Twentyman and Secretary, Department of Social Services (Social services second review)
[2018] AATA 110
•5 February 2018
Twentyman and Secretary, Department of Social Services (Social services second review) [2018] AATA 110 (5 February 2018)
Division:General Division
File Number: 2017/2549
Re:Keith Twentyman
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:5 February 2018
Place:Sydney
The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – suspension and cancellation of DSP – whether the cancellation decision was the correct or preferable decision –notice to a recipient of social security payment to advise Centrelink if planning to travel outside Australia – periods of overseas travel – whether the Applicant complied with the requirement to advise Centrelink about his travel overseas – decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth), ss 28A, 29
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Social Security Act 1991 (Cth), s 94Social Security (Administration) Act 1999 (Cth), ss 68, 80, 81, 1217
CASES
Fahmy and Secretary, Department of Social Services [2014] AATA 164
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Freeman v Secretary, Department of Social Security (1988) FCR 342
Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870 (10 October 2006)SECONDARY MATERIALS
Explanatory Memorandum for the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures Act) Act 2011
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
In this review proceeding, the Tribunal has to decide is whether the decision made on 12 December 2005 to cancel Mr Twentyman’s Disability Support Pension (DSP) with effect from 26 September 2005 (the cancellation decision) was the correct or preferable decision. A decision had been made to suspend payment of the DSP on 26 September 2005.
Mr Twentyman had been granted the DSP in 2001.
The cancellation decision is important to Mr Twentyman now because the qualification criteria for DSP have changed since 2005. When he applied for DSP again in 2013, he was ultimately unsuccessful under the changed criteria on review in this Tribunal on 10 April 2015.
On 5 February 2016, a representative from Welfare Rights contacted Centrelink requesting that an appeal be lodged regarding a cancellation of DSP on 26 September 2005. On 29 March 2016, the Authorised Review Officer (ARO) decided that the 2005 cancellation decision was correct, because Mr Twentyman was not an Australian resident from 26 September 2005.
On 20 April 2017, a member of the Social Services & Child Support Division of the Tribunal (AAT1) affirmed the ARO’s decision that the 2005 cancellation decision was correct but for different reasons. Mr Twentyman has requested the review of that decision by the General and Other Divisions Division of the Tribunal.
The relevant legislation is the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Administrative Appeals Tribunal Act 1975 (the AAT Act)
The issues to be decided
The issues that that the Tribunal has to determine in this case are:
(i)Whether the cancellation decision was the correct or preferable decision; and
(ii)If not, from what date should the Tribunal’s decision take effect.
The information taken into account by the Tribunal in making its decision
The Tribunal held a hearing on 20 September 2017. Mr Twentyman gave evidence. He was represented by counsel at that time. The documentary material that the Tribunal has taken into account in making its decision included documents the Applicant relied on and the documents relevant to the decision required to be lodged with the Tribunal provided by the Secretary under s 37 of the AAT Act. Those documents are referred to as “T-documents”.
Some documents were provided after the hearing. Mr Twentyman was no longer legally represented. The Secretary provided copies of relevant extracts from the Guide to Social Security Law as it was at 6 February 2006 and 26 September 2005. Mr Twentyman provided some additional documents he had obtained under freedom of information legislation.
The Tribunal had before it two written submissions on behalf of Mr Twentyman comprising 47 pages, and the Statement of Facts, Issues and Contentions provided on behalf of the Secretary. It heard oral submissions on behalf of Mr Twentyman and the Secretary.
The Secretary’s argument
Following is a summary of the Secretary’s argument.
The 2005 cancellation decision was the correct or preferable decision.
The Tribunal can consider all the material before it that is relevant to the circumstances that existed at the date of the cancellation decision, but not consider circumstances that existed after that date.[1] The decision to suspend or cancel must be a “rational and proportionate response”.[2]
[1] Freeman v Secretary, Department of Social Security (Freeman) (1988) FCR 342 at [9].
[2] Fahmy and Secretary, Department of Social Services [2014] AATA 164.
Two provisions of the Administration Act provided the legislative basis for the suspension and cancellation decisions, ss 80 and 81.
Section 80 of the Administration Act provides a discretionary (sic) power to the Secretary to determine that a person’s social security payment should be suspended or cancelled, if satisfied that the person was either not qualified for the payment, or it was not payable to the person.
Section 81 provides for the suspension or cancellation of a social security payment where a person receiving the payment fails to respond to a notice given under the Administration Act.
Section 68(2) of the Administration Act provides that if a person is receiving a Social Security payment, the Secretary may give that person a notice requiring that person to inform the Department if a specified event or change in circumstances occurs, or is/are likely to occur.
Mr Twentyman has been dealing with the Department since 1993.[3] He has received numerous notices informing him of his obligations to inform the department of certain events and changes in circumstances, including the notice dated 21 April 2005.[4] That was a notice given pursuant to s 68 of the Administration Act.
[3] T documents, p 148.
[4] Supplementary T documents, pp 158-160.
The suspension decision was made after Mr Twentyman departed Australia on 22 August 2005.[5] The suspension decision was made because the Centrelink Specialist Officer (CSP) was concerned whether Mr Twentyman had an ongoing entitlement to DSP after receiving a tip off about his travelling outside Australia.[6]
[5] T documents, p 156.
[6] T documents, p 84.
The discretion to suspend the payment of DSP was enlivened under both ss 80(1) and 81(3) of the Administration Act. The suspension decision was a “reasonable and proportionate” response to circumstances where:
·Mr Twentyman had failed to inform the Department of his departure as required;
·it was not known if or when he would return to Australia;
·an investigation had commenced in relation to suspicious travel patterns; and
·the Secretary has a responsibility to maintain the integrity of the Social Security system by ensuring that abuses of the system are minimised (s 8(a)(v) of the Administration Act).
The cancellation decision was made on 12 December 2005 “because of your departure overseas”.[7] There was no file note giving more detailed reasons. Relevant circumstances apparent from the Department’s records include the following:
[7] Letter dated 4 February 2006 from Centrelink to Mr Twentyman notifying him of the cancellation decision.
·The department was undertaking an investigation into whether Mr Twentyman was entitled to DSP following a tipoff.
·His payments had been suspended with effect from 26 September 2005 and as far as the department was aware, he had been without financial support since that time. It still does not know.
·In subsequent departmental contacts, Mr Twentyman had demonstrated a reluctance to cooperate fully with the investigation, refusing to answer questions, claiming that it was not the Department’s business, and that he did not have to answer to any authority.
·He gave inconsistent information about his travels.
·He provided information that suggested that he may have received loans which he had not previously declared.
·It was unclear where or with whom he lived in Thailand, particularly whether he lived in a marriage-like relationship.
·He had told the department that he was operating a business in Thailand.
·He had continued to leave Australia for extended periods without notifying the department, while the investigation was ongoing.
·On 17 November 2005 Mr Twentyman had told the department that he was in Australia and prepared to come in for an interview, however he departed again on 8 December 2005 and did not return until 4 March 2006, after the date of cancellation.
The cancellation decision under s 81(3) of the Administration Act was rational and proportionate. Mr Twentyman had departed Australia on 8 December 2005 without notifying the department, although he had been specifically reminded of his obligation to do so.[8] The department did not know if or when he would return.
[8] T documents, pp 96-98.
Care must be exercised before cancelling social security entitlement to which a person has previously been found to be entitled, but that must be balanced against the public interest of ensuring accountability in the social security system and the obligation imposed on social security recipients to comply with lawfully issued notices.[9]
[9] Fahmy at [43].
Mr Twentyman’s acts and omissions summarised above, displayed a clear intent to hide matters relevant to his continued qualification for DSP.
If the Tribunal decided to set aside the reviewable decision, that will have the effect of determining that the Applicant remained entitled to payment from the date of cancellation. In that case, the Tribunal should consider whether, at the date of the cancellation decision:
(i)Mr Twentyman was qualified for DSP; and
(ii)whether DSP was payable to him, as required by s 85(1) of the Administration Act.
If the Tribunal is not so satisfied, setting aside the cancellation decision cannot be the correct or preferable decision.
The only impairment ever assessed by the department in respect of Mr Twentyman was a psychological/psychiatric impairment.
There were a number of factors that cast doubt on whether Mr Twentyman qualified for DSP pursuant to s 94(1) of the Act.
(i)Whether he satisfied the criteria for a rating of 20 points under the relevant Impairment Table; and
(ii)whether he had a work capacity of more than 30 hours per week.
Even if he qualified for DSP, the rate at which DSP was payable is uncertain. There are unanswered questions about Mr Twentyman’s income and assets at the time of the cancellation decision.
If the Tribunal set aside the cancellation decision, it would have to determine the date of effect of its decision.
The date of effect would be 5 February 2016, when Mr Twentyman applied to the Authorised Review Officer for review of the cancellation decision, relying on s 109 of the Administration Act.
The Tribunal should not exercise its discretion under section 43(6) of the AAT Act to determine a date of effect other than the date its decision comes into operation.
Mr Twentyman’s argument
Following are the arguments put on behalf of Mr Twentyman.
The suspension decision was ultra vires and void because it was made on the same day the investigation into his circumstances commenced. Therefore, the Secretary could not have been “satisfied” that the Applicant was not qualified for DSP or that it was not payable pursuant to s 80(1) of the Administration Act, because that would have rendered the investigation unnecessary.
The cancellation decision was ultra vires and void because it was made before the investigation into Mr Twentyman’s circumstances was completed on 9 January 2007. Therefore, the Secretary could not have been “satisfied” that the Applicant was not qualified for DSP or that DSP was not payable when the cancellation decision was made because it would have rendered the continuing investigation unnecessary.
If the decisions to suspend or cancel Mr Twentyman’s DSP was/were made because he failed to comply with the investigation, the decisions were incorrect because he did comply and answered questions frankly about his source of financial support. His response to questions from Centrelink was reasonable, taking into account that Mr Twentyman suffers from bipolar affective disorder. He has difficulty concentrating and gets frustrated. He is not well-educated. He claimed to have a low IQ. He was requesting a review of the suspension and cancellation decisions during his interactions with Centrelink in 2005 and 2006.
Mr Twentyman says that he did inform Centrelink about his overseas travel and was told on 1 March 2002 not to advise Centrelink unless he was going for more than the portability period of five or six weeks. He denied knowing that it was 26 weeks. He said in response to his freedom of information requests he was only sent two letters from Centrelink, dated 4 February 2006 and 11 October 2005. He was peripatetic, as shown by the list of addresses in Centrelink records. He did not receive any of the letters, including the letter dated 21 April 2005. They were sent to his mother’s address and he was away in Thailand most of the time. The letter dated 11 October 2005 was not relevant because it was after the decision had been made to suspend DSP and he had not seen it anyway. In any event, Mr Twentyman did contact Centrelink and gave relevant information. On 17 November 2005 he advised that he was back in Australia. Further, the power to suspend or cancel a social security payment after a notice has been given pursuant to section 67 or 68 under s 81(1) of the Administration Act is discretionary.
As a model litigant, the Secretary should not rely on the 21 April 2005 notice. If the correct decision had been made, Mr Twentyman would have been paid throughout the period since that decision was made and there would be no prejudice to the Commonwealth if he we was repaid.
The suspension and cancellation decisions were incorrect because Mr Twentyman was not “required to remain an Australian resident” after having qualified for DSP on 12 July 2001, because his overseas trips between 20 March 2002 and 25 September 2005 were allowable absences” pursuant to s 1217(2) of the Act.
The Tribunal should not consider the Secretary’s argument based on the question of qualification for DSP because he did not satisfy the 20 points criterion in the Impairment Tables, or because it was not payable because of doubts about his income and assets at the time the suspension or cancellation decision. Neither of those matters had been raised at either of the two conferences the Tribunal held in relation to this case.
If the Tribunal did consider them, written and oral submissions were made on the facts relevant to those issues.
The response to the freedom of information requests made by Mr Twentyman show that the records before the Tribunal are incomplete and therefore unreliable. Further, the Secretary is asking the Tribunal to draw from documents inferences that are not available.
Consideration and findings
The Secretary’s representative conceded during the hearing that the issue of whether Mr Twentyman was resident in Australia did not bear on the decision under review. The Tribunal understands that the concession was made because at the time of the suspension and cancellation decisions, the Act required, relevantly, that the person “is an Australian resident at the time when the person first” satisfied the criterion relating to work capacity, which in this case was 2001.[10] There was no ongoing requirement that a person be an Australian resident. An amendment to the Act was made on 1 July 2011 closing that “loophole”.[11] There was no suggestion that Mr Twentyman had not complied with the portability periods in force at the relevant time.
[10] Section 94(1)(e) of the Act.
[11] Section 94(1)(ea); Explanatory Memorandum for the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures Act) Act 2011.
On reviewing the contemporaneous Centrelink records, the Tribunal finds the following.
Relevantly, Mr Twentyman’s difficulties with Centrelink began in about August 2004 when Centrelink became aware that Mr Twentyman had moved addresses. On 27 August 2004 he advised Centrelink at Redfern that he had been living with a woman in a de facto relationship for seven years and had engaged a solicitor to “aid in recovery of his personal possessions and his share of the house Ms (X) owns”. His former de facto partner had advised Centrelink that he had moved out at an earlier time than he claimed. An overpayment of DSP was raised. That seemed to be resolved quickly. However, as a consequence of the disclosure of the de facto relationship, a CSP became involved on 12 April 2005 in reviewing Mr Twentyman’s entitlement to DSP in relation to “mlr”, which the Tribunal understands to refer to “marriage like relationship”.
On 21 April 2005, Centrelink sent a letter to Mr Twentyman to the postal address he had provided to Centrelink. It set out the various components of his DSP payment and comprehensive details of “WHAT YOU MUST TELL US”. Relevantly, those details include:
Going Outside Australia
If you plan to travel outside Australia, you must let us know within 14 days of making the decision to go. Please check with us to make sure of your entitlements during your absence. You may not be entitled to your pension or some of the additional payments for the period you are away. If you do not advise Centrelink of your departure, your payment may be stopped while you are overseas.
On 19 July 2005, Mr Twentyman departed Australia. He returned on 16 August 2005. He departed Australia again on 22 August 2005 and returned on 13 November 2005.
On 26 September 2005, the CSP recorded that during the “mlr” investigation, Centrelink had received a tip off “regarding customers regular o/s trips … and will start rvw asap”. The investigation was undertaken by the fraud team. The decision was made on that day to suspend Mr Twentyman’s DSP. On 11 October 2005, Mr Twentyman called Centrelink from Thailand, about the suspension of DSP. The CSP advised Mr Twentyman that they had received information from “dimia” showing that he had left Australia five times since November 2004 and that he had failed to advise Centrelink. They needed information about his overseas visits including how and where he gets his money for his trips, whether he is running a business or employed and where. He was also advised that his DSP would not be restored until that information was received and he may have overpayments for the periods he was overseas. Further, he was advised that there was a possibility that he would be prosecuted, if found to have acted fraudulently.
Mr Twentyman said during that conversation that:
·“… it wasn’t centrelink’s business when he went o/s” and what he did there.
·When he was told that he has to advise Centrelink prior to leaving Australia, he said that he is on DSP “& he can go and come as he pleases and does not have to answer to any authority”.
·When told that that was not correct, Mr Twentyman said that he had asked friends who said that it was “ok to go o/s and not tell centrelink”.
·When asked why he did not ring Centrelink directly, Mr Twentyman said that he “trusts his friends”.
·He had set up a business that had been running for two months but it was not making any money. He refused to explain how he had purchased it or what type of business it was.
·He would not answer any more questions on the ground that he might incriminate himself.
·He had borrowed the money from his ex-girlfriend but she would not verify that.
·He denied having travelled overseas five times since November 2004, until advised that his passport showed the dates of his travel, and then said that he had forgotten.
·Customs was doing the same thing and harassing him, questioning why he was going in and out of Thailand.
·When asked if he was in Thailand he said yes. When asked why he had not said that he was calling from Thailand, Mr Twentyman said that he did not want the person to know.
The conversation took place during four telephone calls because Mr Twentyman “would keep hanging up and then calling back”.
Also on 11 October 2005, Centrelink received information from Department of Immigration records that Mr Twentyman had departed Australia on 22 August 2005.
On the same day, Centrelink wrote to Mr Twentyman at his recorded postal address asking him to contact them if the information that he had departed Australia on 22 August 2005 was incorrect. It also stated that payments may stop if he could not be contacted.
Centrelink sent a second letter to Mr Twentyman at his recorded postal address on 11 October 2005. Relevantly, it stated that his pensioner concession card was valid until 21 August 2005 and requested him to destroy the card “immediately after this date”. It stated that “This is an information notice given under the social security law”.
Under the heading “Customers Overseas”, the letter stated:
If your travel plans change and you no longer intend to return to Australia on the date you advised you must tell us.
You must tell us when you return to Australia or if you go to another country.
On 1 November 2005, Mr Twentyman again called from Thailand asking about the cause of the investigation. He provided information about his business. It commenced in August 2004. During the last three months he had only one helper in August and none after that. He runs a laundromat using a voucher system. As the business is not making money, he was entitled to assistance. He was advised to write to Centrelink about his concerns and bring all necessary documents about his business so a “proper decision can be made out his affairs” when he next comes back. “The call was then terminated suddenly. Cus did not call back.”
On 14 November 2005, Centrelink received information from Department of Immigration records that Mr Twentyman had returned to Australia on 13 November 2005.
On 17 November 2005, Mr Twentyman called Centrelink and advised that he was back in Australia and was prepared to come for an interview with “all his paperwork”, he “has stopped trading in Thailand but his business is still registered though his electricity and water has been cut-off.” He was unsure whether he would return to Thailand. He still had friends there to visit and did not intend to do business there. Mr Twentyman was advised that a particular individual would invite him to an interview. He was worried that that person may not deal with him fairly. He was advised that another officer would be present and “accepted that arrangement”.
Mr Twentyman departed Australia on 8 December 2005 without notifying Centrelink, having been reminded of his obligation to do so during the conversation on 11 October 2005.
The cancellation decision was made on 12 December 2005. A letter notifying Mr Twentyman of that decision was dated 4 February 2006 and addressed to his recorded postal address.
The investigation continued throughout 2006. Centrelink sent Mr Twentyman a letter dated 7 August 2006 to his recorded postal address, inviting him to an interview on 21 August 2006 and requesting that he provide certain financial records, including details of how he afforded to travel overseas regularly and why, and information about borrowings and contact details for each person from whom he had borrowed money.
Mr Twentyman was spoken to “at some length” on 30 August 2006. He was advised that the investigation may take some time as “he did not appear to be co-operative with providing information”. When asked how he had survived financially during the nearly 12 months since the suspension decision, Mr Twentyman said that he had some money saved and friends helped out. He said that he had been to Thailand about five times during that period. He would not say how long his trips had been but said that friends had paid for his airfares so he could have a holiday. After “much discussion”, Mr Twentyman did talk about his Laundromat business, which no longer operated and made less than $100 in revenue, and said that “he didn’t tell Centrelink because it was really none of our concern.” He said that the officer could speak about the business with his solicitor, who was in Thailand, but only provided that person’s first name and no contact details. He asked for the person conducting the investigation to be removed. He was advised that the officer could see no conduct by that person that would warrant removal.
Mr Twentyman did not attend a scheduled interview on 7 September 2006.He did contact the Lakemba Centrelink office on 23 October 2006. He inquired about the ongoing investigation and was seeking to reclaim his DSP payments. He was advised that he could attend his local Centrelink office to test his eligibility and that there were a number of questions he still had to answer and that as he had failed to attend an interview, he would be sent a written questionnaire.
During the course of that conversation, Mr Twentyman demanded that his DSP be backpaid from when he returned from overseas in November 2005. When asked about his three trips overseas since November 2005, totalling six months, Mr Twentyman stated that it was none of Centrelink’s concern and the officer had no right to question him about it because he was not on Centrelink payments at that time. He argued that all of his 18 trips overseas since 2002 except one, were for holidays paid by friends and one was for the business which then shut down. He became angry and aggressive and said it had taken them too long to find out that he had been going overseas. When reminded that if he had advised Centrelink as he should have it would not have happened, he claimed to have never received any letters from Centrelink. He was unwilling to provide his current residential address, saying that he was staying with friends.
Mr Twentyman was sent a questionnaire on 24 October 2006 which requested he return the completed document within 14 days of receiving it. He had failed to return it by 20 December 2006. The investigation was finalised and a debt for overpayment was raised. A letter dated 9 January 2007 was sent to Mr Twentyman. It stated that because he had travelled overseas 15 times between 20 March 2002 and 25 September 2005 “you were not entitled to receive” DSP during those periods. It stated that he been overpaid $16,672.98 and Centrelink was required to recover that amount.
On 16 January 2007 Mr Twentyman contacted Centrelink and said that he had received his debt notice for periods he was overseas and wanted copies of dates and amounts he was paid for those periods.
Mr Twentyman began receiving Newstart Allowance (NSA) on 3 January 2013.
On 8 January 2013 Mr Twentyman applied for DSP. On 24 October 2013, the ARO affirmed the refusal decision made on 13 January 2013, finding that Mr Twentyman’s condition rated only 10 points. The ARO noted that:
·Mr Twentyman received no social security entitlements between 26 September 2005 and 2 January 2013 and made in excess of 20 trips overseas.
·Mr Twentyman said how he supported himself during the preceding eight years was none of the ARO’s business but when the relevance of that information was explained, said that friends supported him.
In 2013 Mr Twentyman also sought review of the 9 January 2007 debt decision by an ARO. He was successful. On 7 August 2013, the ARO held that Mr Twentyman remained an Australian resident between 20 March 2002 and 25 September 2005 and had complied with the relevant portability periods. Therefore, there was no debt and the money recovered from him, should be refunded.
Conclusion
The Tribunal notes that s 80 of the Administration Act is a mandatory provision and s 81 is a discretionary power.
The Tribunal finds that the cancellation decision was the correct or preferable decision. When that decision was made, Mr Twentyman had departed Australia three times without complying with the notice issued pursuant to s 68 of the Administration Act dated 21 April 2005 requiring him to advise Centrelink within 14 days of making the decision to travel outside Australia. He had departed on 19 July, 22 August and 8 December 2005. During the telephone conversation on 11 October 2005 he had been reminded that he had to advise Centrelink prior to leaving the country and he implicitly acknowledged that he knew that but preferred to follow the advice of his friends.
The Tribunal does not consider Mr Twentyman’s evidence reliable about what happened more than 12 years ago. For example, it does not accept his evidence that Centrelink told him on 1 March 2002 that he did not have to advise when he travelled overseas. The Tribunal finds that Mr Twentyman has “recalled” that date based on the travel records in the T documents that show that he first left Australia on 2 March 2002.
Further, the letters he provided after the hearing dated 7 and 18 March 2002 do not support his claim. Both letters include notifications to customers overseas, that they must tell Centrelink if their plans change and they no longer intend to return to Australia on the date they had advised Centrelink. The implications are, firstly, that Mr Twentyman had advised Centrelink that he was planning to travel overseas, and secondly, customers do have to tell Centrelink about their plans to travel overseas. Otherwise, Centrelink would not know that the customer was overseas and therefore request notification of a change in the details provided. The letter to Mr Twentyman dated 11 October 2005 included the same wording. At that time, Centrelink knew he was overseas because of the telephone conversation on that day.
Because the Tribunal does not accept that Mr Twentyman’s evidence is reliable, it does not accept his evidence that he did not receive the letter dated 21 April 2005.
Each of two 2002 letters and the 21 April 2005 letters included a statement to the effect that it was an information notice given under the social security law, that is, given pursuant to s 68 of the Administration Act.
The Tribunal does not accept that the letter dated 21 April 2005 was not delivered. It was sent to the “postal” address recorded in Centrelink records. The Tribunal finds that the letter was sent by pre-paid post to the address provided by Mr Twentyman for the purpose of receiving mail from Centrelink.[12] Evidence of non-receipt of the notice, even if accepted, is not evidence of non-delivery.[13]
[12] Sections 28A and 29 of the Acts Interpretation Act 1901.
[13] Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870 (10 October 2006); Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.
When the cancellation decision was made, further events described above had occurred. Mr Twentyman’s actions and attitude had shown that he was not co-operating with the investigation of his affairs. By 12 December 2005, he had not been receiving DSP for three months and again was able to afford to travel overseas. His departure only reinforced the concerns about his financial resources and his entitlement to DSP.
The Tribunal does not accept that Mr Twentyman had co-operated with Centrelink’s investigation as of the date of the cancellation decision or thereafter. He provided no documentation or information corroborating his claims about his business or friends supporting him financially. Centrelink was not unreasonable in requiring corroborative evidence of his claims. If he had co-operated, before or after the cancellation decision, the outcome for him may have been very different.
In making the above findings, the Tribunal has taken into account Mr Twentyman’s medical condition but does not accept that is a satisfactory explanation for his failure to co-operate with Centrelink. Mr Twentyman believed he was entitled to DSP and resented any interference from Centrelink.
The Tribunal accepts that care must be exercised before deciding to cancel social security entitlements. However, that must be balanced against the public interest in ensuring accountability in the social security system and the obligations the law places upon social security recipients to comply with lawfully issued notices.[14] Unfortunately, Mr Twentyman did not appreciate that he had such obligations.
[14] Fahmy at [43].
The cancellation decision was rational and proportionate in the circumstances.[15]
[15] Op cit at [35] and [38].
For those reasons, it is appropriate to exercise the discretion conferred by s 81 of the Administration Act and cancel Mr Twentyman’s DSP with effect from 26 September 2005.
Decision
The Tribunal affirms the reviewable decision.
I certify that the preceding 82 (eighty two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
................................[sgd]........................................
Associate
Dated: 5 February 2018
Date of hearing: 20 September 2017 Date final submissions received: 3 October 2017 Counsel for the Applicant: Mr J Michie Solicitors for the Respondent: Mr S Davidson, Department of Human Services
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