advised of his rights to have the matter reviewed by an ARO.
15. On 12 February 2003 the original decision maker affirmed the decision and the matter was referred to an ARO. Document T19 is a record of a telephone conversation between the ARO (Mr Gentilli) and Mr Smart. In that conversation the ARO records that Mr Smart informed him that he had worked at a particular address in Oakley in Victoria and that a number of bus companies operated from that address but the location is owned by CPH. He informed the ARO that he did not have a phone number for the bus company nor did he remember how he was employed. He did say that he was self employed but when asked to produce a profit and loss sheet or other financial records Mr Smart is recorded as saying that he had not earned enough to have to produce such records. He also informed the ARO that he had worked at a second coach yard in Melbourne.
16. The ARO subsequently made inquiries about a company known as Coach Park Holdings Pty Ltd. On 10 March 2003 the ARO made a decision that the original decision to reject the NSA claim was not valid because the rejection decision had been made prior to the 14 days that had been allowed in the further request for information contained in the letter of 29 January 2003. Nevertheless, the ARO substituted a new decision that NSA was not payable to Mr Smart because he had not complied with the requirement of the letter of 29 January 2003 and did not have a sufficient reason for failing to do so.
17. The oral evidence of Mr Smart was that he had gone to Melbourne at short notice because of the offer of employment. He said that he had been told to contact a person at a service station in Melbourne and when he did that he was initially housed in a motel but subsequently stayed at a coach yard or at the homes of other acquaintances. He said the work that he did varied from cleaning tasks to mechanical repair work. He had at no time received cash but he had received food and petrol and accommodation. He subsequently said that the reason he was not prepared to give the names of the people he was working for in Melbourne was that he regarded them as dangerous people and that they had connections with organised crime figures. He said that the reason he had eventually come back to Perth was that he had some sort of encounter with criminal elements. He also said that he disliked having to give Centrelink information about his work.
18. Mr Gentilli was the ARO who dealt with Mr Smart’s claim. He explained that he had made a number of enquiries via other Centrelink officers in an attempt to get to the bottom of Mr Smart’s employment situation in Melbourne. This information was relevant because it went to the issue of whether Mr Smart was qualified to receive NSA and to the rate of any payment of it. It was relevant to such matters as whether there would be any waiting period or any non-payment period because of voluntary unemployment, or whether there should be any breach rate reduction period imposed because of voluntary unemployment. It was also relevant to the question of whether there was any outstanding leave due to Mr Smart and to the general question of whether, if Mr Smart had indeed been self employed, whether he was actually unemployed or not at the time of his claim. At the end of the day his only concern was whether Mr Smart was entitled to NSA or not. He had made a judgement that, because of Mr Smart’s failure to provide the relevant information and the failure of his own enquiries to locate the possible employer in Melbourne, he could not make an informed and legitimate decision about whether or not Mr Smart was entitled to NSA.
Submissions
19. Mr Smart submitted, essentially, that he was not able to provide the kind of information that Centrelink was seeking because he simply did not know the details and he had given Centrelink all that he could provide - except the details of by whom he had been employed. He could not do this because it would destroy the trust that his employers had with him. He had only known of the CPH name because he had seen it written on a wall where he had been working and apart from that he had only dealt with people on a first name basis.
20. Mr Ward submitted that the information that was provided by Mr Smart had been insufficient to satisfy the decision maker regarding his qualifications for and the payability of NSA and the decision maker had a duty to establish entitlement. He submitted that Mr Smart had been consistently vague in the provision of information and that Mr Smart was able but not willing to provide more information than he had. He said that Mr Gentilli had done his utmost to obtain information so that an informed decision could be made about Mr Smart’s claim. All the requests that had been made for information were reasonable and Mr Smart had no reasonable excuse for not complying.
Consideration
21. Section 36(1) of the Social Security Administration Act 1999 (the Administration Act) imposes on the Secretary a duty to determine a claim for a social security payment - by either granting or rejecting the claim.
22. Section 37(1) provides a general rule that the Secretary must grant the claim if the Secretary is satisfied that the claimant is both qualified for the payment and that the payment is payable. Section 37(2) deals specifically with NSA claims. The Secretary must grant a claim for an NSA if the Secretary is satisfied that the claimant is both qualified for the payment and that the NSA would be payable apart from the application of five specified periods of time that are set out in the subsection and which effect the payability or the rate of payment for certain periods of time. It is to be noted that s 37(1) and s 37(2) require two elements to be satisfied: first, that the claimant is qualified for the payment (ie satisfies basic eligibility rules) and, secondly, that the payment claimed is payable (which involves considerations such as what would be the rate of payment and when payments should start). It is apparent from s 37(2) that the decision maker was required to make decisions about whether NSA was payable to Mr Smart at all and whether any of the five specified or other factors in s 37 were applicable and would effect the rate of payment or the date of its commencement. No doubt it was for that purpose that the delegate sought information from Mr Smart on a number of occasions during January 2003.
23. Section 63(3) of the Administration Act relevantly provides that if the Secretary considers that a person who has claimed NSA should give information to the Secretary then the person can be notified that he is required within a specified time to give that information. If the person is so required, the requirement is reasonable, and the person does not comply with the requirement, then NSA is not payable and an administrative breach rate reduction period may apply if at a later time NSA becomes payable to the person: s 63(5). A notification made under s 63(3) may be by prepaid post but it can also be made in any other way. Section 63(9) provides that where a social security payment is not payable because of s 63(5) it can, nevertheless, be paid to the person if the Secretary is satisfied the person had a reasonable excuse for not complying with the requirement under s 63(3). Section 63(11) provides that a notification given under s 63(3) must inform the person to whom it is given of the effect of s 63.
24. In my opinion the various letters that were given to Mr Smart during January 2003 and the oral requests made by Centrelink officers during that time for information were valid notifications under s 63 of the Administration Act and it was reasonable for the information to be requested because it may have affected the payability of NSA to Mr Smart. In my opinion the evidence of Mr Smart was most unsatisfactory. He was vague and evasive in his responses to questions and his evidence was generally contradictory. On the one hand he asserted that it was not within his control to provide information about who had employed him and the basis of that employment, but on the other hand he maintained to the end that he could not provide information of that kind because he considered it confidential and any provision of it would undermine that confidentiality and trust. In my opinion there was considerably more evidence that Mr Smart could have provided to Centrelink (and to the Tribunal) about the basis of his employment in Melbourne and the identity of who had employed him, and he had no reasonable excuse for not providing that information.
25. It follows, in my opinion, that his failure to provide the information resulted in s 63(5) of the Administration Act applying and NSA not being payable to him because of that failure. In any event, even if the requests made of him for information during January 2003 did not satisfy the requirements of s 63, it is clear that Mr Smart knew perfectly well that Centrelink required further information in order to make an assessment of his claim. In my opinion he consciously declined to provide the information sought even though it was apparent to him that if he did not do so then Centrelink would not be able to complete the assessment of his claim. In such a situation the delegate would be left in a position of being uncertain about relevant factors concerning whether the benefit claimed was payable, and the correct calculation of the rate of payment. In my opinion, both the original decision maker and the ARO could not be satisfied that Mr Smart was both qualified for the benefit claimed and that the benefit was payable to him in the circumstances. If the delegate and the ARO were left with that state of uncertainty then it could not be said that Mr Smart had provided all the information needed to establish his entitlement to NSA and the correct or preferable decision would be to reject the application: Re McDonald and Director of Social Security (1984) 6 ALD 6.
26. Because these proceedings involve a decision to reject an application for a benefit, the Tribunal is entitled to consider any entitlement Mr Smart had up to the time of the Tribunal’s decision: Freeman v Secretary, Department of Social Security 15 ALD 671 at 674 per Davies, J. In the present case Mr Smart was able to make a second application for NSA during March 2003 and that application was successful because he had, in the meantime, been able to undertake several weeks’ paid employment and was in a position to satisfy Centrelink’s requirement regarding previous employment. In the present proceedings Mr Smart declined to provide Centrelink with the information requested and at the hearing before me he continued to fail to provide that information.. There is, therefore, no evidence before me that would enable me to make a decision that Mr Smart was indeed entitled to NSA benefits from the beginning of January 2003 until any subsequent date. In the circumstances, therefore, my decision is that the decision of the SSAT made on 31 March 2003 is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ......................(sgd V Wong).......................
Associate
Date/s of Hearing 28 August 2003
Date of Decision 22 January 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr C Ward
Solicitor for the Respondent The Service Recovery Team, Centrelink
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