Stapleton and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 54 (23 January 2009)

Last Updated: 28 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4151

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MARY STAPLETON

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Date of Decision 23 January 2009

Date of Written Reasons 27 January 2009

Place Sydney

Decision

The decision under review is affirmed.

....................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – payments cancelled – late application for review of Centrelink’s decision – newstart allowance restored from date of application – statutory time frame prevents payment of arrears – decision under review affirmed.

Social Security Act 1991 (Cth) s 23(12)

Social Security (Administration) Act 1999 (Cth) ss 109(1) and (2), 237

REASONS FOR DECISION

23 January 2009

Ms Robin Hunt, Senior Member

INTRODUCTION

1. Mary Stapleton was granted newstart allowance and received payments more or less continuously except for a period at issue for the review. For just over three months, Mrs Stapleton’s payments were cancelled because Centrelink could not locate her and she failed to respond to notices. Mrs Stapleton had given to Centrelink as her residential address the address of a friend because Mrs Stapleton had no fixed address at that time. Centrelink sent notices to Mrs Stapleton at this incorrect residential address requiring her to make contact. Mrs Stapleton was unaware of the notices as she did not check for mail at the address she had given Centrelink and made no other contact with Centrelink. As a result, her newstart payments were cancelled. By the time Mrs Stapleton visited a Centrelink office and requested restoration of her payments, it was too late to pay her arrears as she had not furnished information required over the period and did not request review of the cancellation decision within the statutory time frame.

ISSUE

2. I had to decide for the review if Mrs Stapleton should receive arrears of newstart allowance for the period 14 February 2008 to 26 May 2008.

CONSIDERATION AND FINDINGS

3. Mrs Stapleton was unrepresented at the tribunal hearing and gave evidence by telephone. She explained that she and her husband had separated and she sold the marital home in October 2007. Centrelink granted her newstart allowance on 24 October 2007. Marital difficulties and sale of the matrimonial home, Mrs Stapleton said, left her homeless for some months and made it difficult for her to provide a residential mailing address to Centrelink. Centrelink requires a contact address in order to notify social security recipients of their obligations from time to time and to maintain payments.
4. Centrelink records show that Mrs Stapleton attended a Centrelink office on 13 February 2008. Her newstart allowance payments had been cancelled from 30 January 2008 as her whereabouts were unknown. Upon her attendance and request for restoration of payments, a Centrelink officer made a file record of her discussion with Mrs Stapleton and processed payment to her of arrears on that occasion. Centrelink also mailed notices to her on that day, mailing the notices to the address Mrs Stapleton had furnished.
5. Mrs Stapleton gave evidence about what occurred at Centrelink on 13 February 2008 and said that an officer insisted she must provide Centrelink with a residential address for payments to continue. As Mrs Stapleton had no fixed address at the time and also did not wish her estranged husband to learn of her whereabouts, she was unable to give a true residential address. Mrs Stapleton gave further evidence that she tried to persuade the officer to register a post office address as her contact but the officer insisted on a residential address. Although she had no such address, Mrs Stapleton therefore gave the address of a friend. This address was nowhere near where Mrs Stapleton was residing at any time during the period after 13 February 2008, and Mrs Stapleton never asked her friend to forward mail to her. Nor did Mrs Stapleton check again with Centrelink until 27 May 2008. Mrs Stapleton gave evidence she was afraid her friend would pass on to her estranged husband her new address if she disclosed this information. Mrs Stapleton further said she was afraid of her husband and did not want him to know where she was.
6. Notices which Centrelink sent to Mrs Stapleton on the day of her visit, 13 February 2008, to the address she supplied, informed Mrs Stapleton that she must do certain things to ensure her newstart payments continued. One notice stated she must personally take to Centrelink, on 26 February 2008, a form which accompanied the notice. Another notice stated that she must return the form to Centrelink immediately and that payment would stop if the form accompanying that letter was returned late.
7. A Centrelink officer made a file note that she issued Mrs Stapleton with a duplicate form when Mrs Stapleton attended at Centrelink on 13 February 2008. Mrs Stapleton did not recall this happening but agreed she must have provided information on that day. She denied that she was required to report to Centrelink every two weeks although letters sent to her say so. Mrs Stapleton gave evidence she thought she had to report or supply a written statement only every three months.
8. On 20 February 2008, Centrelink again wrote to Mrs Stapleton notifying her that her payments would be stopped from 21 February 2008 because Centrelink had been unable to contact her at the address she supplied. Mrs Stapleton gave evidence she had not received this letter. She argued this was not her fault as she had made it plain when dealing with the Centrelink officer on 13 February 2008 that she was not living at the address she supplied and had wanted to give a post office address for mail. I accept that Mrs Stapleton did not receive these letters as a Centrelink file note made on 14 March 2008 records that mail sent to Mrs Stapleton was returned and was stored as her whereabouts were unknown.
9. Mrs Stapleton told the tribunal she had received no mail of any kind from around October 2007 onwards until she established herself at her present address. During February 2008, she received nothing from Centrelink or from her bank or any other source. As she was not in touch with her bank and saw no statements, she was unaware that newstart payments had ceased on 21 February 2008. Another reason for her failing to notice the payments stopped was that she had proceeds of sale of the matrimonial home in her bank account which kept her in funds.
10. On 27 May 2008, Mrs Stapleton contacted a different branch of Centrelink seeking payment of disability support pension (‘DSP’). During a discussion in the Centrelink office, the officer who saw Mrs Stapleton obtained information and added a note to assess Mrs Stapleton for newstart allowance while she was awaiting a decision on her entitlement to DSP. The next Centrelink file note sets out that Mrs Stapleton was granted newstart from the date of her contacting Centrelink on 27 May 2008.
11. On 21 July 2008, Mrs Stapleton again contacted Centrelink about the start date of her newstart payments. Her query was treated as a request for review of a decision not to commence her payments sooner than the date she made contact on 27 May 2008, and an authorised review officer considered the matter but, on 23 July 2008, confirmed that the correct start date was 27 May 2008. The Social Security Appeals Tribunal affirmed this decision on 7 August 2008, observing that Mrs Stapleton had not advised Centrelink of the sale of her house or requested review of the cancellation decision until more than 13 weeks after the decision to stop payments was made.
12. While I did not take evidence from Mrs Stapleton about her financial position during the period her newstart payments ceased, the Secretary did not suggest that she would not have been entitled to payment of newstart allowance from 14 February 2008 to 26 May 2008. However, provisions contained in section 109 of the Social Security (Administration) Act 1999 (‘the Administration Act’) prevent backdating of any entitlements to a date earlier than 27 May 2008. Subsection 109(1) provides that the effective date of a favourable determination on a review application made within 13 weeks after notice is given of the original decision is the date of the original decision. Subsection 109(2) further provides that if a decision is made in relation to a person’s social security payment and notice is given to the person of the decision, and the person applies for review of the decision more than 13 weeks after notice is given, a favourable determination made as a result of the application, takes effect on the day the application was made. This means that the effective date in Mrs Stapleton’s case is 27 May 2008. Centrelink decision-makers and I, as a member of the tribunal, sitting in place of the Secretary, cannot ignore section 109 of the Administration Act.
13. Mrs Stapleton claims that she was unable to furnish a residential address to Centrelink on 13 February 2008 and during the period when her payments ceased until she re-established herself. She was afraid to divulge her whereabouts in case this led to her estranged husband locating her. She was able to provide a new address on 27 May 2008 when she next went to Centrelink. Mrs Stapleton also claimed medical problems made it difficult for her to cope. However, Mrs Stapleton’s not receiving the Centrelink notices in February does not change the position. Subsection 23(12) of the Social Security Act 1991 (‘the Act’) provides that notices sent in accordance with section 237 of the Administration Act fulfil notice requirements even if the notices are not received.
14. As Mrs Stapleton applied to Centrelink for review of the cancellation decision of 20 February 2008 on 27 May 2008, that is, more than 13 weeks after the making of the decision, payment of newstart allowance may commence only on 27 May 2008 as the result of the consequent favourable decision that she was entitled to newstart allowance. Section 109 of the Administration Act prevents the payments being backdated beyond the date of her application for review.
15. There are two further avenues Mrs Stapleton can pursue. They involve the Compensation for Detriment caused by Defective Administration scheme and the Commonwealth Ombudsman. Neither of these courses of action is within the tribunal’s jurisdiction. The Secretary’s representative offered to assist Mrs Stapleton in making a claim under the compensation scheme but at the same time emphasised that Mrs Stapleton’s action in this respect might not be successful as such payments are an act of grace.
16. If a Centrelink officer has not followed appropriate procedures or there was a failure of best practice in Mrs Stapleton’s case she may be entitled to compensation. I note in passing that Centrelink guidelines for the grant of special benefit in domestic violence cases indicate that the address of the recipient should be kept confidential for a period. Mrs Stapleton says she was in a similar position involving domestic violence but there is no evidence she was offered the option of this sort of protection according to the material before me. I am unable to make any findings about what actually occurred or to take a request for special consideration into account because of section 109. It follows that I must affirm the reviewable decision.

DECISION

17. The decision under review is affirmed.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................

Jennifer Wong, Associate

Date/s of Hearing 23 January 2009

Date of Decision 23 January 2009

Applicant’s representative Self-represented

Respondent’s representative Ms P Lee, Centrelink Legal Services and Procurement Branch