WVVD and Secretary, Department of Social Services (Social services second review)

WVVD and Secretary, Department of Social Services (Social services second review) [2018] AATA 3150 (31 August 2018)
Division:GENERAL DIVISION
File Number: 2017/7207
Re:WVVD
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:31 August 2018
Place:Brisbane

The decision under review is affirmed.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – whether decision to rejection claim was correct – whether youth allowance payable from an earlier date – whether section 43(6) of the Administrative Appeals Tribunal Act 1975 applies – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Kaley and Secretary, Department of Social Services [2014] AATA 723
Re Suvathi Thiagarajan And Secretary, Department Of Employment And Workplace Relations (2007) 99 ALD 351
SECONDARY MATERIALS
Guide to Social Security Law 2018 (Cth)
REASONS FOR DECISION
Member D K Grigg
31 August 2018
BACKGROUND

On 17 January 2016, WVVD applied for the Youth Allowance.[1] In her claim form, WVVD:[2]
(a)provided her email address and mobile number for the purposes of receiving online letter notifications and electronic messages; and
(b)nominated her mother as a correspondence nominee.
[1]Exhibit 1, T Documents, T4, pages 27 – 31, WVVD’s Claim for the Youth Allowance dated 17 January 2016.
[2] Exhibit 1, T Documents, T4, page 27, WVVD’s Claim for the Youth Allowance dated 17 January 2016.
Upon receipt of WVVD’s application, the Department of Human Services (“Centrelink”) requested that:[3]
(a)WVVD provide certain documentation including payslips, identity documents, an authority to act form, a Mod PC form (a Mod PC form is a private company form which sets out details of a person’s involvement in a private company in the last 5 years), bank statements, and confirmation of her parent’s income; and
(b)WVVD’s mother provide a Mod JY form (a Mod JY form is completed by parents or guardians of a dependent applying for the youth allowance and sets out the parent’s/guardian’s income which is relevant to determining the appropriate rate of payment).
[3] Exhibit 1, ST Documents, ST9, page 52, Centrelink record.
On 31 January 2016, WVVD’s mother provided her income information (Mod JY form) to Centrelink.[4]
[4] Exhibit 1, T Documents, T21, page 74, Centrelink record.
On 16 February 2016, WVVD’s mother provided a statement to Centrelink that a company recorded on her file (“the Company”) had been deregistered and that she does not have, nor has she ever had, any interest in the company.[5]
[5]Exhibit 1, T Documents, T21, page 75, Centrelink record; ST2, page 18, statement of WVVD’s mother dated 16 February 2016.
On 18 February 2016, WVVD provided Centrelink with pay advice slips for her mother, a notice of assessment for the year ended 30 June 2015 and bank account statements as requested.[6]
[6] Exhibit 1, T Documents, ST1 and ST10, pages 1 and 65, Centrelink records.
On 19 February 2016, WVVD provided Centrelink with personal bank account statements and her pay advice slips.[7]
[7]Exhibit 1, T Documents, ST3 and ST10, pages 19 – 22 and 65, WVVD’s mother needs financial information and
Centrelink record.
On 23 February 2016, WVVD’s mother provided a written statement to Centrelink confirming that her income up until 23 February 2016 had been $34,288.25. She explained that from July 2015 her hours had steadily reduced. In January 2016, her work hours stopped completely and she had only been able to pick up a couple of hours of work a week. WVVD’s mother declared that her revised expected income for the year was approximately $55,000 and not $60,000 as previously anticipated.[8]
[8]Exhibit 1, T Documents, T8, pages 36 – 38, Statement of WVVD’s mother dated 23 February 2016 and invoice dated 22 February 2016; T21, page 77, Centrelink record.
A Centrelink officer made a note on 23 February 2016 that:[9]
“the customer and customer’s mother have advised that company recorded previously on mother’s file… has been deregistered and that customer does not have nor ever has had any interest in this company. Cao to follow-up having this company end dated on mother’s file”.
[9] Exhibit 1, T Documents, T21, page 75, Centrelink record of 23 February 2016.
Centrelink wrote to WVVD’s mother on 23 February 2016 reminding her that the requested documentation needed to be provided to Centrelink by 8 March 2016.[10]
[10]Exhibit 1, T Documents, T7, pages 34-35, Letter from Centrelink to WVVD’s mother dated 23 February 2016.
On 14 April 2016, Centrelink advised WVVD that her claim for Youth Allowance had been rejected for the following reason:[11]
“our records show we did not receive the information we requested from you”.
[11] Exhibit 1, T Documents, T9, pages 39 – 40, Letter from Centrelink to WVVD dated 14 April 2016.
The rejection letter advised WVVD that if she did not agree with the decision it was important for her to ask for a review within 13 weeks.
A Centrelink record indicates that WVVD’s claim was rejected for the following reasons:[12]
If customer seeks review of rejection the following is required:
1/ mod PC or notification cust has never been involved in a company. (NB cust’s mother gave a statement about company involvement but this related to the mother’s involvement not the customers)
2/ mod JY is [should read “if”] parent wishes to be assessed on 15/16 estimate. A statement has been given advising est of 15/16 taxable income only but does not make mention of other income components nor does it confirm income reduction is likely to last for two years.
Attempt to pho cust 140416 to resolve Mod PC issues but n/r
[12] Exhibit 1, T Documents, T21, page 76, Centrelink record of 14 April 2016.
On 30 January 2017, Centrelink confirmed that WVVD had contacted Centrelink on 30 January 2017 regarding her intent to again claim Youth Allowance payments and a concession card.[13] On the same day, WVVD also lodged a claim for the disability support pension.[14]
[13]Exhibit 1, T Documents, T10, pages 41 – 42, Letter from Centrelink to WVVD dated 30 January 2017.
[14] Exhibit 1, T Documents, ST9 and ST 10, pages 59 and 65, Centrelink records.
Centrelink records indicate that WVVD attended the Beenleigh Customer Service Centre on 13 March 2017. The record notes as follows:[15]
Customer contacted through liaison. Requested information re- Rej Youth Allowance from 2016, as well is progressive DSP. Advised that rejection occurred due to FSD [failure to supply documents], and as it was greater than 13 weeks ago, unable to appeal decision.
[15] Exhibit 1, T Documents, ST9, page 63, Centrelink record of 13 March 2017.
On 17 March 2017, WVVD contacted Centrelink regarding review of the decision originally made on 14 April 2016 to reject the claim for Youth Allowance.[16]
[16] Exhibit 1, T Documents, T21, page 79, Centrelink record.
On 20 March 2017, Centrelink confirmed that WVVD had contacted Centrelink regarding her intent to claim a payment[17] and that WVVD had attended in person at the Beenleigh Customer Service Centre and lodged her claim.[18]
[17]Exhibit 1, T Documents, T11, pages 43 – 45, Letter from Centrelink to WVVD dated 20 March 2017.
[18]Exhibit 1, T Documents, T12, pages 46 – 49, Customer declaration form completed by WVVD dated 20
March 2017; T21, page 74, Centrelink record.
Centrelink determined that WVVD qualified for youth allowance and that it was payable from 30 January 2017 on the basis that she was studying full-time at University.[19]
[19]Exhibit 1, T Documents, T13, pages 50 – 52, Letter from Centrelink to WVVD dated 20 March 2017.
On 5 April 2017, WVVD advised Centrelink that she wanted her youth allowance to be backdated to January 2016 on the grounds that she had supplied all requested documentation.[20]
[20] Exhibit 1, T Documents, T21, page 83, Centrelink record.

Claims History

In April 2017, an Authorised Review Officer (“ARO”) affirmed Centrelink’s decision made on 14 April 2016 to reject WVVD’s claim for youth allowance. The ARO concluded that because WVVD did not request a review of that rejection until 17 March 2017, the earliest payments could begin would be 17 March 2017 or the date she lodged her new claim, which ever was the earlier, and that it could not be backdated to the date of her original claim.[21]
[21] Exhibit 1, T Documents, T14, pages 53 – 57, Decision of Authorised Review Officer and notes dated 12 April
2017.
WVVD sought a further review with the Social Services and Child Support Division of this Tribunal (“SSCSD”) on 1 July 2017. WVVD submitted that she had repeatedly provided the documentation requested by Centrelink in relation to her initial claim and therefore her original claim should not have been rejected.[22] WVVD’s mother provided written submissions on behalf of her daughter that:[23]
(a)they had attended Centrelink on four occasions to provide requested documentation and were advised by Centrelink staff at the Chermside office that it had everything required to process her daughter’s claim;
(b)they uploaded the documents requested, visited the Centrelink Chermside office on 15 February 2016 and, upon inquiring whether everything Centrelink required was lodged, they were advised that further information was required. They then returned with the requested information on 16 February 2016, 19 February 2016 and 23 February 2016;
(c)on 23 February 2016, a Centrelink officer told them that they had absolutely everything in order for the youth allowance application to be processed;
(d)at the time of the rejection of the youth allowance claim, she was dealing with an extended period of unemployment and mounting debts and was not aware that she could appeal the rejection;
(e)she did not read the rejection letter from Centrelink and did not know at the time that the reason for the rejection was because Centrelink said they had not provided requested documents; and
(f)they only became aware of an appeal option when WVVD spoke to a Centrelink officer through a Facebook chat and he urged her to appeal the initial application.
[22] Exhibit 1, T Documents, T16, pages 59 – 62, Application for first review dated 1 July 2017.
[23]Exhibit 1, T Documents, T17, pages 63 – 64, Submissions of WVVD and WVVD’s mother dated 1 July 2017.
The SSCSD rejected WVVD’s claim and affirmed the ARO’s decision on 31 October 2017.[24]
[24] Exhibit 1, T Documents, T2, pages 7 – 9, SSCSD’s Decision and Reasons for Decision dated 31 October 2017.
On 5 December 2017, WVVD lodged an application for review of the SSCSD’s decision to this Tribunal.[25]
[25] Exhibit 1, T Documents, T1, pages 1 – 6, Application for Review dated 5 December 2017.

ISSUES FOR DETERMINATION

The issues for determination are:
(a)whether the decision to reject WVVD’s claim for youth allowance was wrong and should be set aside and substituted with a decision that the claim be granted; and, if yes:
(i)whether WVVD can be paid youth allowance prior to 30 January 2017, which involves determining whether WVVD requested a review of the decision before 17 March 2017;
(ii)whether WVVD did not request a review of the relevant decision prior to 17 March 2017; and
(b)whether the Tribunal’s discretionary power to otherwise order, contained in section 43(6) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) permits the Tribunal to backdate the effect of its decision to a date prior to that determined by the date effect provisions contained in the Social Security (Administration) Act 1999 (“Administration Act”); and, if yes:
(i)whether the discretionary power should be exercised.

WAS THE DECISION TO REJECT WVVD’S CLAIM FOR YOUTH ALLOWANCE INCORRECT?

The basis for the rejection of WVVD’s original claim for youth allowance is not in dispute. It was rejected on the grounds that she had failed to supply requested documents or information, namely a Mod PC form and a Mod JY form. However, it is clear from the Centrelink records that WVVD’s mother provided a Mod JY form on 31 January 2016.
The issue is whether the failure to provide the Mod PC form is a basis for Centrelink to have rejected WVVD’s claim.
WVVD contends that the decision to reject her claim was wrong because:
(a)she had provided all of the requested documentation;
(b)she never received a notice to supply a Mod PC form;
(c)any notice relied upon by Centrelink as a notice requesting her to provide a Mod PC form was an ineffective basis upon which to reject her claim because it either:
(i)failed to inform her of the effect of section 64 of the Administration Act; or
(ii)failed to stipulate a time period within which she was to provide the document.

Legislative Background

Pursuant to section 36 of the Administration Act, the Secretary must determine whether to grant or reject an applicant’s claim for a social security benefit,[26] such as youth allowance.
[26] Section 36.
Pursuant to section 37 of the Administration Act, two requirements must be met to satisfy the Secretary that a claim for payment should be granted. First, the claimant must be qualified for the payment and second, the payment must be payable. If both of these requirements are not met, the Secretary does not need to grant the claim for payment.

Was WVVD qualified for the Youth Allowance?

Whether a person qualifies for the youth allowance is established by section 540 of the Social Security Act 1991 (Cth) (“the Act”). It provides that a person is qualified for a youth allowance in respect of a period if:
(a) either of the following applies:
(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
(ii) the person is a CDEP Scheme participant (see section 1188B) in respect of the period;
(b) throughout the period the person is of youth allowance age (see Subdivision D); and
(c) throughout the period the person satisfies any requirements relating to Youth Allowance Employment Pathway Plans that apply to the person under Subdivision E; and
(d) throughout the period, the person:
(i) is an Australian resident; or
(ii) is exempt from the residence requirement within the meaning of subsection 7(7).
Note 1: Subdivision G provides for prospective qualification for youth allowance.

Note 2: Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it.

Counsel for WVVD submitted that the evidence before the Tribunal is sufficient to demonstrate that WVVD qualified for the youth allowance. However, none of the information set out in section 540 of the Act was before this Tribunal. The Tribunal is not in a position to determine whether WVVD qualified for the youth allowance at the time of her first claim. Neither party specifically addressed the issue of whether WVVD qualified for youth allowance under section 540 of the Act. Given that WVVD was enrolled full-time at university, the Tribunal will assume WVVD met the section 540 requirements.

Was the Youth Allowance payable?

The Act and the Administration Act provide for a number of situations when a payment will not be payable. Relevantly here, the youth allowance would not be payable to WVVD if:
(a)her Youth Allowance rate was nil: section 547 of the Act;[27]
(b)her assets exceeded the asset value limit: section 547A of the Act;
(c)she failed, without reasonable excuse, to comply with a requirement made of her under section 67 or 192 of the Administration Act: section 547AB of the Act; or
(d)she failed to comply with the notice provisions set out in sections 63-64 of the Administration Act.
[27] Section 1067G sets out how the rate of youth allowance is calculated.

Was the rate nil? Did WVVD’s Asset Value exceed the prescribed limit?

No submissions were made to the Tribunal regarding the value of WVVD’s assets or the applicable rate. It is reasonable to assume that neither party considered that WVVD could not be paid youth allowance on the grounds of the value of her assets. Given that Centrelink rejected her claim for failing to provide information, it is also likely that Centrelink had not proceeded to calculate her rate of pay.

Did WVVD fail to comply with a section 63, 67 or 192 notice?
Was WVVD given notice to supply a Mod PC form or equivalent information?

There are three relevant notice provisions which require consideration.

Notices under section 63(2) of the Administration Act

The first provision is found in section 63(2) of the Administration Act. It provides relevantly:
If the Secretary is of the opinion that a person to whom this subsection applies should:
(b) contact the Department; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing…
Pursuant to section 64(1), if the requirement in the section 63(2) notice is reasonable and the person does not comply with it, the claimed payment is not payable. However, section 64(1) will only apply if the notice has informed the person of the effect of section 64.[28]
[28] Section 63(7).
Pursuant to section 63(5) of the Administration Act, a section 63(2) notice may be given in any way the Secretary considers appropriate. That is, it need not be in writing or in any particular form.

Notices under sections 67 and 192 of the Administration Act

Section 67 provides relevantly that where a person has made a claim, the Secretary may give the person a written notice to give Centrelink a statement about a matter that might affect the payment to the person of the social security payment. The section 67 notice must, among other things, specify the period within which a person is to comply.[29] Failure to comply with section 67 constitutes an offence unless the person has a reasonable excuse.[30]
[29] Section 72(1).
[30] Section 74(3).
Section 192 gives the Secretary a general power to require a person to give information, or produce a document, to Centrelink if the Secretary considers that the information or document may be relevant to the question whether a person who has made a claim for a social security payment is or was qualified for a social security payment. A request under section 192 must be in writing and must, among other things, specify the period within which a person is to comply.[31]
[31] Section 195(1) – (2).
If the person does not have a reasonable excuse for failing to comply with a section 67 or 192 notice, youth allowance is not payable.

Was WVVD given notice that she had to supply a Mod PC form?

In written submissions filed on behalf of WVVD on 14 May 2018 by Ms Catherine Uhr, Solicitor from Legal Aid, WVVD accepted that she had been requested to provide a Mod PC form.[32] However, at the hearing, Mr Black of Counsel submitted that WVVD was not given any notice and therefore her failure to provide the requested information did not provide Centrelink with a basis for rejecting her claim.
[32] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions dated 14 May 2018, para 6.
WVVD elected not to give oral evidence at the hearing, so the Tribunal is left to consider the tendered affidavit evidence of WVVD and WVVD’s mother. The Tribunal has also been provided with Centrelink records and two statements from Mr Russell Foo. Mr Foo is a Solution Architect in the Online Claims team of Centrelink and has extensive experience and knowledge in relation to Centrelink online claiming processes and requirements. WVVD did not require Mr Foo to be made available for cross-examination and his evidence was therefore unchallenged.

Prior to lodging her claim, WVVD registered to receive all notices via email to her myGov inbox.[33] In her claim form, as outlined earlier, she again provided her email address and mobile number and also nominated her mother as a correspondence nominee.
[33] Exhibit 6, Respondent’s Further Submissions in Reply dated 1 June 2018, para 3, Attachment A.
Pursuant to the Administration Act, people can be appointed as correspondence nominees on behalf of the applicant for a benefit. Pursuant to section 123I of the Administration Act, any notice that the Secretary is authorised or required by the social security law to give to a “benefit recipient” may be given by the Secretary to the benefit recipient's correspondence nominee and may be addressed to the nominee personally. A “benefit recipient” includes a person who has made a claim for a social security payment.[34] Any notice given to the correspondence nominee is taken to have been given to the benefit recipient.[35] If a correspondence nominee fails to comply with a notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement.[36]
[34] Section 123G, Administration Act.
[35] Section 123J(1)(a), Administration Act.
[36] Section 123J(1)(d), Administration Act.
Section 123J(2)(d) of the Administration Act makes it clear that if the notice requires the benefit recipient to give a statement about a matter, or produce a document, to Centrelink within a specified period and the correspondence nominee does not give a statement about that matter, or produce the document, as the case may be, to Centrelink within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement set out in the notice.
A review of Centrelink records confirms that WVVD was notified that she had to provide a Mod PC form.[37] Centrelink also sent WVVD a text message on 25 January 2016 reminding her to “return the requested documents ASAP”. A further general reminder letter was sent to WVVD’s mother on 23 February 2016. The notice of 23 February 2016 clearly states that Centrelink will not make a decision regarding eligibility until all requested documentation has been provided.[38]
[37] Exhibit 1, T Documents, T21, page 75, Centrelink record of 23 February 2016.
[38] Exhibit 1, T Documents, T7, page 35, Letter from Centrelink to WVVD’s mother dated 23 February 2016.
Mr Foo states that:[39]
(a)based on the responses WVVD gave within her claim made on 17 January 2016, she was requested to provide a number of documents, including a Mod PC form;
(b)the request to supply those documents would have been displayed on her web page under the heading “Next steps”; and
(c)the “Next steps” screen, as at the time of WVVD’s claim, would have been set out as follows:
[39] Statement of Mr Russel Foo dated 29 June 2018, paras 3-6.

You will need to provide the following documents and forms.
Information Box

Display only if there are documents or forms to be displayed.

What happens if you do not provide these documents and forms?

If you do not provide these documents and forms by <date> <your claim may be rejected>.

Display if there are documents or forms to be displayed.

<date>=claim submit date + 14 days

<date> format is displayed as <dd Month YYYY >.

Mr Foo confirms, and his evidence was unchallenged, that at the time of WVVD’s application, the list of documents requested to be provided would have been displayed on the “Next steps” screen and that a review of the archives in relation to the Online Claim System's coding identified that WVVD was told to provide the requested information within 14 days.
The Tribunal finds that the web notice constitutes a section 63(2) notice to WVVD to provide the requested documents including the Mod PC form. WVVD was reminded to provide these documents twice, via text message and via the letter to her mother on 23 February 2016. WVVD’s mother acknowledges receiving the letter of 23 February 2016. WVVD’s mother says that when she received this letter, presumably a day or two later, she telephoned Centrelink and was told that unless the letter specified a particular document there was nothing else she needed to provide for the purpose of her daughter’s claim.[40] There is no Centrelink record of WVVD’s mother having made this telephone call or of a Centrelink officer telling her that no further information was required. WVVD’s mother also stated that she attended at a Centrelink office in person on 23 February 2016 and was told by a Centrelink officer that she had nothing further to provide. There is no corroborating evidence of this in Centrelink’s records.
[40] Exhibit 1, T Documents, T17, page 64, Letter from WVVD and WVVD’s mother dated 1 July 2017.
There is no mention in WVVD’s affidavits that she had not received the web notice or the text message. WVVD does not depose that she did not know what documents she had to provide. WVVD may have been mistaken as to who had to provide the necessary information, herself or her mother, but the notice was clear that she had to provide the Mod PC form. WVVD states that she thought she had provided everything and that unnamed Centrelink officers had told her that she had provided everything that was needed. However, there is no Centrelink record to corroborate this.
Counsel submitted that Mr Foo cannot say for sure whether the notice was on WVVD’s web page. However, there is no evidence from WVVD that she was not aware of what documents she needed to provide. WVVD elected not to give evidence at the hearing. It is open to the Tribunal to accept, on the balance of probabilities, that WVVD was notified via her web page of the documents she needed to provide and of the time frame within which to provide that information.
This information displayed on WVVD’s web page constitutes a notice under section 63(2), section 67 or section 192. It specified the documents Centrelink required for WVVD’s claim to be considered. In Kaley and Secretary, Department of Social Services [2014] AATA 723, that Tribunal also found that the online process met section 63 requirements. The Member held (at [37]):
The operation of the online process as a means of gathering information clearly has the approval of the Secretary, is covered by s 6A of the Administration Act[41] and meets the requirements of subsection 63(5).
[41] Section 6A(1) of the Administration Act provides: “The Secretary may arrange for the use, under the Secretary's
control, of computer programs for any purposes for which the Secretary may make decisions under the social security law”.
Mr Black submitted that the notice, if issued, does not provide a valid basis for Centrelink to reject WVVD’s application because it did not specify the time within which she had to comply. The Tribunal finds it more likely than not that the notice indicated the documents had to be provided within 14 days as explained by Mr Foo. WVVD was also reminded again via text message and via letter to WVVD’s mother to have the material to Centrelink by 8 March 2016.
It is clear to the Tribunal that WVVD, and her mother, were aware of the request to provide the specified material, given that they provided Centrelink with all of the requested documentation except the Mod PC, and WVVD’s mother had taken it upon herself to provide Centrelink with a written statement regarding her company involvement.
WVVD’s mother’s statement regarding her company involvement did not address WVVD’s involvement. The Respondent submits that without the information requested Centrelink was not in a position to determine whether WVVD qualified for youth allowance. WVVD provided contradictory information in her original claim. She declared on one hand that her home was owned by a company that she has an interest in and, on the other, that she was not involved in any business or private company.[42] It is therefore understandable that Centrelink required her to provide it with the Mod PC form information.
[42]Exhibit 1, T Documents, T4, pages 28 and 30, WVVD’s Claim for the Youth Allowance dated 17 January
2016.
Given the history of the company record on WVVD’s mother’s file and the inconsistent answers provided by WVVD in her claim form, the Tribunal considers that it was reasonable for Centrelink to request the Mod PC form information from WVVD. In Re Suvathi Thiagarajan And Secretary, Department Of Employment And Workplace Relations(2007) 99 ALD 351, the Tribunal held that a notice requesting information or documents for the purposes of clarifying and checking information may be reasonable, even in circumstances where the substance of the information requested has already been provided.[43]
[43]Re Suvathi Thiagarajan And Secretary, Department Of Employment And Workplace Relations(2007) 99 ALD 351, at [17].
A notation in Centrelink’s records on 23 February 2016 provides that WVVD had advised that she did not have any involvement in the Company. On 14 April 2016, the day Centrelink determined that WVVD’s claim was to be rejected, Centrelink records indicate that only WVVD’s mother had advised Centrelink of her involvement in the Company, and that WVVD had not yet provided that information.[44]
[44] Exhibit 1, T Documents, T21, page 76, Centrelink record of 14 April 2016.
It is not in dispute that WVVD has never provided Centrelink with a Mod PC form. There is also no evidence that WVVD ever informed Centrelink of her involvement in the Company or in any other company.
The statement WVVD’s mother gave Centrelink confirming that she was not involved with the Company makes no reference to WVVD and what involvement she may have had.[45]
[45] Exhibit 1, T Documents, ST2, page 18, Statement of WVVD’s mother dated 16 February 2016.
The Tribunal finds that Centrelink did not have all of the information it had requested from WVVD for the purpose of assessing her claim. The issue becomes whether the failure to provide this information entitled Centrelink to reject her claim.
The Tribunal has found that WVVD did not comply with the requirement to provide Mod PC information and that it was not unreasonable for Centrelink to have requested it. The issue is whether the notice informed WVVD of the “effect” of section 64(1), that is, that her failure to comply would mean her claim was not payable, and whether she had a reasonable excuse for not complying.
WVVD submits that although Centrelink has power to reject a claim where requested information has not been provided, it does not have that power in this case because it did not warn her of the consequences of non-compliance.
According to Mr Foo’s unchallenged evidence, the notice on the web page reiterated that her claim may be rejected if she did not provide the requested documents. Counsel for WVVD says as the notice only informed her that her claim “may” be rejected and not that it would be rejected means she was not properly notified of the effect of section 64(1).
In Kaley, similar to this situation, the online process warned the applicant that his failure to comply “may lead to rejection of the claim”. It was accepted in Kaley that this satisfied section 63(7) and that the non-compliance provisions in subsection 64(1) were not precluded from applying.[46] This Tribunal agrees with that decision.
[46] Kaley and Secretary, Department of Social Services [2014] AATA 723, at [38].
The Tribunal also believes that WVVD was informed of the consequences of her failure to comply with the notice in her original claim form where she declared that she understood the following:[47]
·I may need to provide further information if requested
·Payments cannot start until this statement is accepted, all supporting documentation is provided to the Department of Human Services
[47]Exhibit 1, T Documents, T4, page 31, WVVD’s Claim for the Youth Allowance dated 17 January 2016.

Did WVVD have a reasonable excuse for failing to comply?

WVVD submits the following facts are relevant to whether she had a reasonable excuse for not complying and for whether the notice was reasonable:[48]
(a)she was a child at the time she made her claim for youth allowance and throughout the period up until the claim was rejected;
(b)she had mental health issues and first consulted Dr Julie O’Connell in February 2016;
(c)any notice was given only by way of a computer screen displayed for an unknown period after she submitted her claim. No printed or permanent copy of the notice was given to the Applicant and even the Respondent cannot reproduce the notice;
(d)On 31 January 2016, the requested “Mod JY” form was submitted through the Respondent’s online system;
(e)she attended at Centrelink Chermside Office on multiple occasions in an effort to comply with the claim requirements;
(f)the Centrelink record of 23 February 2016, noted:
“customer and customers mother have advised that company recorded previoulsy [sic] on mothers file… has been de registered and that customer does not have nor ever has had any interest in this company. cao to follow up having this company end dated on mothers file”; and
(g)she stated in her claim form that “I am not, and have not, been a director, shareholder or otherwise involved in a private company”.
[48] Applicant’s Further Submissions dated 19 July 2018, para 36 – 39.
The Tribunal finds that those factors do not give rise to a reasonable excuse for WVVD’s failure to comply for the following reasons.
The Tribunal acknowledges that WVVD was under 18 years of age at the time of her claim. However, she was 17 years old, about to begin university and was not a child in the sense of someone incapable of making decisions. Further, her mother and nominee was also aware of Centrelink’s information requirements.
On 11 January 2018, Dr Julie O’Connell, General Practitioner, provided a report that WVVD was diagnosed with borderline personality disorder, major depression, generalised anxiety disorder and PTSD following a horrific incident on 5 May 2016. In Dr O’Connell’s opinion, WVVD’s illness was severe and required dialectic behavioural therapy which involves weekly psychiatry and psychology therapy in addition to medication. In Dr O’Connell’s opinion, WVVD’s mental health problems affected her concentration and ability to complete tasks and that her sole carer, her mother, was also under extreme financial stress and anxiety during this period. In Dr O’Connell’s opinion, these issues would have affected WVVD’s and her mother’s ability to respond to their appeal in a timely and effective way.[49] This does not mean that they were unable to respond to the request for documents and information, which, on the whole, they did.
[49] Exhibit 1, ST Documents, ST5, page 29, Report of Dr O'Connell dated 11 January 2018.
While the Tribunal acknowledges that WVVD has mental health conditions, at the relevant period, namely between the date of her application and the date of rejection, WVVD deposed that she was a full-time university student studying 4 subjects, was attending lectures, was able to sit for exams and university assessment and checked her emails every day. This would indicate that WVVD’s issues prior to the rejection were not such that she was incapable of understanding or complying with Centrelink notices.
The horrific incident which WVVD endured occurred after her claim was rejected and therefore did not have any bearing on whether she was capable of providing Centrelink with requested information.
A notice may be given via an applicant’s webpage and a section 62 notice does not require any particular form. Further, WVVD specifically requested receiving notices from Centrelink in this manner and some of the requested material, such as the Mod JY form, was submitted online.[50] Again, there is no evidence from WVVD that she did not receive the web notice and her actions subsequent to the fact point to her having received it and attempting to comply with it.
[50]Exhibit 2, Affidavit of WVVD dated 11 May 2018, paras 10 and 42; Exhibit 1, T Documents, T21, page 77, Centrelink record of 31 January 2016.
In relation to the length of time the notice would have been available to WVVD to review, the Operational Blueprint “Centrelink letters online service” provides that letters are available to view via the myGov account for up to two years.[51]
[51] Exhibit 6, Respondent’s Further Submissions in Reply dated 1 June 2018, Attachment B.
There is no dispute that WVVD provided Centrelink with most of the information requested.
In relation to the Centrelink record of 23 February 2016, whoever made the note clearly did so in error because information regarding WVVD’s interests, if any, in any private companies, had not in fact been provided to Centrelink. Further, there is simply no record of WVVD or her mother being told at any time that they had satisfied all of the requests for information.
WVVD may have stated in her claim form that she was not a director, shareholder or otherwise involved in a private company, but she also declared that her home was owned by a company in which she had an interest. As a result, it cannot be said that WVVD substantively complied with the Centrelink notice, or that Centrelink was in a position to determine her eligibility or payability.

CONCLUSION

The Tribunal has found that WVVD failed to comply with a notice and that she did not have a reasonable excuse for doing so. As a result, her youth allowance was not payable and Centrelink was bound to reject her claim under section 37. Therefore, the decision under review was the correct or preferable decision.

THE TRIBUNAL’S DISCRETIONARY POWER

Pursuant to section 43(1) of the AAT Act, the AAT has the power to affirm, vary, set aside, make a decision in substitution of, or remit a decision under review. The AAT “stands in the shoes of the decision-maker and, on the material before it, makes the ‘correct or preferable’ decision”.[52].
[52]See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane CJ.
Section 43(6) of the AAT Act then goes on to provide for what happens if a decision of a decision-maker is varied or substituted:
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. (emphasis added)
Standing in the “shoes of the decision-maker”, the ‘correct or preferable’ decision was made.
Section 43(6) of the Act only applies where the Tribunal is:[53]
(a)varying a decision; or
(b)substituting a decision.
[53] See Thompson and Secretary, Department of Social Services [2017] AATA 1638, at [21]-[22].
As the decision under review was correct under the legislation, there is, in effect, no discretion to vary or substitute. Therefore, section 43(6) of the AAT Act does not apply here.

DECISION

The decision under review is affirmed.

I certify that the preceding 82

(eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 31 August 2018

Date of hearing: 11 June 2018

Date last submissions received: 19 July 2018

Counsel for the Applicant: Mr Black

Solicitors for the Applicant: Legal Aid Queensland

Advocate for the Respondent: Mr Dube, Partner
Sparke Helmore Lawyers

Solicitors for the Respondent: Department of Human Services

[2018] AATA 3150

31 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Standing

Date of hearing:	11 June 2018
Date last submissions received:	19 July 2018
Counsel for the Applicant:	Mr Black
Solicitors for the Applicant:	Legal Aid Queensland
Advocate for the Respondent:	Mr Dube, Partner Sparke Helmore Lawyers
Solicitors for the Respondent:	Department of Human Services