Wolff and Secretary, Department of Employment and Workplace Relations
[2006] AATA 173
•20 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 173
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/530
GENERAL ADMINISTRATIVE DIVISION )
Re RONALD WOLFF Applicant
And
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONSRespondent
DECISION
Tribunal Dr EK Christie, Member Date20 February 2006
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto the Tribunal decides that Mr Wolff is entitled to Newstart Allowance for the period 1 January 2005 to 27 January 2005. This means that Mr Wolff’s application for review is successful.
..................Sgn..................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – allowable absence from Australia - acute family crisis – family member – father-in-law - Words and Phrases: ‘family member’, ‘critical illness’
Social Security (Administration) Act 1999 s 110
“Act of Grace Payments” Scheme (Part 3, Chapter 9)
Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] 124 FCR 316Re Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431
Hague and Secretary, Department of Family and Community Services [2005] AATA 153
Lesic and Secretary, Department of Family and Community Services [2002] AATA 651
Bitar and Secretary, Department of Family and Community Services [2003] AATA 64
Secretary, Department of Family and Community Services and Markovic [2002] 70 ALD 564
Dyson Holdings Ltd v Fox [1976] QB 503
Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705
Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082WRITTEN REASONS FOR ORAL DECISION
28 February 2006 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 6 July 2005 in which the SSAT decided to affirm a Centrelink decision to recover a newstart allowance debt of $686.34 for the period 1 January 2005 to 27 January 2005.
2. In its Reasons for its decision, the SSAT concluded:
§“In Mr Wolff’s case there are no circumstances that could be said to lead to an unjust or unintended outcome. Mr Wolff travelled to New Zealand while in receipt of newstart allowance without informing Centrelink or inquiring if he was entitled to payment while absent from Australia. He didn’t go for a permitted purpose and as a consequence he was not entitled to receive part of the payment that he did thereby leading to the incurring of a debt to the Commonwealth. That is the natural and intended consequence of receiving payments of social security that a person is not entitled to and there is nothing in Mr Wolff’s case that would change that outcome or make it desirable to waive the debt. It will therefore have to be repaid.” [T2, Folios 10, 11]
§That it was not in dispute that the reason for Mr Wolff’s visit to New Zealand was to visit his father in law that is his wife’s father. [T2, Folio 9]; and
§That Mr Wolff did not tell Centrelink that he was going overseas [T2, Folio 9] from 1 to 27 January 2005.
3. The parties initially consented that the application for review be decided on the papers but the respondent subsequently withdrew their consent and sought the matter be heard at a hearing.
4. 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 three recent statements filed by Mr Wolff on 11, 28 and 29 September 2005, as well as Centrelink documents relating to a “Newstart Payment Application”, “Work Agreement” and “Work Details” filed by the Respondent on 15 September 2005 and 30 November 2005.
Issues To Be Decided
5. The only issues for the Tribunal to decide were:
(i) whether Mr Wolff was qualified to receive newstart allowance for the period that he was absent from Australia (1-27 January 2005); and if not the case
(ii)whether the debt due to the Commonwealth could be waived in part or in full under the “administrative error” or “special circumstances” provisions of the Social Security Act 1991 (the “Act”).
History
6. The following facts contained in the decision of the SSAT summarises the history of how the problem arose [T2, Folio 4]:
§“Mr Wolff was receiving newstart allowance. He was not in Australia in the period 1 January 2005 to 27 January 2005 because he travelled to New Zealand.
§There is no evidence that he notified Centrelink prior to his departing. In the period 1 to 27 January 2005 he was not a resident of Australia. In addition the purpose of Mr Wolff’s visit to New Zealand did not meet the criteria of acute family crisis specified in 1212A as a reason for newstart allowance still to be paid to a person while outside Australia.
§Mr Wolff was not qualified to receive newstart allowance in the period he was absent from Australia. He received $686.34 in that period. This amount is a debt to the Commonwealth that has to be repaid.”
Facts
7. On the basis of the evidence before it, the SSAT made the following findings of fact [T2, Folios 6, 7]:
§“Mr Wolff was in receipt of newstart allowance when he travelled to New Zealand on 1 January 2005.
§Mr Wolff was absent from Australia until 27 January 2005.
§Mr Wolff travelled to New Zealand to visit his father in law who had a serious accident in November 2004.”
8. The evidence Mr Wolff gave to the SSAT can be summarised as follows [T2, Folios 5, 6]:
“6.In his written submission dated 20 June 2005 Mr Wolff made the following submissions in relation to his appeal:
§ He is 55 years of age.
§ From October 2004 he was enrolled in an approved Centrelink study program through the job network system. The study was for the Legal Practitioner’s Admission Board so he could be admitted in NSW as a solicitor. The study lasted until March 2005. During January 2005 he was studying fulltime and was not required to make the usual number of job search contacts but was required to contact his job network member monthly.
§ In November 2004 Mr Wolff’s father in law, who lived in New Zealand, sustained a broken neck in a fall. He was hospitalised and then returned home. In January 2005 Mr Wolff and his family decided to go to New Zealand to visit his father in law. They were away from 1 to 27 January 2005.
§ Mr Wolff had no active job search requirements at the time. He took his study with him and continued to study and do assignments while away.
§ His father in law is a close family member although Centrelink does not accept this. Mr Wolff went on to develop [h]is argument in this regard quoting United States case law.
7.Mr Wolff also argued that his father in law’s condition after his fall amounted to an acute family crisis as defined in the Social Security Act 1991 although this is not accepted by Centrelink either.
8.As Mr Wolff said, the facts in this case are not really in dispute. There is no dispute about the fact that his father in law, who was 80 at the time, fell in November 2004 and sustained injuries to his neck. Nor is there any dispute that Mr Wolff and his family visited his father in law in New Zealand between 1 and 27 January 2005. Mr Wolff accepts that he didn’t tell Centrelink he was leaving Australia prior to his departure. Mr Wolff’s father in law died in 2005. Whether his death was connected to the injury sustained in the fall in November 2004 is not known as there is no evidence on the point before the Tribunal.
9.In relation to Mr Wolff’s obligations to seek work at the time he was absent from Australia, the Tribunal has obtained a copy of his Preparing for Work Agreement from Centrelink. The agreement was negotiated on 28 October 2004 and included Mr Wolff’s job search plan attached to the agreement. This plan set out the activities Mr Wolff was required to undertake. They included:
§ From 28 Oct 2004 to 28 Apr 2005 to undertake 4 job search contacts per fortnight and record the job contacts on my application for payment forms. These job search contacts will include all types of suitable work including part time, casual and full time.
§ Check Job Search daily from 28 Oct 2004 to 28 Apr 2005.
§ Check newspapers and apply for suitable jobs from 28 Oct 2004 to 28 Apr 2005.
§ Attend interviews with Tweed Recruitment to review job search progress and/or JSP on 11 Nov 2004, 25 Nov 2004 and 9 Dec 2004.
§ Commence fully participate and complete Intensive Support customised Assistance activities with Tweed Recruitment by 28 Apr 2005.
§ Other measures complete work journal and bring to interviews from 28 Oct 2004 to 28 Apr 2005.
10.The agreement indicates that Mr Wolff was not exempt from job search requirements because of full time study. There is no requirement to study at all in the agreement. He must continue his job search activities as set out in the plan and must undertake four job search contacts per fortnight in the period 28 October 2004 to 28 April 2005. This included the period when he was absent from Australia. It is clear that Mr Wolff couldn’t comply with his preparing for work agreement during his absence in New Zealand.”
9. Following the SSAT decision, Mr Wolff provided further information to the Tribunal in three statements filed in November 2005. The information contained in these statements raises the following new facts, that may be relevant, and may be summarised as follows:
(a)Mr Wolff’s contention that the term “father-in-law” was a “close relative” and came within the statutory definition of “family member” when due recognition was given to custom and tradition and the pressure of factors that indicate a closely knit family. In Mr Wolff’s case, he states that it is relevant that:
(i)he lost his natural father in 1998;
(ii)he had a close relationship with his father-in-law during life – as can be adduced from the fact that, over time, his father-in-law provided him with financial and personal advice, they spoke to each other regularly [at least twice weekly] on the telephone;
(iii) had provided him with mortgage repayments relief; and
(iv)Mr Wolff and his family frequently travelled to New Zealand to see his father-in-law.
(b)That he travelled to New Zealand in January 2005 for compassionate reasons to visit his 80 year old father-in-law who had broken his neck following a fall in November 2004 and subsequently died two weeks after their visit [in February 2005]. During their visit in New Zealand, his father-in-law was in a neck brace and in bed most of the time [T22, Folio 49].
(c)That he challenged the factual basis that he had failed to notify Centrelink of his absence from Australia in January 2005. He states that he had been told by Job Network that he was not required to actively seek work during the times he was undertaking full-time legal study by correspondence. This course had been approved by Centrelink and paid for by Job Network in October 2004. In any event, he states that he still took steps to search for job contacts whilst in New Zealand; and
(d)Whilst there may have been some human oversight on his part, he had not set out to intentionally defraud the Commonwealth.
Oral Evidence Of Ronald Wolff: Tribunal Hearing, 20 February 2006
10. Mr Wolff and his wife were married in 1998. From the time of their marriage, they received constant support, in many ways, from his late father-in-law. This included payment of the deposit for the mortgage on their home in Byron Bay as well as paying the mortgage repayments over an extended period of time and acting as a guarantor for their home loan.
11. His late father-in-law had a business which operated in New Zealand and Australia so that he travelled between both countries. Regardless of the country in which his father-in-law resided, they kept in constant weekly telephone contact - as well as meeting and sharing Christmas in Australia each year.
12. Mr Wolff described his late father-in-law as a “tough old bird”. Not- withstanding his age (79), he said that he was a robust, active man – until the time of his accident in October 2004 when he broke his neck. From this time his mobility, behaviour and general activity declined markedly because of his broken neck.
13. It was at this time he was informed that his late father-in-law would not travel to Sydney to share in the family Christmas – a regular family event, that he first became aware of how potentially serious the injury had become. As a result, his wife and he made an “on the spot” decision, around Christmas 2004, to travel to New Zealand on 1 January 2005 to see his father-in-law.
14. On arrival in New Zealand he said that he found his late father-in-law to have become “humbled and weak” and to have lost his spirit, following the accident. He said that it was “sad to see him” in this state. He stated that they had travelled to New Zealand as they cared about their late father-in-law. However, on arrival, they ended up caring for him because of his medical state. His father-in-law died a few weeks after they had returned to Australia.
15. Mr Wolff acknowledged that his late father-in-law had periodic independent nursing care following the period he was discharged from hospital with his broken neck. This periodic nursing care continued during the period of his visit to New Zealand in January 2005.
16. Mr Wolff acknowledged that because of privacy law he could not access hospital records to obtain medical history in order to find the cause of the death of his late father-in-law. He had been informed by his brother-in-law that his late father-in-law suffered from “internal bleeding and nerve damage in the neck”, which was believed to be complications from his broken neck.
17. His late father-in-law lived alone; his wife had pre-deceased him. He had no relatives in New Zealand. All of his friends of similar age had passed away.
18. Mr Wolff described the role of his wife and himself as that of being key players in providing emotional support for his late father-in-law. He cited, as examples, their constant weekly telephone contact as well as support they provided him at difficult periods in his life e.g. following a decision to close down his business in New Zealand because of concerns that he was being “cheated” by two of his key company employees. In this situation, his father-in-law had no one else to turn to for emotional support other than Mr Wolff and his wife, primarily.
Statutory Requirements and Legal Principles
19. The role of the Tribunal is to decide whether the decision in this application for review is the correct or the preferred one by examining the factual evidence against the statutory requirements and related legal principles arising from case law. The Tribunal undertakes this role in regard to;
(a)Newstart allowance, “acute family crisis” and “family member” provisions and;
(b)the “administrative error” and “special circumstances” provisions of the Social Security Act 1991.
20. Newstart allowance is only payable to a person when absent from Australia in limited circumstances. These circumstances are set out in part 4.2 of the Act. In particular section 1217 deals with the periods (the “portability periods”) in which newstart allowance is payable for specified absences (“allowable absences”).Essentially the Table at the end of section 1217 sets out:
(a) the social security payments that are portable,
(b) the allowable absences when the payment is portable; and
(c) the period for which payments are portable.
21. The following issues are relevant in this regard:
(a)Newstart allowance, “acute family crisis” and “family member” provisions [Column 4]; and
(b)Newstart allowance and “compliance with Newstart Activity Agreement” [Column 3].
22. In the event, Mr Wolff does not satisfy either of the Column 3, 4 statutory requirements, a debt is due to the Commonwealth. The Tribunal would then proceed to consider whether there is a basis for waiver of the debt under the “administrative error” or the “special circumstances” provisions of the Social Security Act 1991.
§ Newstart Allowance, Acute Family Crisis and Family Member
23. Under Column 4, a temporary absence from Australia can still result in payment of Newstart allowance (for a maximum period of absence of 13 weeks) – provided that it is for one of the following purposes:
“(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.”
24. The purpose that Mr Wolff argues applies in his case is purpose (b), to attend an acute family crisis.
25. Section 1212A defines acute family crisis for the purpose of Part 4.2 of the Act. It says:
“1212A For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b)for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c)for a purpose relating to the death of a family member; or
….”
26. In Mr Wolff’s case, the purpose of visiting his late father-in-law relates to his being “critically ill”.
27. Moreover, for section 1212A to apply, Mr Wolff’s late father-in-law must come within the statutory meaning of “family member” as defined in section 23(14):
“23(14) For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):
(a) the partner, father or mother of the relevant person;
(b) a sister, brother or child of the relevant person;
(c)any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).”
28. The Tribunal has considered the statutory meaning of “acute family crisis” in its decision-making process:
§ In Re Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431 the applicant travelled to Syria to see his mother who was suffering from breast cancer. The Tribunal concluded that the “acute family crisis” test was not met because the applicant’s “mother was able to travel and appeared to him in good health. She was not hospitalised and was being treated by a general practitioner in a country other than her own [Iraq]. She was able to stay away from her home for a period of two months. These are not health circumstances that could be described as critically ill….”;
§ In Hague and Secretary, Department of Family and Community Services [2005] AATA 153 the Tribunal concluded that the applicant’s travel to Bangladesh to see his wife who was being treated for depression – but no longer hospitalised, was not a “critical illness”;
§ In Lesic and Secretary, Department of Family and Community Services [2002] AATA 651 the Tribunal concluded that the applicant’s travel to the United Kingdom for the purpose of taking his father-in-law’s ashes to the United Kingdom did not constitute an “acute family crisis”. The Tribunal then made the observation that “the definition of acute family crisis relates to critical family events which are unexpected and are of such urgency that they require immediate action or attention.” However, the Tribunal provided no authorities or principles of statutory interpretation to support this observation;
§ In Bitar and Secretary, Department of Family and Community Services [2003] AATA 64, the Tribunal concluded that the applicant’s travel to Lebanon to attend to his seriously ill brother, who subsequently passed away, constituted an “allowance absence” as it was a temporary absence to attend an acute family crisis.
29. The Tribunal next considers the meaning of “family member”.
30. An example of the discretion under s 23(14)(c) being exercised is the decision in Secretary, Department of Family and Community Services and Markovic (2002) 70 ALD 564. The Tribunal considered the meaning of “family member” under section 23(14)(c) of the Social Security Act to apply, in the following fact situation:
·The respondent was born in Bosnia and, as a member of a close-knit family, grew up some 150 yards from his two male first cousins. At the age of 21, he migrated to Australia in 1970 with his wife. His cousins also migrated to Australia. Following a back injury in 1987, the applicant visited his cousins in Coober Pedy in early 2001 and eventually moved there for reasons including to undertake paid employment and to be near his cousins.
In this case the SSAT was satisfied that the nature of the respondent’s relationships with his cousins, coupled with the cultural connections he shared in the community, satisfied the definition of “family member” under section 23(14)(c). Senior Member Purcell, in her reasons for decision, agreed with the SSAT’s reasonings, inter alia, that the respondent moved to live near his “family members”.
31. Domestic and international courts and tribunals have had occasion to consider the scope of the meaning of the term “family” when it has appeared in statutes and conventions. This has become necessary to accommodate the emergence of a multiplicity of forms of family such as the “nuclear” and extended families…[1]” In Dyson Holdings Ltd v Fox [1976] QB 503, The English Court of Appeal extended the scope of the term “family”. At 511, James LJ observed:
“[m]any changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word ‘family’ is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony.”
[1] Hodgson D ‘The International Recognition and Protection of the Family’ (1994) Australian Journal of Family Law, 229-236 at 223
32. Later, in Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705, the English House of Lords reviewed authorities as to the meaning of the term “family”. At 736, Hutton LJ made the following observation:
“Accordingly for a claimant to be a member of the tenant’s family there must be a relationship to the tenant by marriage or blood or adoption, or a link which resembles such a relationship and which can be broadly recognised as such, and in that case it was not sufficient that there was a loving, caring and supportive relationship between the young and man and the tenant Lady Salter” [Emphasis added].
33. In Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1082, a case decided by the Tribunal, Deputy President Jervis followed the meaning of “family” as applied in Dyson’s case. The applicant [Mr Bustin] in this case was an American citizen married to an Australian citizen. Mr Bustin had been refused a spouse visa because of a finding by the delegate that he did not pass the character test. DP Jervis concluded (at para 55):
“I accordingly think that Mr Bustin has family ties to the Australian community, and in considering the extent of disruption to those ties I may consider the effect on Mrs Bustin, her parents and other close relatives if the visa is not granted.”
And later (at para 65):
“I find that a decision to refuse the visa would be disruptive to Mrs Bustin’s immediate family”.
34. In arriving at his conclusions DP Jervis concluded the extent of the sources of emotional support provided by the applicant, Mr Bustin, and his wife to Mrs Bustin’s mother (i.e. the applicant’s mother-in-law) was a significant consideration in this regard.
35. The Tribunal had applied the above case law interpretations to the facts of Mr Wolff’s case.
Consideration of the Issues
36. The Tribunal has carefully all of the evidence and information before the Tribunal in terms of the requirements imposed under the legislation (the Social Security Act 1991) and the legal principles that have been applied from “similar fact” cases.
37. It is clear that the Tribunal in deciding whether Mr Wolff satisfies the requirements relating to the meaning of “acute family crisis” and family member must do by examining the factual evidence on a case by case basis.
38. The first issue for the Tribunal to decide whether Mr Wolff travelled to New Zealand for the purpose of “attending to an acute family crisis”. This phrase, i.e. Mr Wolff’s factual situation, turns on whether his late father-in-law was “critically ill”.
39. The technical meaning of the term “critical illness” can be constructed from Blackiston’s “Gould Medical Dictionary” (4th Edition):
·“ill”: 1. Not healthy; sick; indisposed 2. An ailment, illness, disease or misfortune.
The factual evidence before the Tribunal establishes that Mr Wolff’s late father-in-law suffered an illness; and
·“critical”: 1. Pertaining to or characterised by a crisis; ….4. Involving grave uncertainty or risk, perilous.
From the factual evidence it could be inferred that Mr Wolff’s late father-in-law’s illness was critical as it was associated with risk or grave uncertainty – even perilous (see paras 8, 12, 13, 14, 15, 16).
40. Furthermore, the Tribunal considers the following case authorities on “acute family crisis”, in relation to Mr Wolff’s factual situation, and concludes:
(a)It can be distinguished from Al Umari’s case as the applicant’s mother in this case was able to travel and appeared to the applicant to be in good health;
(b)It can be distinguished from Hague’s case in terms of the uncertainty and risk associated with the condition i.e. depression –v- a broken neck.
(c)It can be distinguished from Lesic’s case in terms of the reason for travel i.e. taking his father-in-law’s ashes to the UK – a situation not involving any grave uncertainty or risk. Moveover, the Tribunal has already commented on the limitations of this decision in constructing a statutory phrase without any recourse to authorities or principles of statutory interpretation;
(d)However, the Tribunal concludes that it is reasonably analogous with the fact situation in Bitar’s case.
41. For the above reasons [paras 39, 40], the Tribunal concludes that the purpose of Mr Wolff for travelling to New Zealand was to visit his late father-in-law who was critically ill.
42. The next issue for the Tribunal to decide is whether Mr Wolff’s late father-in-law was a “family member”.
43. Dyson’s case observes that the popular meaning of “family”, today, is not restricted to blood relationships and those created by the marriage ceremony. Fitzpatrick’s case observes that there needs to be a link which resembles a family relationship – and can be recognised as such. Bustin’s case established such a link through an assessment of the emotional support, and the reliance on such support, by the person of whom the question is asked as to their being a “family member”.
44. Based on the information and evidence before the Tribunal [see paras 9(a,b), 10, 11, 14, 17, 18), the Tribunal concludes that:
(a)Mr Wolff (and his wife) were key sources for providing emotional support to his late father-in-law;
(b)that this support was maintained over time and in periods of significant difficulty in the life of his late father-in-law;
(c)Mr Wolff (and his wife) were both relied upon by his late father-in-law for emotional support. It is also significant that Mr Wolff’s late father-in-law was elderly, lived alone in New Zealand, without any relatives or friends of a similar age.
45. Accordingly, for all of the above reasons, the Tribunal concludes that the discretion under s 23(14)(c) be exercised; in the factual circumstances of this case, Mr Wolff’s late father-in-law meets the statutory requirements of being a “family member”. That is, Mr Wolff should be treated as a relation of his late father-in-law in accordance with s 23(14) of the Act.
46. For all of these reasons, the Tribunal sets aside the decision under review and in substitution finds that Mr Wolff was entitled to Newstart Allowance for the period 1 January 2005 to 27 January 2005.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Mr Jeff Mills
Legal Research OfficerDate/s of Hearing 20 February 2006
Date of Decision 20 February 2006
Date of Written Reasons 28 February 2006
The Applicant was self represented
For the respondent Ms S Dole, Departmental Advocate
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