Watson and Secretary, Department of Family and Community Services - [2002] AATA 822

DECISION AND REASONS FOR DECISION [2002] AATA 822

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1078

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARY WATSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date20 September 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review

....................(Sgd).....................
Ms J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – preclusion period - move to an area of lower employment prospects – whether applicant had a "sufficient reason" for moving to an area of lower employment prospects – whether applicant has moved "near a family member" – meaning of "near" – meaning of "extreme circumstances"

Social Security Act 1991

Tyne Keelmen v Davison (1864) 16 CBNS 622
McMillan v Barclay Curle & Co Ltd (1899) 2 F (Ct of Sess) 91
Waltons Stores (Interstate) v Maher (1988) 164 CLR 387

REASONS FOR DECISION

20 September 2002 Ms J Cowdroy, Member

This matter relates to an application for review of a Social Security Appeals Tribunal decision dated 16 October 2001 which affirmed a decision of Centrelink to impose a non-payment period of 26 weeks in respect to Mr Watson's newstart allowance.
The matter was heard in Brisbane on 19 August 2002. The applicant appeared and he was represented by Ms B Carter-Nicoll of Counsel, instructed by Ms G Bolton of Welfare Rights. Mr T Ffrench appeared for the respondent.
The T-documents, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were admitted in evidence as Exhibit 1, and further documents marked E2-E6 were admitted into evidence. The matter was decided on the basis of the oral evidence of the applicant, the exhibits, and the written and oral submissions of the parties.
Background to the Application
The respondent had cancelled the applicant's newstart allowance for 26 weeks on the basis that he moved to an area of low employment prospects without a sufficient reason for doing so. That decision was reviewed and affirmed by an authorised review officer on 5 September 2001 and, following hearing on 16 October 2001, the Social Security Appeals Tribunal decided to affirm that decision.
Applicant's Case
Mr Watson produced a statement dated 25 March 2002 to which he referred during his evidence. He moved from Lethridge Park, Sydney to Woolgoolga, near Coffs Harbour on 19 July 2001. Prior to the move, he had contacted Centrelink on about four occasions. The first occasion occurred sometime in May 2001, when he had spoken to an officer at the Call Centre and asked whether it would be "all right" to move to Woolgoolga, as he had a daughter, Amy, living at Inverell. He was told, "fine", "no problems".
Later he attended an interview at the Mount Druitt office of Centrelink where again he asked if he was permitted to move to Woolgoolga without penalty and was told there would be no penalty. He also attended an interview in which he was told that if he continued to produce medical certificates that his newstart allowance would continue. He explained that the medical certificates state that he is incapable of working for more than eight hours per week. He also had other interviews at the Mount Druitt office.
The applicant suffers from bilateral carpal tunnel syndrome. This produces numbness in his fingers and a loss of co-ordination. It limits the type of work he can undertake and the symptoms become more severe when he is required to use his hands for any length of time. He also suffers from arthritis in his foot, a "bad back" and type 2 diabetes mellitus.
The cold weather aggravates the symptoms of carpal tunnel syndrome. He had lived in Armidale at one stage and found the weather very cold. He mentioned that it snows at that location. He has never lived in Tamworth, although he believes that it gets "pretty cool" there.
After speaking to the officer at the Call Centre, he purchased a caravan in Coffs Harbour and placed the van at the caravan park at Woolgoolga. He paid site fees and then returned to Sydney, staying at his parents' house in Sydney for about two months prior to his move to Woolgoolga.
In answer to questions as to the decision to move to Woolgoolga was made, rather than other locations, he said that he had looked through the phone book and had rung a number of caravan parks, inquiring about vacancies. The only park which had an immediate vacancy, was at Woolgoolga. The others indicated that forms would have to be completed, and a response would not be provided as to whether there was a permanent vacancy for about a month.
When he lived at Lethbridge Park, he only saw Amy once per year, because the drive from his residence to Amy's residence at Inverell took eight hours. He would stay for about three weeks. Now that he is living at Woolgoolga, which is a three-hour journey, he visits Amy a "couple of weeks" every month, staying for between a weekend to two weeks at a time. He stays with Amy and her mother. He described his relationship with Amy's mother as "very good friends". Amy also visits Woolgoolga and stays with him for up to a week at a time
Under cross-examination, Mr Watson said that he chose to move to Woolgoolga, which is on the coast, rather than move to an inland area, because the weather is likely to be colder inland than on the coast. His hands are affected by the cold weather. He acknowledged that his statement dated 25 March 2002 makes no reference to the move to Woolgoolga being prompted, even in part, by such considerations and said that he had not thought about that aspect when he made his statement.
When speaking with the Centrelink officers, he had not discussed the distance between Inverell and Woolgoolga, as the issue did not arise. He never realised that when speaking to the Call Centre he could have been speaking to someone located in Tasmania.
He acknowledged being told at a personal interview that there was potential for his newstart allowance being cancelled and that this occurred before he had moved permanently to Woolgoolga. By then, he believed he was committed to move, as he had already purchased a caravan and located it in the caravan-park at Woolgoolga. The only way in which he could extricate himself from that commitment would be by selling the caravan. He said that he always stayed with his daughter for more than one day, as there was no point in travelling to Inverell and back in one day. The shortest time he has stayed is a weekend.
In re-examination, the applicant said that he had recently seen a medical practitioner with whom he had discussed the prospect of a move to Inverell and the doctor referred to the cold weather in that area.
Applicant's Submissions
The applicant conceded that his move to Woolgoolga was one that reduced his employment prospects. However, it was contended that he had "sufficient reason" for the move in that it occurred in order to be "near a family member", namely his daughter. In such circumstances, the newstart preclusion period did not apply.
As a result of the move, it was said, the applicant has more frequent contact with his daughter. Whilst the applicant lived in Sydney, he saw his daughter only once a year. He has previously lived in rural areas and has not found them to be agreeable. Woolgoolga is a coastal town about twenty minutes from Coffs Harbour, Armidale is a one and a half hour drive and Tamworth a two and a half hour drive.
The Tribunal was referred to page 212 of "Words and Phrases" (Exhibit 2). The word "near" was the subject of discussion in Tyne Keelmen v Davison (1864) 16 CBNS, per Byles J at page 622. Byles J took the view that "the word 'near' is not a restraining, but an expanding word, …to be extended so far as to give effect to the intention of the legislature". It was pointed out that the word "near" in s 634(3)(b) of the Social Security Act 1991 ("the Act") is not defined, nor is its meaning discussed in the second reading speech to the Bill.
The respondent's interpretation of the word "near" seeks to restrict it to a notion of it being within a commuting time of ninety minutes. It was not appropriate for the respondent to resort to s 601(2B) of the Act for guidance as to the meaning of the word "near" as that provision relates to what is considered a reasonable distance for a person to travel each way to work. The respondent's argument that if the applicant lives further distant than a ninety minute commuting time it cannot be regarded as "near", is unnecessarily restrictive and should be rejected.
The appropriate approach is that contained in McMillan v Barclay Curle & Co Ltd (1899) 2 F (Ct of Sess) 91, per Lord Adam at page 93, who stated that the "question of whether one place is near another is entirely a question of circumstances, entirely a question of fact, and entirely a matter for the tribunal which determines the claim".
As an additional/alternative submission, the applicant satisfies s 634(3)(d) of the Act in that the move was necessary because of "extreme circumstances". It was contended that the extreme circumstances in this matter are:

The applicant wished to move to be near to his daughter;
He must live in a warm climate, due to his health problems;
He found a caravan park which was willing to accommodate him on the coast;
Centrelink advised the applicant that if he continued to produce medical certificates he could move without prejudicing his continuing entitlement to newstart allowance;
He acted in reliance on that advice;
He purchased a van and located it at the site at Woolgoolga;
At the time he was told that there was potential for cancellation of newstart allowance he had "already moved all his possessions";
Even if he had contemplated not making the move, he could not continue residing in his parents' residence in Sydney as it had been sold and his parents subsequently moved to Woolgoolga.

The principle of equitable estoppel, as expounded in Waltons Stores(Interstate) v Maher (1988) 164 CLR 387 made it inequitable for the respondent to cancel the applicant's benefit for 26 weeks.
Respondent's Case
The respondent disputed that either sub-sections (b) or (d) of s 634(3) of the Act were applicable to the applicant's circumstances. The move to Woolgoolga cannot be regarded as a move which is "near" to the applicant's daughter, nor is it a move to the same "area". All geographical material, including information from the Bureau of Meteorology (Exhibit 5) and local council boundaries (Exhibit 6) indicate that the two locations are in different "areas". Inverell is located in the north east highlands of the New England region, Woolgoolga is on the Pacific coast and is considered part of the Coffs Harbour area.
The applicant never travels to and from Woolgoolga on the same day to Inverell on the basis that it is not practical to do so, the inference being that the locations are sufficiently distant from each other so as not to make them "close" or "near".
It would defeat the purpose of the legislation to classify the word "near" in the manner contended by the applicant. To do so would permit an applicant who moved from Sydney to Bryon Bay who had relatives living in Brisbane to claim that the move was made to be near a family member on the basis that Bryon Bay is near Brisbane. Given that Bryon Bay is less than three hours travelling time by car to Brisbane, to regard that as falling within the definition of "near" would distort the meaning intended to be given to that provision.
The use of s 601(2B) of the Act which provides that a reasonable commuting distance for the purposes of work is ninety minutes each way is appropriate in assessing what is meant by the term "near".
In relation to the applicant's contention that concerns over health issues were part of the reason for the move, the evidence of the applicant is that colder weather climates affect the severity of his carpal tunnel syndrome. However, that issue has not been referred to in his statement dated 25 March 2002 and clearly it did not significantly influence his decision to move to Woolgoolga.
In relation to s 634(3)(d), the indications from Centrelink as to its attitude towards the move were ambiguous to some extent, however, the applicant had a clear indication before he moved that the continuation of his newstart allowance could be in jeopardy. Despite the assertion that the applicant was committed to move to and remain in Woolgoolga by the time he received such advice, it is arguable that the van could not have been removed from its site and relocated.
In summary, the respondent contends that on any reasonable interpretation of the facts and the term "near", the applicant has not moved to be "near a family member who has already established residence in the same area". In relation to s 634(3)(d) of the Act, "extreme circumstances" are not met. Quite apart from the fact that the circumstances which the applicant claims to be "extreme" came into existence after the move, that term is applicable to circumstances which make it imperative for a person to move. The example given of the need to escape domestic violence is indicative of the type of situation envisaged.
Finally, the principles of equitable estoppel have no application in matters to be decided by this Tribunal.
Consideration
It is not in dispute that the move from Lethbridge Park to Woolgoolga was a move that reduced the applicant's employment prospects pursuant to s 634(1) of the Act. The sole issue for the Tribunal is to determine whether the applicant had "sufficient reason".
The term "sufficient reason" is defined in s 634(3) of the Act. It states:
"634(3) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:
(a) moves to live with a family member who has already established his or her residence in that place of residence; or
(b) moves to live near a family member who has already established residence in the same area; or
(c) satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or
(d) satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence)."
The applicant's arguments touched upon sub-sections (3)(b), (c) and (d). Taking these in turn, the applicant's daughter, who for the purposes of s 23(14) of the Act, is a "family member", lives with her mother at Inverell, which is a three-hour drive from Woolgoolga. The terms "near" or "same area" are not defined.
The applicant contended, in effect, that, as the distance required to visit his daughter has been reduced compared to the distance when he lived in Sydney (thus facilitating more frequent access), he is to be regarded as living "near" his daughter who has established residence in the same area. It disputed the respondent's contention that the term "near" should be restricted to a maximum travelling distance involving ninety minutes each way.
I do not consider that it is necessary to resort to other provisions in the Act for guidance in this matter, as it can be decided on the basis of commonsense. The evidence of the applicant is that he selected Woolgoolga as opposed to other locations for a number of reasons. He prefers to live in a coastal area rather than inland, he has had ongoing problems with Amy's mother, his carpal tunnel syndrome produces more severe symptoms in colder weather and that Woolgoolga had suitable accommodation at the time he made his enquiries.
The overall thrust of the applicant's evidence is that he did not give a great deal of thought as to why he chose Woolgoolga, rather than some other location which is closer to Inverell. Ultimately, however, the primary issue is, whether having moved to Woolgoolga, it is regarded as being "near" to Inverell. A return journey of six hours is not by any description "near". The mere fact that the applicant reduced his driving time from eight hours each way to three hours each way does not assist me in determining whether Woolgoolga is "near" to Inverell or whether it is the "same area". Whilst the move places Amy "nearer" to the applicant, "nearer" is not sufficient for the purposes of the Act. It may be that in some remote areas of Australia where housing is scarce and scattered, that a return journey of six hours may be considered "near". Consequently, I am not minded to restrict the term "near" to an interpretation which relies on any specific distance or travelling time. In saying that, I am mindful of the principles outlined in the matter of McMillan that "the question of whether one place is near another is entirely a question of circumstances".
Further, given that Woolgoolga and Inverell are regarded as different areas for the purposes of weather forecasting, local government and electoral districts, I consider that the two areas are not in the same area. Consequently, I am reasonably satisfied that the move from Lethbridge Park to Woolgoolga is not a move that falls within s 634(3)(b).
In relation to s 634(3)(c), whilst it was tentatively suggested that the applicant moved partly because of the benefit of a warm weather climate, as opposed to inland, the evidence on this aspect was vague and I did not understand that the applicant was relying entirely on this aspect. In any event, I am satisfied that the applicant's circumstances do not satisfy s 634(3)(c).
In relation to s 634(3)(d), the applicant argued that there were a number of factors which influenced the applicant to move at that particular time, including the ready availability of accommodation at a suitable caravan park. There was no detailed evidence given on this aspect other than mention of the fact that the applicant had contacted a number of caravan parks to enquire about vacancies. It was inferred that the move was to occur with some urgency and that some parks could not accommodate him for at least a month or more, pending formal application. However, having purchased a van and having established it on a site at Woolgoolga Caravan Park, the applicant then returned to Sydney where he remained for a further two months, before finally moving permanently to Woolgoolga.
Given that scenario, it is difficult to conceive how the move was made because of an extreme circumstance. The "extreme circumstance" to which the applicant's counsel referred, namely the fact that he relied on departmental advice that he would be able to move, had been countermanded by the time the move was made. Whilst it was argued that by the time the applicant received advice that his newstart allowance may be in jeopardy, he was already irretrievably committed to the move, this of itself cannot constitute an extreme circumstance. In any event, I am not persuaded that the applicant could not have made different arrangements in respect to his accommodation, had he chose to do so.
This brings me to the issue of equitable estoppel. That doctrine has no relevance to this jurisdiction. Quite apart from that obstacle, it requires evidence of a particular legal relationship between the parties. This is not the case on the facts before this Tribunal.
Accordingly, the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  19 August 2002
Date of Decision  20 September 2002
Counsel for the Applicant        Ms Carter-Nicoll
Solicitor for the Applicant         Welfare Rights Centre
Solicitor for the Respondent    Mr Ffrench, Departmental Advocate