Tesoriero and Secretary, Department of Family and Community Services

[2004] AATA 665

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/336

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NICOLE-JAY TESORIERO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date19 March 2004

PlaceSydney

Decision

The Application for review which was dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 is reinstated pursuant to subsection 42A(9).

The request for a stay of the implementation of the decision of the Social Security Appeals Tribunal dated 5 February 2003 is refused pursuant to section 41 of the Act.

…………………………………

Rear Admiral A R Horton AO 

CATCHWORDS     

PRACTICE AND PROCEDURE – application for reinstatement – application for review dismissed for failure to appear at hearing – application for reinstatement opposed by Respondent in view of previous failures to appear – request for order to stay implementation of debt recovery – request opposed by Respondent in view of delay in debt recovery – application for review reinstated – stay not granted  

Administrative Appeals Tribunal Act 1975 subsections 41((2), 41(3), 41(4), 42(2), 42(8), 42(9)

REASONS FOR DECISION

19 March 2004 REAR ADMIRAL A R HORTON AO        

1.      On 23 January 2004, the Administrative Appeals Tribunal (“the Tribunal”) dismissed an application for review of a decision of the Social Security Appeals Tribunal (“SSAT”) on 5 February 2003 which affirmed an earlier decision by Centrelink, which in turn was affirmed by an Authorised Review Officer (“ARO”) of the Secretary, Department of Family and Community Services (“the Respondent”) to  raise and recover a debt for overpayment of youth allowance.  Neither Ms Nicole-Jay Tesoriero (formerly Willcockson) (“the Applicant”) nor her representative attended the scheduled hearing on 22 January 2004, and the application was dismissed.

2.      On 6 February 2004, Ms Tesoriero lodged an application for reinstatement.  On 2 March 2004, Ms Tesoriero lodged a further application to stay the decision of the SSAT in respect of the recovery of the overpayment debt. The Tribunal considered both applications at a hearing on 9 March 2004.  Ms Tesoriero was self represented.  Ms S Mantaring, an advocate from the Service Recovery Team of Centrelink, appeared for the Respondent.

3. The Tribunal took into evidence the documents provided for the previously scheduled hearing by the Respondent pursuant to section 37 of the Administrative AppealsTribunal Act1975, in that they had relevance to circumstances in the matters before the Tribunal.   The Tribunal also took into evidence a letter from Ms Tesoriero dated 2 February 2004 (Exhibit A1), the request by Ms Tesoriero dated 2 March 2004 seeking a stay  (Exhibit A2), a facsimile from Ms Tesoriero dated 19 November 2003 (Exhibit A3), a facsimile from the Respondent dated 16 February 2004 opposing reinstatement (Exhibit R1), Centrelink document re garnishee dated 17 February 2004 (Exhibit R2) and Centrelink letter of 24 September 2003 to Ms Tesoriero (Exhibit R3).

LEGISLATION

4.        Section 42A of the Administrative Appeals Tribunal Act 1975 (“the Act’) refers to “Discontinuance, dismissal, reinstatement etc. of application”, the relevant subsections in this matter being:

(2)        If a party to a proceeding before the Tribunal in respect of an                    application for the review of a decision (not being the person               who made the decision) fails either to appear in person or to                  appear by a representative at a directions hearing, a conference                mentioned in section 34, or a mediation under section 34A, held               in relation to the application, or at the hearing of the proceeding,               the Tribunal may:

(a)    if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision; or

(b)       in any other case – direct that the person who failed to   appear shall cease to be a party to the proceeding.

(8)       If the Tribunal, under subsection (2), has dismissed an    application (other than an application in respect of a proceeding   in which an order has been made under subsection 41(2)), the   person who made the application may, within 28 days after   receiving notification that the application has been dismissed,   apply to the Tribunal for reinstatement of the application.

(9)       If it considers it appropriate to do so, the Tribunal may reinstate   the application and give such directions as appear to it to be   appropriate in the circumstances.”

5. Section 41 of the Act refers to the “Operation and Implementation of a decision that is subject to review”, the subsections relevant to the request for stay before the Tribunal being:

“(1)      Subject to this section, the making of an application to the    Tribunal for a review of a decision does not affect the operation   of the decision or prevent the taking of action to implement the   decision.

(2)       The Tribunal or a presidential member may, on request being                    made, as prescribed, by a party to a proceeding before the   Tribunal (in this section referred to as the relevant proceeding),   if the Tribunal or presidential member is of the opinion that it is   desirable to do so after taking into account the interests of any   persons who may be affected by the review, make such order or   orders staying or otherwise affecting the operation or   implementation of the decision to which the relevant proceeding   relates or a part of that decision as the Tribunal or presidential   member considers appropriate for the purpose of securing the                   effectiveness of the hearing and determination of the application   for review.

(3)       Where an order is in force under subsection (2) (including an order          that has previously been varied on one or more occasions under this         subsection), the Tribunal or a presidential member may, on request        being made, as prescribed, by a party to the relevant proceeding,   make an order varying or revoking the first-mentioned order.

(4)     Subject to subsection (5), the Tribunal or a presidential member shall   not:

(a)       make an order under subsection (2) unless the person who    made the decision to which the relevant proceeding relates   has been given a reasonable opportunity to make a   submission to the Tribunal or presidential member, as the   case may be, in relation to the matter; or

(b)       make an order varying or revoking an order in force under    subsection (2) (including an order that has previously been   varied on one or more occasions under subjection (3)) unless:

(i)        the person who made the decision to which the   relevant proceeding relates;

(ii)       the person who requested the making of the order   under subsection (2); and

(iii)      if the order under subsection (2) has previously been   varied by an order or orders under subsection (3) – the    person or persons who requested the making of the   last-mentioned order or orders;

have been given a reasonable opportunity to make   submissions to the Tribunal or presidential member, as   the case may be, in relation to the matter.”

REINSTATEMENT – EVIDENCE AND DECISION

6.        In January 1999, Ms Tesoriero enrolled as a full time student at Randwick College of Technical and Further Education (“TAFE”) and was granted youth allowance, this being paid at the “away from home rate”.  Following investigation in respect of her domestic arrangements and attendance at Randwick TAFE,  Centrelink decided that she was not eligible for this allowance and raised for recovery a debt of $2647.26.   On 17 October 2000, an ARO affirmed the decision.  Ms Tesoriero lodged an appeal against this decision with the SSAT on 15 October 2002, this apparently resulting from advice being received that a debt collection agency had been contracted to recover payment.  Following affirmation of the decision by the SSAT, Ms Tesoriero applied for review by the Tribunal on 28 February 2003.

7.        The Respondent opposed the request by Ms Tesoriero for reinstatement on the grounds that she had not  provided adequate explanations in respect of a failure to provide documents to support her position within an agreed timescale, and failures to attend a preliminary telephone conference on 19 August 2003, and scheduled hearings on 10 November 2003 and 22 January 2004.  As earlier noted, it was her failure to attend or be represented, on the latter occasion that led to the decision to dismiss her application.  

8.        No evidence was before the Tribunal in respect of the delay in providing documentation.   As regards her failure to attend the preliminary conference on 19 August 2003, Ms Tesoriero gave evidence that she informed both the relevant Service Recovery Team officer at Centrelink, and the Conference Registrar at the Tribunal, at least two days before the planned conference, that her work would prevent her attendance.  In respect of the hearing scheduled for 10 November 2003,  Ms Tesoriero referred to a facsimile from her to the Tribunal dated 19 November 2003 (Exhibit A3), that is, nine days after the scheduled hearing.  Her explanation for non attendance was:

“the reason I did not attend the meeting …is due to the fact that I was working on that day. I did call your office about 4 days prior to the interview to advise the staff that I wouldn’t be able to make it.  I also advised that I have changed my mobile phone number…”

There is no evidence before the Tribunal as to the receipt of this call.

9.        Ms Tesoriero’s letter of 2 February 2004 (Exhibit A1) refers to her failure to attend the scheduled hearing on 20 January 2004, because she was “running late…and did not have enough credit on my mobile”. She elaborated on this explanation in her oral evidence, stating she drove to the city, with which she was unfamiliar, only to find that street parking was not available and by the time she found a parking station she was late.  On arrival at the Tribunal she spoke with the hearing attendant, to be informed that the hearing had been cancelled in her absence. 

10.      Ms Tesoriero arrived late for the hearing before this Tribunal on 9 March 2004, when her train from Mascot to the City was delayed at Central Station by the absence of the relief driver.  The Tribunal has no reason to doubt this evidence, given current staffing problems in the rail system, and comments both official and public referring to driver shortages and delays at Central.  The point remains however, that Ms Tesoriero once again did not make adequate provision for possible delays.

11. Subsection 42A(9) of the Act provides the flexibility for the Tribunal to reinstate the application “if it considers it appropriate to do so”.  In the circumstances,  the Tribunal might well accord with the opposition by the Respondent to reinstatement.  However, the Tribunal is of the opinion that one further opportunity for the decision of the SSAT to be reviewed would be in the best interest of both parties and would ensure that the requirements of natural justice are adequately and properly met.  In reaching this view, the Tribunal also takes account of the age of the Applicant.

12. The decision of the Tribunal is therefore that the application for review is reinstated under the provisions of ss 42A(9) of the Act. It should be noted that Ms Tesoriero was left in no doubt at the hearing, that should her application be reinstated, timely appearance at any future hearing was paramount.

STAY – EVIDENCE AND DECISION 

13.      The decision by the ARO that a debt was to be recovered was made on 17 October 2000.  It was not until 15 October 2002 that Ms Tesoriero lodged an appeal with the SSAT.  In the intervening two years, no recovery of the overpayment debt was realised.

14.      The SSAT affirmed the decision that an overpayment was to be recovered on 5 February 2003.  Notwithstanding that Ms Tesoriero lodged an application for review by the Tribunal on 28 February 2003, recovery of the full amount of the overpayment  remains outstanding.  Following dismissal of the application on 23 January 2004, Centrelink authorised a garnishee of 10% of her wages to take effect from 17 March 2004.  Exhibit R2, raised by a Ms Baldwin, notes that “Garnishee was actioned as A/N refused to make an arrangement to repay outstanding monies.  I discussed repayments with A/N on several occasions …at an amount affordable to her.  I offered an amount of $10 p/f to A/N to repay.  Customer refused this amount.”

15.      In evidence, Ms Tesoriero stated that she has been employed on a permanent full-time basis since about May 2001, covering 2 years with Avis, 5 months with Thrifty, and now with P and O at St Leonards since September 2003.  At times her job has involved shift work.  She earns about $29,000 per year, with an allowance for sick leave, which she described as 5 days per year in her present employment.  She stated that she takes 2 to 3 sick days per month, and receives no payment for days in excess of her annual allowance.  No medical documentation was before the Tribunal.

16.      Ms Tesoriero described her take home pay as between $1400 and $1800 per month, from which she has weekly commitments of $100 board to her father, $73.80 payment on her car, $40 fuel costs and recently a $440 repair bill.  She referred to further weekly costs of $40 for train fares, mobile phone costs, living expenses and cigarettes.  She described her social life as minimal, and her financial position as “I have no money”.

17.      In respect of the attempts by Centrelink to make an arrangement for periodic repayment of the outstanding debt, she gave evidence that she could only consider an arrangement through a supervisor, and Centrelink had consistently failed to understand this requirement.  She acknowledges at Exhibit A2, that the decision to garnishee her wages has been taken by the “supervisor of the Debt Collections Dept”.  She further stated to the Tribunal that she could not afford to lose 10% of her wages by way of garnishee.  The Respondent submitted that the garnishee was being implemented because Ms Tesoriero declined to enter into any arrangement for repayment of this long standing debt.

18.      The original decision that a debt was to be recovered was made in June 2000.  The decision by the SSAT to affirm the debt and recovery was made in February 2003.  Taking account of the fact that Ms Tesoriero has made no attempt to commence repayment of the debt, albeit that applications for review were in train at various times, and has refused to consider a periodic payment arrangement of as little as $10 per fortnight, the decision of the Respondent to impose a garnishee on her wages can be seen in a realistic and reasonable light.  Further, on her evidence, Ms Tesoriero has been in full employment for most of this period, and her outgoings predominantly relate to personal expenditure.  To suggest that she cannot adjust her commitments to meet a reasonable repayment schedule, let alone one as low as $10 per fortnight, defies logic.  Her argument that she can only consider a repayment arrangement with a “supervisor” is not a reasonable excuse, given the allocation of responsibilities within Centrelink.             

19. The decision of the Tribunal is that a stay of the decision to raise and recover the overpayment debt is refused pursuant to section 41 of the Act. The garnishee will remain in force until, and subject to the satisfaction of the Respondent, an arrangement for repayment of the debt is formalised with Ms Tesoriero, this decision being subject to any decision arising under the application for review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Date of Hearing  9 March 2004

Date of Decision                  19  March 2004
Representative for the Applicant              Ms Tesoriero (Self-represented)

Advocate for the Respondent                    Ms Susan Mantaring