Weerakoon and Secretary, Department of Employment and Workplace Relations
[2007] AATA 50
•17 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 50
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/638
GENERAL ADMINISTRATIVE DIVISION ) Re ASELA WEERAKOON Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date17 January 2007
PlaceCoolangatta
Decision 1. The decision under review is affirmed. This means that Mr Weerakoon’s application for review is unsuccessful.
2. The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances.
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Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – request for further information – entitlement to Newstart Allowance arrears - date of effect of SSAT decisions
Social Security (Administration) Act 1999 ss. 107, 152
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Department of Employment and Workplace Relations and Mitchell [2006] AATA 804
Re Frost and Secretary, Department of Social Security (1994) AATA 10360
WRITTEN REASONS FOR ORAL DECISION
17 January 2007 Dr EK Christie, Member 1. This is an application for a review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 25 August 2006 in which the SSAT decided to affirm a Centrelink decision that Mr Weerakoon was not entitled to payments of a newstart allowance [“NSA”] for the period 28 May 2004 to 15 July 2004.
2. At the hearing, the applicant represented himself. Mr C Keim, a departmental advocate, represented the respondent.
3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” Documents (Exhibit 1) and the various exhibits lodged by the parties.
Issues To Be Decided
4. The only issue for the Tribunal to decide was whether Mr Weerakoon was entitled to payment of newstart allowance for the period 28 May 2004 to 15 July 2004 i.e. as an arrears payment.
The Tribunal’s Decision-Making Powers
5. There is only one decision possible – whether Mr Weerakoon is entitled to receive newstart allowance for the period 28 May 2004 to 15 July 2004 as an arrears payment. Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
PRELIMINARY QUESTION OF LAW
6. At the commencement of the hearing, the respondent conceded that the date on which Mr Weerakoon had requested a review of the original decision made on 30 July 2004, was 15 November 2004 – and not 21 December 2004, the date upon which the SSAT had concluded his application for review had been made (Exhibit 1, T2, folio 6).
7. The basis for this concession was that on 25 October 2004 a letter was received from a prospective employer of Mr Weerakoon confirming contact by Mr Weerakoon with respect to employment (Exhibit 1, T34, Folio 65). The Tribunal agrees with the respondent that this letter is sufficient to constitute an “application for review” for the purposes of the Social Security legislation – given that the Tribunal, in the past, has given a broad interpretation for the meaning of application for review: see Re Frost and Secretary, Department of Social Security (1994) AATA 10360.
8. As a consequence, Mr Weerakoon’s application for review on 25 October 2004 was made within 13 weeks of the original ARO decision made on 30 July 2004. The original decision by the ARO stated “we cannot pay you Newstart Allowance because we did not receive the documents we requested from you.” (Exhibit 1, T32, folio 63).
9. As Mr Weerakoon effectively made an application for review within 13 weeks of the original decision, s 107 of the Social Security (Administration) Act 1999 (“the Act”) will not apply to any consideration of the question to pay NSA arrears. The SSAT had only considered s 107 of the Act in the administrative decision that it had made.
10. Accordingly, the relevant dates for consideration of Mr Weerakoon’s application for review, with respect to payment of NSA arrears for the period May 2004 to July 2004, are:
(a)3 July 2006 (the date application to the SSAT was made: Exhibit 2); and
(b)29 August 2005 (the date of the Authorised Review Officer’s decision: T50, Folio 83).
11. The time period between these two dates is greater than 13 weeks. Therefore, s 152(4) of the Act is the relevant provision to consider for Mr Weerakoon’s application for review.
STATUTORY REQUIREMENTS AND LEGAL PRINCIPLES
12. The SSAT conducts reviews of Centrelink decisions in the manner prescribed by Division 3, Part 4 of the Act. Sections 152 and 153 of the Act govern the date of effect of its decision. The former provision applies to all decisions, other than those relating to activity agreements, and so it is the applicable provision in relation to Mr Weerakoon’s application for review.
13. Section 152(3) applies to those matters in which the Social Security Appeals Tribunal varies a decision or sets aside a decision and substitutes a new decision. However, s 152(3) is subject to the application of s 152(4).
14. Section 152(4) has the following elements, which all must be satisfied if Mr Weerakoon is to be entitled to arrears payments of NSA for the period May to July 2004:
(a)a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the decision of the SSAT is:
(i)to grant the person’s claim for a social security payment or a concession card; or
(ii)to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be ; or
(iii)to increase the rate of the person’s social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.”(Tribunal emphasis).
15. The outcome of a successful application under s 152(4) by Mr Weerakoon, i.e. by satisfying all four elements in paragraphs (a), (b), (c) and (d), is that NSA arrears payments could only be made as from the date on which he applied to the SSAT for a review of the decision by the ARO i.e. 11 July 2006. However, the NSA arrears Mr Weerakoon seeks payment for relate to May to July 2004 – a period before 11 July 2006.
16. In the Department of Employment and Workplace Relations and Mitchell [2006] AATA 804, the Tribunal stated at para 57:
“The apparent purpose of the restriction on retrospectivity by virtue of subsection 152(4) of the Administration Act, and of a corresponding restriction in subsection 109(2) in relation to decision of an ARO, is to limit the total liability of the Secretary if a person delays pursuing his or her claim for longer than the periods of 13 weeks referred to in those subsections. Further, the subsections have the effect of requiring persons who are making claims to pursue their rights of review promptly. In the case of applications for arrears of pension, where the pension is later reinstated as occurred in the present case, the subsections operate in the same way as a statute of limitations, and effectively bar the claimant from entitlement.”
CONSIDERATION OF THE ISSUES
17. The Tribunal has carefully considered all of the evidence and information before it in terms of the requirements imposed under the legislation, the Social Security (Administration) Act 1991 and the legal principles that have been applied from “similar fact” cases. Based on the evidence before it, the Tribunal makes the following findings of fact.
18. The Centrelink trigger for the suspension of NSA payments to Mr Weerakoon have their source in a Departmental “Request for Further Information” from Mr Weerakoon. Specifically, a request by the delegate of the CEO of Centrelink for a “Letter from employer re job offer”. (Exhibit 1, T27, folio 58: 15 July 2004). It was because of a “perceived” failure by Mr Weerakoon to provide that further information that led to the suspension of NSA entitlements for the period May to July 2004, as the Request Form contained the following stipulation:
“Failure to provide the information requested within 14 days after this notice is given may result in the rejection/suspension/cancellation of benefit/pension/allowance. This notice is given under social security law.”
19. However, the reality of the situation is that the failure to provide the information requested was beyond the control of Mr Weerakoon as the letter from the employer confirming a job over was delayed because the employer was overseas.
20. On 20 October 2004, Mr Rudi Azzato of A & B Hydroponics International Pty Ltd, 1 Cudgen Road, Cudgen NSW 2498, wrote:
“To whom it may concern
20th October 2004
Dear sir/madam
This is to confirm that Asela Chanakya Weerakoon was to be employed by our company as from 28th May 2004.
Unfortunately at the moment we have been unable to provide this employment due to the fact that our clients (who was to provide this work to our company) had delayed with the project.
I also apologise for this letter being late as I was away overseas on business.”
21. However, whilst these facts explain the delay in a response to a request for further information from an employer of a job offer, there is no discretion under s 152(4) of the Act to apply these facts in relation to any consideration of Mr Weerakoon being entitled to NSA over the period May to July 2004.
22. The application of the law, prescribed under s 152(4) essentially reflects a situation in which should Mr Weerakoon succeed in satisfying all 4 paragraphs of ss 152(4)(a)(b)(c)d), he would still be effectively restricted to payment of arrears of NSA as from the date he applied to the SSAT for a review of the decision by the ARO i.e. 11July 2006. The facts in the letter from A & B Hydroponics International Pty Ltd explaining the delay in providing the information that Centrelink requested, cannot be applied under the Act to vary the date from which NSA arrears could be paid to Mr Weerakoon.
23. The Tribunal finds Mr Weerakoon to be an honest witness and accepts his oral evidence that at all times he had done all “the right things” to comply as a social security recipient. The problem in the delay in the letter sent from a new employer to Centrelink was a situation that arose because of circumstances beyond Mr Weerakoon’s control.
24. For all of the above reasons, the Tribunal concludes there is no statutory basis under the legislation which would entitle Mr Weerakoon to receive newstart allowance for the period 28 May 2004 to 15 July 2004 as an arrears payment.
25. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gave the Tribunal no other option than to make such a finding. There is no discretion in the legislation for the Tribunal to make any other decision based on the proved facts before the Tribunal, as a matter of law.
26. However, the Tribunal does raise for consideration by Mr Weerakoon, the Departmental Policy Guideline “Act of Grace Payments” (Part 3, Chapter 9). The Policy Guideline states that an “Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss”.
27. In addition, the Policy Guideline states that “eligibility for an Act of Grace payment depends on the claimant’s [i.e. Mr Weerakoon’s] factual circumstances and a wide range of matters may be taken into account to determine eligibility. Although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
“a) a person received incorrect advice leading to detriment, but where there is no legal liability or
b) a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable or
c) it is considered desirable to apply the benefits of proposed legislation, or
d) there are other special circumstances where there may be a moral obligation to make a payment.”
28. Mr Weerakoon has contended that the decision under review is unfair (“inequitable”) because he has done everything to meet the Centrelink request for further information made on 15 July 2004.
29. In this regard, the Tribunal concludes there is no question of “defective administration” on the part of Centrelink. Rather, because of circumstances beyond the control of Mr Weerakoon, the request for further information sought by Centrelink – a letter from a new employer (A & B Hydroponics International), was not provided within the stipulated 14 day period. If this had been the case, then the situation Mr Weerakoon has found himself in may not have arisen.
30. The Tribunal make the observation that any decision by Mr Weerakoon to pursue an Act of Grace payment may find the Tribunal conclusions (at paras. 18 to 23) to be relevant considerations – as indeed would any review of information by Centrelink on compliance by Mr Weerakoon with any activity agreement. However, there is no information before the Tribunal in relation to activity agreements.
31. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mr Weerakoon. The process for such a payment is for Mr Weerakoon to make a claim to the Department for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
32. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: …………….
Legal Research OfficerDate/s of Hearing 17 January 2007
Date of Decision Coolangatta
Date of written reasons 5 February 2007
The Applicant represented himself
For the Respondent Mr C Keim, Departmental Advocate
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