Young and Secretary, Department of Family and Community Services
[2006] AATA 219
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 219
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/428 & S2005/216
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES YOUNG Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member R W Dunne Date9 March 2006
PlaceAdelaide
Decision The Tribunal varies the decisions under review and decides that the applicant is entitled to receive Newstart Allowance from 10 February 1997, when he commenced to receive Family Payment for Reginald, until 1 September 1999.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claims for Family Payment and Sole Parent Pension – whether applicant’s claim for Sole Parent Pension can be treated as a claim for an alternative income supplement – entitlement to Newstart Allowance – notice of decision of Authorised Review Officer – whether applicant sought review of decision of Authorised Review Officer within 13 weeks – decisions varied.
Social Security Act 1991 ss 5(2), 23(12), 593(1), 601(1), 615(2), 1302A
Social Security (Administration) Act 1999 ss 109(1), 109(2), 152(3), 152(4)
SDSS v Sevel & O’Connell (1992) 28 ALD 626
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Trio and Department of Family & Community Services (2002) 70 ALD 206Mulhallen and Department of Family & Community Services (2001) 65 ALD 579
REASONS FOR DECISION
9 March 2006 Senior Member R W Dunne 1. The background to this matter and the dispute between Mr James Young (the “applicant”) and the respondent (“Centrelink” or the “Department”, as appropriate) is lengthy and somewhat complicated. It started with a claim for Family Payment and Sole Parent Pension the applicant made to Centrelink on 6 February 1997. A later claim for Family Payment was made on 3 March 1999 and a claim for Newstart Allowance was made on 1 September 1999.
2. Mr Young was married in India in January 1991 and he and his then wife came to Australia. He has two children, Reginald born in January 1992, and Monique born in May 1995. The applicant and his then wife separated in December 1996.
3. Following separation, the applicant became jointly responsible for the care of his children. Because of a downturn in his business and financial difficulties he found the responsibility increasingly onerous and approached Centrelink for financial assistance.
4. To better understand the background, the following is a chronology, largely from Centrelink records, of the relevant events involving the applicant :
24 January 1997 – the applicant was advised by Centrelink to lodge a claim for Family Payment in respect of Reginald and Monique;
6 February 1997 – the applicant lodged a claim for Family Payment and Sole Parent Pension;
10 February 1997 – the applicant’s claim for Sole Parent Pension was rejected;
12 February 1997 – Family Payment at 47 percent was granted for Reginald, nil for Monique;
12 February 1997 – the applicant was advised that his claim for Sole Parent Pension was rejected;
17 February 1997 – the applicant requested that the decisions regarding Family Payment and Sole Parent Pension be reviewed;
19/20 November 1998 – Family Payment paid for Reginald was cancelled;
3 March 1999 – the applicant lodged a new claim for Family Payment for Reginald and Monique, which was rejected;
6 May 1999 – the applicant requested that the decision rejecting Family Payment be reviewed;
25 May 1999 – the applicant was advised that his claim for Family Payment had been rejected;
22 June 1999 – the decision to reject the claim for Family Payment was affirmed by an Authorised Review Officer (“ARO Review 1”);
1 September 1999 – the applicant made a claim for and was granted Newstart Allowance;
3 February 2004 – the applicant appealed ARO Review 1 to the Social Security Appeals Tribunal (“SSAT”). The SSAT decided it did not have jurisdiction to hear the matter because it believed (erroneously) that the decision had not been reviewed by an Authorised Review Officer;
11 March 2004 – the applicant’s appeal to SSAT was referred back to Centrelink and sent to an Authorised Review Officer;
14 July 2004 – the decision to reject the claim for Family Payment was affirmed by an Authorised Review Officer (“ARO Review 2”);
11 October 2004 – the applicant appealed ARO Review 1 to the SSAT;
4 November 2004 – the SSAT affirmed the decision of ARO Review 1 in relation to the applicant’s claim for Family Payment;
4 November 2004 – the SSAT held that the appeal against the decision of ARO Review 2 in relation to the applicant’s claim for Family Payment was out of time;
19 May 2005 – the applicant’s 1997 Family Payment and Sole Parent Pension decisions were reviewed and affirmed by an Authorised Review Officer (“ARO Review 3”);
2 June 2005 – the applicant appealed ARO Review 3 to the SSAT;
25 July 2005 – the SSAT set aside ARO Review 3 and decided that the applicant’s Family Payment in respect of Monique would be recalculated from 6 February 1997 until 20 November 1998.
issues for consideration
5. As the applicant is seeking a review of the decisions of the SSAT made on 4 November 2004 and 25 July 2005, the Tribunal finds that the following are the issues for it to determine:
(a)Whether the applicant’s entitlement to Family Payment in respect of Monique for the period from 6 February 1997 to 20 November 1998 has been correctly determined.
(b)Whether there are grounds for the applicant’s claim for Sole Parent Pension, made on 6 February 1997, to be treated as a claim for an alternative income support payment.
(c)Whether the applicant was given written notice of the decision in ARO Review 1 made on 22 June 1999.
(d)Whether the applicant sought a review of the decision in ARO Review 1, made on 22 June 1999, within 13 weeks of the making of the decision.
(e)Whether the applicant sought a review of the decision in ARO Review 2, made on 14 July 2004, within 13 weeks of the making of the decision.
6. For the Department, it was indicated that the findings and decision of the SSAT on 25 July 2005, with regard to Mr Young’s entitlement to Family Payment for Monique for the period from 6 February 1997 to 20 November 1998, were accepted.
7. The Tribunal notes that, before the SSAT sitting on 25 July 2005, the applicant conceded that the decision to reject his claim for Sole Parent Pension was correct and the matter did not need to be considered further.
legislation
8. As the issues for the Tribunal relate to the applicant’s claims for Family Payment and Sole Parent Pension made in February 1997 and to the Centrelink review and appeal procedures that applied in 2004, the legislation that is relevant to the issues for the Tribunal is the Social Security Act 1991 (“Act”), as it existed before the coming into force of the Social Security (Administration) Act 1999 on 20 March 2000 (“Administration Act”), and the Act as it applies after the coming into force of the Administration Act.
9. The relevant legislation is as follows:
The Act
Section 5(2)(a), s 593(1), s 601(1) and s 615(2) -
“5(2)Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care;
…
593(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that throughout the period the person is unemployed; and
(b)throughout the period, or for each period within the period, the person either:
(i) satisfies the activity test; or
(ii) is not required to satisfy the activity test;
…
601(1)Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work, other than paid work that is unsuitable to be undertaken by the person.
Note 1: For situations in which a person is not required to satisfy the activity test see:
(a) section 602 (certain persons over 50);
(b) section 603 (persons attending training camps in remote areas);
(c) section 603A (special circumstances);
(d) section 603AA (voluntary work).
Note 2: See subsections (2A) and (2B) on what paid work is unsuitable.
…
615(2) If:
(a)the person makes a claim (in this subsection called the initial claim) for:
(i)a social security or service pension, a social security benefit or a parenting payment; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a newstart allowance; and
(b) on the day on which the person makes the initial claim, the person is qualified for newstart allowance; and
(c) the person subsequently makes a claim for newstart allowance;
and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person's provisional commencement day is, subject to subsections (3), (4) and (5), the day on which the person made the initial claim.”
The Administration Act
Section 109(1) and (2) and s 152(3) and (4) -
“109(1 If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
…
152
…
(3)Subject to subsections (4) and (5), if the SSAT:
(a)varies a decision under review; or
(b)sets aside a decision under review and substitutes a new decision;
the decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the decision under review has or had effect.
(4)If:
(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.
…”
discussion of the evidence
10. The applicant was represented by Ms Riley (from the Welfare Rights Centre) and the Department was represented by Ms Powell from Centrelink Legal Services Branch.
11. The T documents were received into evidence as exhibits A1 and A2. In addition, the following documents were received into evidence:
·fortnightly calculations of percentage of care based on Family Court orders (exhibit A3); and
·Centrelink claim form (one page only) dated January 1997 (exhibit A4).
the evidence
12. The applicant was about 50 years of age when he first dealt with Centrelink. He had never had the need to approach Centrelink before January/February 1997 and he said he was given no advice about making a claim for benefits. His evidence was that he had first dealt with the Torrensville branch of Centrelink and later with the Edwardstown branch.
13. Ms Riley referred the applicant to an extract from his claim for Family Payment (“Claim Form”) lodged with Centrelink on 6 February 1997 (exhibit A2, T5 at page 34). In answer to a question about the type of Centrelink payment he was seeking, the applicant acknowledged that he had written “Sole Parent Pension” and had indicated underneath, “I think”. He said the Centrelink officer had made no comment about the uncertainty he had expressed in the Claim Form and offered no assistance about the type of benefit he might claim.
14. Ms Riley then referred the applicant to another extract from his Claim Form (exhibit A2, T17 at page 100). At question 54 of the Form, when asked to complete details of his estimated “Other taxable income – business or self employment” for the 1996/1997 financial year, the applicant had inserted “$20,000”. When questioned about this amount, he said:
“… they [Centrelink] said to me I had to fill in the income and after I explained and she said: what income are you going to have? I said: well, I’m broke, I’m at a loss but probably have – lucky – realised 20,000 pay off debts. … And there’s no way in the world, she said, they won’t be able to accept the form if I didn’t put that in and if I put it in, they’d help me but otherwise they couldn’t help me if I didn’t put that in. And so I was – had to put it in.”
When questioned further by the Tribunal, the applicant said that the amount of $20,000 was a “guesstimate” of the proceeds from the sale of stock and assets from the closure of his business. The “guesstimate” was of his gross income and he said his taxable income was “Nil. Zero.”
15. As a result of his claim for Family Payment, Centrelink paid the applicant $132 per fortnight. This was based on Centrelink’s assessment that he cared for Reginald for approximately 47 percent of the time and for Monique for approximately 19 percent of the time. However, because the applicant did not care for Monique for at least 30 percent of the time, based upon the then existing Centrelink policy, the applicant received approximately $45 per fortnight for Reginald, approximately $87 per fortnight Rent Assistance, but nothing for Monique. The applicant said his claim for Sole Parent Pension had also been denied. It was Ms Riley’s submission that this was done by Centrelink in the knowledge that the applicant would not be entitled to Sole Parent Pension, but no advice was given to him as to his possible entitlement to Newstart Allowance or any other benefit.
16. Ms Riley then asked the applicant about his request for a review of the Centrelink decisions made in February 1997. The applicant said that he was advised by Centrelink that the decisions would be reviewed, but nothing happened. However, in November 1998, following new orders that were made by the Family Court, the applicant’s Family Payment for Reginald ceased altogether.
17. The applicant said that, when he requested a review of the decision not to pay him Family Payment, Centrelink advised him that his claim could not be granted for Reginald and Monique because the “14 day rule” had not been satisfied. The 14 day rule had been applied by Centrelink following the orders made by the Family Court on 13 October 1998 (exhibit A1, T11 at pages 29-30) relating to alternate weekly contact hours with the applicant’s children. The description of the 14 day rule given by Centrelink was that a “customer without legal responsibility for the children must have the care of the children for a period of 14 consecutive days or more than that period to be paid”. The applicant said that, notwithstanding the orders of the Family Court, he was having regular weekly contact with his children.
18. The applicant said that, in early September 1999, he went to the Edwardstown branch of Centrelink. He made a claim for Newstart Allowance and the payment of benefits to him re-commenced. When asked by Ms Riley why he had made a claim for Newstart Allowance, he said that Centrelink had told him to do so.
19. Under cross-examination by Ms Powell about his claim for Newstart Allowance, the applicant said that in February 1997 his business had closed. Ms Powell referred the applicant to exhibit A1, T43 at page 107, in which it was intimated that, in December 1998, the applicant was working full-time in his own business. The applicant said that someone else had the business at that time and he only went there to help them out. The applicant said:
“… There was – someone else at the business, right? I used to go there and help them out – and I told Centrelink about it at the time, so Centrelink knew about this. They said: don’t worry about it unless you are earning any money, right? And I used to go there and repair phones and I would get maybe $20, $30 and I told one chap and he said: look, don’t worry about it. …”
When asked by the Tribunal whether he had provided anything in writing to Centrelink that he no longer carried on the business, the applicant said that Centrelink had never asked him to do so.
20. Ms Powell referred the applicant to exhibit A2, T17 at page 100, and to his disclosure (under question 54) that he had an estimated taxable income for the 1996/1997 financial year from business or self-employment of $20,000. Ms Powell then referred the applicant to the previous page of the exhibit (page 99) in which he had estimated his taxable income for 1995/1996 from business or self-employment to also be $20,000. The applicant said that Centrelink had told him to put in the figure for the 1995/1996 financial year, as well as the 1996/1997 financial year. When asked by the Tribunal why he had referred to himself as being self-employed in the Centrelink claim form, the applicant said:
“… I didn’t know what else to put down. Never been unemployed in my life, always been self-employed and so I don’t know what to put down there.”
submissions
21. The Tribunal referred Ms Riley and Ms Powell to the Department’s statement of facts and contentions and to the issues that the Department had submitted were before the Tribunal. Ms Riley and Ms Powell agreed that the issues before the Tribunal were those set out in paragraph 5 of these reasons.
22. In relation to the applicant’s entitlement to Family Payment for Monique, Ms Powell indicated that the Department accepted the findings and decision of the SSAT delivered on 25 July 2005, namely that the applicant was entitled to arrears of Family Payment for 20 percent of the care of Monique from 6 February 1997 until 20 November 1998, when the Family Payment for Reginald was cancelled. However, it was Ms Riley’s contention that the applicant’s entitlement to arrears of Family Payment for 20 percent of the care of Monique should extend from 6 February 1997 until the commencement of the Family Tax Benefit scheme on 1 July 2000.
23. As to whether there were grounds for the applicant’s claim on 6 February 1997 for Sole Parent Pension to be treated as a claim for an alternative income support payment, Ms Riley contended that some other support payment should have been suggested by Centrelink. The applicant had requested a review of Centrelink’s decision not to grant the Sole Parent Pension and he should have been advised by Centrelink at the time to test his eligibility for Newstart Allowance. In support of her contention, Ms Riley referred to s 615(2) of the Act and submitted that there was no evidence to suggest that the applicant’s entitlement to Newstart Allowance on 6 February 1997 was materially different from his entitlement on 1 September 1999, when he claimed and was granted the Allowance.
24. Ms Powell also referred to the requirements of s 615(2) of the Act, in particular s 615(2)(d), which required the Secretary (the Department) to be satisfied that it was reasonable for s 615(2) to apply. Ms Powell then referred to the requirements of s 593(1) and s 601(1) of the Act which were relevant at the time. These provisions required that the applicant must satisfy the Secretary:
·that he was unemployed and satisfied the activity test in s 601(1); and
·that, throughout the relevant period, he was actively seeking and willing to undertake paid work, other than paid work that is unsuitable to be undertaken by him.
Ms Powell submitted that the Department was not satisfied that the applicant was actively seeking paid work during the relevant period and qualified for Newstart Allowance on 6 February 1997 when his claim for Sole Parent Pension was made.
25. In relation to the issues concerning the review of the decision in ARO Review 1 (made on 22 June 1999) and the review of the decision in ARO Review 2 (made on 14 July 2004), Ms Riley and Ms Powell referred the Tribunal to their written submissions.
consideration
26. Although obviously frustrated by the events of the past, the applicant was frank and open in giving his evidence. He said he thought he should have received some assistance from Centrelink when he made his initial enquiries, but felt that he was left to his own devices in trying to complete and answer the questions contained in his 1997 Claim Form.
27. The Tribunal makes the following findings:
·Mr Young was married in January 1991. There were two children of the marriage, Reginald born in January 1992 and Monique born in May 1995. Mr Young and his then wife separated in December 1996.
·Mr Young applied for Family Payment and Sole Parent Pension on 6 February 1997. The evidence available to Centrelink at the time indicated that Mr Young had an estimated taxable income of $20,000 in the 1995/1996 and 1996/1997 financial years, arising from his self employment. In fact, the applicant had no taxable income for 1995/1996 and 1996/1997.
·Mr Young’s claim for Family Payment in respect of Reginald was granted at 47 percent. The claim for Monique was rejected because the amount of time she was in his care was assessed to be approximately 19 percent, and Centrelink policy existing at the time required that claims for less than 30 percent care should be rejected.
·On 17 February 1997, Mr Young requested an internal review of Centrelink’s decisions regarding Family Payment and Sole Parent Pension. However, this review did not occur until 19 May 2005.
·On 13 October 1998, orders were made in the Family Court that allowed the applicant only alternate weekly contact with both his children.
·Mr Young made a new claim for Family Payment for Reginald and Monique on 3 March 1999. This claim for Family Payment was also rejected.
·Mr Young requested that the 1999 decision rejecting Family Payment for Reginald and Monique be reviewed. On 22 June 1999, the decision to reject the claim for Family Payment was affirmed by an Authorised Review Officer (ARO Review 1).
·On 1 September 1999 Mr Young made a claim for and was granted Newstart Allowance. The allowance was granted by Centrelink based on Mr Young’s circumstances at that time, which were materially the same as his circumstances at 6 February 1997.
·On 14 July 2004, the 1999 decision to reject Mr Young’s claim for Family Payment for Reginald and Monique was reviewed a second time by an Authorised Review Officer and affirmed (ARO Review 2).
·On 19 May 2005, the decisions regarding Mr Young’s 1997 claim for Family Payment for Monique and Sole Parent Pension were reviewed and affirmed by an Authorised Review Officer (ARO Review 3).
·On the basis of Mr Young’s oral evidence and the documentary evidence before the Tribunal, Mr Young presented to Centrelink in February 1997 as a person who had suffered a downturn in his business, was in difficult financial circumstances and was deserving of Centrelink benefits.
application of the law to the issues for consideration
Entitlement to Family Payment for Monique from 6 February 1997
28. In its decision made on 25 July 2005, the SSAT set aside the decision of the Authorised Review Officer made on 19 May 2005 and referred the matter back to Centrelink for re-consideration in accordance with the direction that the applicant was entitled to arrears of Family Payment for 20 percent of the care of Monique from 6 February 1997 until the date when the applicant’s Family Payment in respect of Reginald was cancelled. Before the Tribunal, Ms Powell indicated that the Department accepted the decision of the SSAT in relation to the applicant’s entitlement to Family Payment for Monique for the period from 6 February 1997 to 20 November 1998.
29. However, it was Ms Riley’s submission that the cancellation by Centrelink of the applicant’s Family Payment for Reginald on 20 November 1998 was a “legally inoperative decision” and entitlement should have continued until the grant of Family Tax Benefit on 1 July 2000. Ms Riley referred to the decision of the Full Federal Court in SDSS v Sevel & O’Connell (1992) 28 ALD 626, a decision of the Full Federal Court under the Social Security Act 1947. At page 635, the Court said:
“Once the cancellation decision was set aside, the respondents had the benefit of extant decisions granting their claim. They were entitled to be paid the moneys attributable to that decision without the necessity of any new s 168(3) decision. As a practical matter it might have been necessary for authorities to be issued, but these were not decisions falling within s 168(3).
The reasons just expressed accord with the view of Jenkinson J. In dealing with Mrs O’Connell’s case his Honour said at 32-3:
‘Once the cancellation effected in January 1990 was set aside the entitlement which had until cancellation existed would continue after the date of cancellation … until some other event or act in the law, such as another exercise by the applicant of the power conferred by s 168(1), terminated that entitlement, and payment of the allowance would be required by law to be made until such an event or act occurred, without any direction by the Social Security Appeals Tribunal that the payment should be made. The setting aside of the January decision, whenever that setting aside occurs, removes the only legal obstacle to the continued existence of the entitlement to family allowance which the applicant’s original grant of Mrs O’Connell’s claim for that allowance brought into existence.’
We respectfully adopt this statement.
… Once again we adopt the view of Jenkinson J. At 34 his Honour said:
‘What is in my opinion important is to recognise that a decision to set aside a decision to cancel a family allowance has its effect when it comes into operation. It makes legally inoperative the decision which it sets aside when it is made, and once the January decision to cancel the allowance ceased to have legal effect there was revived Mrs O’Connell’s legal entitlement to receive payment of family allowance payable on each family allowance pay day falling after the cancellation, until some disentitling event or act in the law should supervene.’”
30. She also submitted that the decision to cancel the Family Payment on 20 November 1998 was based on new information received, in the form of a Family Court order made on 13 October 1998, relating to contact arrangements with the applicant’s children.
31. In the Tribunal’s view, Sevel & O’Connell (supra) cannot assist. The evidence of the applicant was that he had been advised by Centrelink that his claim for Family Payment could not be granted for Reginald and Monique because the “14 day rule” had not been satisfied. In the applicant’s case, the rule was based upon the Family Court orders made on 13 October 1998 and applied to deny the applicant Family Payment for Reginald with effect from 20 November 1998. The applicant was not legally responsible for the day-to-day care, welfare and development of his children within the meaning of s 5(2)(a) of the Act. Although he said otherwise and in the face of the Family Court orders, there was no independent evidence before the Tribunal as to exactly when the applicant cared for his children. Accordingly, the Tribunal finds that s 5(2)(a) and the 14 day rule apply to deny the applicant Family Payment for both Reginald and Monique until at least the commencement of the Family Tax Benefit scheme on 1 July 2000.
Entitlement to Alternative Income Support Payment
32. Sections 593(1) and 615(2) of the Act refer to the qualifications for and the entitlement to Newstart Allowance. They are obviously relevant to the applicant’s claim for social security payments made on 6 February 1997. Under the sections, a person is qualified for Newstart Allowance if:
·when the person makes an initial claim, the person is qualified for Newstart Allowance;
·the person subsequently makes a claim for Newstart Allowance;
·the person satisfies the activity test in respect of the Newstart Allowance; and
·the person satisfies the Secretary that it is reasonable under s 615(2) to apply and that throughout the relevant period, the person is unemployed.
33. The applicant’s evidence was that his gross income in the 1996/1997 financial year was $20,000 and that his taxable income for that period was nil. He said that Centrelink had told him that they would not accept his Claim Form unless he put an amount in the Form. He said the amount of $20,000 was the proceeds from the sale of stock and assets from the closure of his business and that his actual taxable income was zero. If the amount of $20,000 was as the applicant described, and the Tribunal has no reason to doubt his description, the amount would not be income at all.
34. The Tribunal notes that, before the SSAT on 25 July 2005, there is a reference to a letter to the applicant from Centrelink dated 18 April 1997 in which an annotation dated 24 April 1997 relevantly reads:
“Client does not have a 95/96 tax return and will not for a while. Client is going to get his 94/95 tax return done by … He needs to get them fixed and done first. As client has a lot of debts he thinks his taxable income will be approximately $15,000.”
35. This evidence is at variance to the oral evidence given by the applicant to the Tribunal, where he was at pains to explain the difference between his gross income and his taxable income in 1995/1996 and 1996/1997. Having regard to his evidence, the Tribunal accepts that the applicant derived no taxable income as such for either financial year.
36. The Tribunal also accepts that the applicant satisfied the requirements for Newstart Allowance as outlined in paragraph 32 of these reasons. When he made his initial claim on 6 February 1997 and up until 1 September 1999, he has qualified for Newstart Allowance, in that he has been unemployed, he has satisfied the activity test, in that he has been actively seeking and been willing to undertake paid work, and he subsequently made a claim for and was granted Newstart Allowance on 1 September 1999. The Tribunal is satisfied that, during the period 6 February 1997 to 1 September 1999, it is reasonable for s 615(2) of the Act to apply to the applicant. It follows that he is entitled to receive Newstart Allowance from 10 February 1997, when he commenced to receive Family Payment for Reginald, until 1 September 1999 (or the later date he commenced receiving the Allowance in September 1999).
37. At the conclusion of the hearing of the matter, Ms Powell fairly acknowledged that it would be open to the Tribunal to find, on the evidence, that the applicant qualified for Newstart Allowance from 10 February 1997. In making its findings, the Tribunal was conscious of what was said in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at page 68:
“…
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. …”
Further, the Tribunal is not limited to review only the part of the decision sought by the applicant to be reviewed: the whole of the decision is subject to review (see Re Trio and Department of Family & Community Services (2002) 70 ALD 206).
was the applicant given written notice of the decision in aro review 1 made on 22 june 1999?
38. Ms Riley argued that the applicant was not given written notice of the decision of the Authorised Review Officer, made on 22 June 1999, in ARO Review 1. Had he received the notice and appealed the decision to the SSAT, his claim for Family Payment might have been allowed. In support of her argument, Ms Riley again referred to Sevel & O’Connell. She also referred to the decision of Senior Member H E Hallowes in Mulhallen and Department of Family & Community Services (2001) 65 ALD 579. Putting aside the merits of her argument, ss 1302A(1) and 23(12) of the Act are against her. Moreover, s 1302A(1) was amended in 1993, with the inclusion of Note 2 to the section, to specifically address the complications highlighted in Sevel & O’Connell. The sections, as they applied at the time, read:
“23(12) If:
(a)section 1302A of this Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 1302A applies, or sections 28A and 29 apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Note: An example of a circumstance that is likely to satisfy the Secretary that the person did not actually receive the notice is if the notice is sent back to the Department marked "return to sender" or "not at this address" or "whereabouts unknown".
…
1302A(1) If notice of a decision under this Act is:
(a) delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
Note 1: compare section 28A of the Acts Interpretation Act 1901.
Note 2: Notice of a decision is taken to have been given to a person even if the Secretary is satisfied that the person did not actually receive the notice (see subsection 23(12))”.
39. In the circumstances, the applicant is taken to have been given notice of the decision in ARO Review 1, even if the Secretary (the Department) and the Tribunal are satisfied that the applicant did not actually receive the notice. The applicant’s appeal to the SSAT, which was made on 3 February 2004, was more than 13 weeks after he was given notice (or taken to have been given notice under ss 1302A(1) and 23(12)) of the decision in ARO Review 1. Under s 152(4) of the Administration Act, as the applicant applied to the SSAT more than 13 weeks after the giving of the notice, 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 (ie 3 February 2004). As Family Payment has now been replaced by the Family Tax Benefit, a decision that the applicant had an entitlement to Family Payment would be of no current effect.
did the applicant seek a review of the decision in aro review 2, made on 14 july 2004, within 13 weeks?
40. In relation to the decision of the Authorised Review Officer made on 14 July 2004 in ARO Review 2, the applicant appealed to the SSAT on 11 October 2004. This was more than 13 weeks after he was given notice (or taken to have been given notice under ss 1302A(1) and 23(12)) of the decision in ARO Review 2. As the decision under review is the decision of the Authorised Review Officer in ARO Review 2, the appeal should be considered under s 109(1) and (2) of the Administration Act. Section 109(1) and (2) is similar to s 152(4). Under s 109(2), as the applicant sought a review of the decision in ARO Review 2 more than 13 weeks after the giving of the notice, any favourable decision will take effect on the day on which the application for review was made (ie 11 October 2004). Again, as Family Payment has now been replaced by the Family Tax Benefit, a decision that the applicant had an entitlement to Family Payment would be of no current effect.
summary and conclusion
41. For the reasons that have been given, the applicant is not entitled to Family Payment for Reginald and Monique beyond 20 November 1998, when the Family Payment in respect of Reginald was cancelled. However, the applicant is entitled to receive Newstart Allowance from 10 February 1997, when he commenced to receive Family Payment for Reginald, until 1 September 1999 (or the later date (if any) when he commenced receiving the Allowance in September 1999). As the applicant’s appeals to the SSAT in relation to the decisions in ARO Review 1 and ARO Review 2 were not within the time allowed under the Administration Act, they cannot succeed. In any event, because of the introduction of the Family Tax Benefit scheme on 1 July 2000, any favourable decision would be of no current effect.
decision
42. The Tribunal varies the decisions under review and decides that the applicant is entitled to receive Newstart Allowance from 10 February 1997, when he commenced to receive Family Payment for Reginald, until 1 September 1999.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .........J Coulthard.......................................................
AssociateDate of Hearing 4 October 2005
Date of Decision 9 March 2006
Counsel for the Applicant Ms M Riley
Solicitor for the Applicant Welfare Right Centre (SA) Inc
Counsel for the Respondent Ms J Powell
Solicitor for the Respondent Centrelink Legal Services Branch
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