DECISION AND REASONS FOR DECISION [2002] AATA 493

And: Secretary, Department of Family and Community Services

Decision The Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid newstart allowance for the period 8 May 2000 to 5 November 2000, without imposition of an activity test breach rate reduction. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant newstart allowance in accordance with this decision.

SOCIAL SECURITY- 13 week rule - effect of leaving employment voluntarily- 18 per cent activity test breach rate reduction- whether Applicant requested a review of the decision within 13 weeks of receiving notice of decision

Social Security (Administration) Act 1999 section 109(2)

Catt v Secretary, Department of Family and Community Services [2000] AATA 1101

Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995)

Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639

1. The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 11 May 2000 (T5) as affirmed by the Authorised Review Officer on 16 October 2001 (T26A) to impose an 18 per cent activity breach rate reduction on Mr Riley's ("the Applicant") newstart allowance for a period of 26 weeks form 8 May 2000 to 5 November 2000.

2. On review by the Social Security Appeals Tribunal ("SSAT") the decision was set aside and it was held that the Applicant did not breach the activity test and no breach rate reduction was therefore to be applied. The date of effect of that decision was 19 September 2000, the date which the Applicant was found to have sought review of the decision under review.

3. A hearing was held before the Tribunal on 12 June 2002, at which the Applicant appeared without representation and the Respondent was represented by Cheryl Collis, an advocate from the Advocacy and Administrative Law Team at Centrelink.

4. The Applicant worked for Mobile Storage Systems from 2 February to 19 April 2000. On 11 May 2000, he lodged a claim for newstart allowance. On 11 May 2000, the Applicant was informed in writing that an 18 per cent activity test breach rate reduction would be applied to his newstart allowance for a period of 26 weeks from 8 May 2000 to 5 November 2000 because he was considered to have left his position with Mobile Storage Systems voluntarily.

5. The SSAT found, however, that at the time the Applicant left work he was suffering psychotic symptoms which would have made it very difficult for him to maintain full-time employment and concluded that it was reasonable for the Applicant to have voluntarily left his job. That meant the Applicant did not fail the activity test, and therefore no activity test breach rate reduction period was to be imposed.

6. The only issue before the Tribunal therefore was whether the Applicant had requested a review within 13 weeks of the decision to impose an 18 per cent activity test breach rate reduction on his newstart allowance.

7. The relevant legislation in this matter is the Social Security (Administration) Act 1999, in particular section 109(2). That section, so far as is relevant, provides as follows:

"s109(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."

8. The effect of that section is that if a person applies for a review of a decision more than 13 weeks after being notified of the decision, a subsequent favourable determination takes effect on the day the person requested the review. (If a person applies for review within 13 weeks the favourable determination can come into effect from the date of the original decision.)

9. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

10. In addition, the following documents were tendered:

A3 Social Security Appeals Tribunal's letter 21 November 2001

R1 Respondent's Statement of Facts and Contentions 20 May 2002

R3 Extract from Social Security Act 1991

11. The Applicant gave sworn evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.

12. The Applicant gave evidence that he had attended the Penrith office of Centrelink on 8 May 2000. There he had seen a consultant by the name of 'Andrew', with whom he discussed his newstart application and the circumstances of his leaving the work. Andrew advised him that it was likely that he would receive an 'activity breach' because he had left work voluntarily.

13. An appointment was made to see Andrew again, on 11 May 2000, at which time the Applicant provided a completed claim for newstart allowance (T4A, pp14-21) and a claim for job network assistance while looking for work (T4B, pp 22-32). The Applicant said that Andrew listened to his concerns but told him that the 'breach would stand' and that if he wished to take it further he would need to 'write a letter'.

14. In cross-examination, the Applicant said he did not specifically say to Andrew: 'I wish to appeal'.

15. About a week later, the Applicant received a letter from Centrelink dated 11 May 2000 (T5, pp33-35), which confirmed that he would be paid newstart allowance from 8 May 2000, but there was an activity test breach because the Applicant had left his previous job voluntarily. Because of this, the Applicant's rate of newstart allowance was to be reduced by 18 per cent until 5 November 2000.

16. About another week later, the Applicant again went to Centrelink at Penrith with a view to seeing Andrew again. However, Andrew, was on holidays and the Applicant was instead referred to another consultant, Joe Galea. As advised by Andrew, the Applicant prepared a handwritten letter, not addressed to anyone in particular, about his leaving work. He handed it to Joe and told him that it was in relation to an appeal. Joe called the section manager, Jim Martin, who "had a quick read" of the papers while the Applicant was there. He was told that Andrew would attend to it on his return from holidays. The Applicant saw Joe write a summary on the computer. He understands that there is no record of his attendance on that day and can only assume that the computer record has been deleted. He has confronted 'Joe' about this many times without success. He has also asked Welfare Rights to inquire on his behalf about the record's disappearance, again without success. In cross-examination he could offer no reason why Centrelink might have deleted the record.

17. Between the attendance at Centrelink in late May or early June and when Centrelink moved from Henry Street to High Street in Penrith, which was in about July 2000, the Applicant submitted to Centrelink another three or four handwritten queries about the decision. He did not retain copies of these documents, nor do any of those documents appear on Centrelink's files. He could only suggest that they had been thrown away or had been lost in the move from Henry Street to High Street or had been lost when his papers were transferred to Maroubra, when he moved there for about three months in March 2001.

18. In cross-examination, it was suggested to the Applicant that while it might be possible for a letter to Centrelink to go astray, for Centrelink to lose five, would be bizarre. The Applicant said he was only following their procedures.

19. The advocate for the Respondent invited the Applicant's attention to the record of his evidence before the SSAT (T2, p11). He was reported there, as saying that he keeps copies of everything, although he did not have copies of letters from that period. The Applicant noted that he was mentally ill at the time and was possibly confused. He also said his SSAT hearing was by phone so they may have been mistaken.

20. Similarly, it was suggested to the Applicant that he was confused as to the timing of his consultations with Joe, and that he had not seen him at the time he had claimed, that is, within a couple of weeks of the letter of 11 May 2000.

21. In this regard the advocate for the Respondent invitedattention to T20 dated 27 September 2001, as follows:

"Client was seen by myself on 11/5/2000 for NSA ncl i/v at penrith csc from my notes on ncl action sheet SS228 & also from my recollection of - - i/v with client he apparently ceased work with mobile storage systems as he stated he had problems with employer's religion and that they ----- had not office equipment such as mobile phones, faxes, computers etc. .at the time I advised client this was not acceptable reason for resigning job & applied 18% RRP breach under sections 601(1), 628, 644AA & also..630A SSA for 26 wks. this applied from 08/5/00 to 5/11/00. I would..."(T20, p62)

no record of client requesting a rvw of my decision and I cant recollect him doing so.....on 19/9/2000 & saw section manager jim martin X62 & advised him he wanted to appeal decision........I was on leave at time client attended on 19/9/00/"(T20, p63)

client had since attended maroubra csc several occassions during last 6 months apparently commencing around 26/6/01......client stated he appealed within 3 months of decision of breach & nothing done......there is no evidence from file or DOC's to confirm this clear other than the file note of 19/9/00 when he attended penrith csc & requested ODM review." (T20,p64)

The decision breach of 19/04/00 to stand & case forwarded to ARO....he then failed to attend or contact further even after had given him my direct phone and contact details. In any case client contacted well...outside 3 months of the date of the decision of 11/5/00 & failed to proceed with any ODM appeal" (T20, p65)"

22. In response, the Applicant repeated his contention and said he was following the procedures.

23. There was some discussion about the document at T7, which bears a notation of June 2000 and which the Applicant said was about the fifth document he submitted complaining about the decision.

24. The advocate for the Respondent pointed out that the document had not been date-stamped as it should have been. The Applicant said he did not see if that document, nor others he submitted were date-stamped but it was not his problem if Centrelink did not follow its own procedures of consultants date-stamping all documents. The Applicant noted that there were other documents in his file which were not date-stamped, for example T19 (pp59-61).

25. The Tribunal enquired as to the source of document T7. The advocate for the Respondent said the Applicant must have tendered it before the Social Security Appeals Tribunal, but the Tribunal observed that the Applicant's hearing had been by telephone. The Applicant said it was included in the bundle of papers provided by the Social Security Appeals Tribunal which he understood had been obtained from Centrelink at Maroubra.

26. The Applicant said he continued to attend Centrelink at Henry Street, at Maroubra, and later at High Street. He said he continued to enquire about his appeal and he was handed around from consultant to consultant and people were laughing at him. Finally, on 19 September 2000, he asked to see the manager, Jim Martin, because, by that time, he was very angry that his appeal had not been actioned. This was the first time he had been 'taken seriously' and he tendered a copy of a Centrelink file note (Exhibit A2) as follows:

A/N attended Tuesday 19/9 to appeal against decision to breach for voluntary unemployment. He wrote out this statement and said something about the employer being a religious group called the brethren. I told himyou would contact him re your ODM & pass it on to ARO if he was not satisfied.

27. The Applicant had written on the document that it does not appear in his Centrelink file. The advocate for the Respondent appeared not to have seen the document previously.

28. Although the note appears to be addressed to 'Andrew', the Applicant said that he only saw Andrew on two occasions, specifically, on 8 and 11 May 2000. Since then his claim has been managed by other consultants.

29. The Applicant pointed to a number of errors in his Centrelink file. For example, he noted that T11 is dated 2 April 2001. T11 attaches T10, which is date-stamped 27 February 2001.

30. The advocate for the Respondent asked the Applicant in cross-examination about T10. In particular, she invited his attention to its heading:

31. She also pointed out to the Applicant that he said:

"It has taken over 1 year without any results-responses nor notification........... and receive letters in mail stating if I don't attend the appointment (on every occasion) I conducted them! I will no longer be paid newstart allowance"

32. She enquired how a document 'dated' April 2000 (that is before the decision under review) could refer to a 12 month delay. She suggested that the conclusion of the SSAT (T2,paragraph 24) that it was in fact written in April 2001 was correct. The Applicant said that the document referred to events from April 2000 when he left work. It is the annexure referred to in T11, dated 2 April 2001. The Applicant was not suggesting that he had April 2000 as the date of the document and the SSAT had misinterpreted the document.

33. The Applicant submitted that he was an honest and upright person. He had had many contacts with Centrelink after the decision to impose the activity test breach, namely, five letters disputing the decision in 3 months. With the benefit of hindsight he should have kept copies of all his dealings with Centrelink. He regarded Centrelink's attention to his appeal as 'inadequate and insufficient'. The result for him was that he was unable to pay his bills and, for a time, had to live on the street.

34. No witnesses were called on behalf of the Respondent.

35. The advocate for the Respondent noted that the Applicant did not dispute that he had received notification of the letter advising him of the activity test breach rate reduction. That letter also informed the Applicant of his appeal rights.

36. In relation to the Applicant's evidence that he had requested a review in no less than five letters, which he handed in to Centrelink, the advocate for the Respondent submitted that, although it was possible that one might go astray, or not be date-stamped, it was improbable that all five could not be accounted for. She said there was a strong contention that the letters were not written.

37. She noted that in addition to there being no documents on Centrelink's files, there was no documentary evidence on Centrelink's computer of any conversation between the Applicant and Joe Galea and Jim Martin in or about late May or early June 2000, as alleged by the Applicant. The first evidence of the Applicant's wish to appeal is 19 September 2000 (T13, pp48-49).

38. The advocate for the Respondent relied on the findings of the SSAT in relation to document T10, that is, that it erroneously recorded the date as April 2000, instead of 2001.

39. The advocate also referred the Tribunal to the information which had been available to the SSAT about the Applicant's mental health. She submitted that it was probable that his condition may have been responsible for his belief that he had lodged the application for review within 3 months of the decision under review.

40. The advocate also invited the Tribunal's attention to the Applicant's evidence that he did not specifically tell Andrew that he wished to appeal. Andrew had told him to do it in writing.

41. The Tribunal was referred to Catt v Secretary, Department of Family and Community Services [2000] AATA 1101 which observed that there can be no discretion where an application for review is made more than 13 weeks from the date of the decision under review.

42. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

43. As noted above, the only issue before the Tribunal was whether the Applicant had requested a review within 13 weeks of the decision to impose an 18 per cent activity test breach rate reduction on his newstart allowance. The letter advising him was dated 11 May 2000, and his evidence, which the Tribunal accepts, was that he received the letter about a week later. Therefore, in order to have his newstart allowance re-instated for the entire period of his entitlement, he would have had to have sought a review by about 16 August 2000.

44. The Applicant's evidence, which was not disputed, was that he had attended the Penrith office of Centrelink on 8 May 2000 and had seen a consultant by the name of 'Andrew'. He had been informed of the likelihood of receiving an 'activity test breach' because he had left work voluntarily. He returned on 11 May 2000 with his completed claim form and Andrew told him that the 'breach would stand'. He was told that if he wished to take it further he would need to 'write a letter' but, his evidence in cross-examination was he did not specifically say: 'I wish to appeal'.

45. The Applicant's evidence was that about a week after receiving the written confirmation of the imposition of the activity test breach he again went to Centrelink at Penrith with a view to seeing Andrew. However, Andrew was on holidays and he was instead referred to another consultant, Joe Galea. He said he handed to Joe a handwritten letter and told him that it was in relation to an appeal. Joe called the section manager, Jim Martin, and the Applicant was told that Andrew would attend to it on his return from holidays. The Respondent asked the Tribunal to infer that as the document cannot be located by Centrelink, it does not exist. In support of this contention, the Respondent referred the Tribunal to the Applicant's evidence that at least three other documents claimed by the Applicant to have been submitted at about that time, also cannot be located. It was submitted that this was improbable.

46. While the advocate for the Respondent expressed some incredulity that documents could be so readily misplaced, there was no dispute about the authenticity of a copy of the Centrelink file note (Exhibit A2), which, according to the Applicant, does not appear on Centrelink's file. Notwithstanding its obvious relevance, it does not appear in the T documents, and there is no evidence to contradict that of the Applicant that it, too, has been misplaced from the Centrelink file.

47. The Applicant's evidence was that he saw Joe write a summary on the computer, but this does not now appear on Centrelink's computer records. The Respondent asks the Tribunal to draw an inference from the absence of this record, presumably that the consultation did not occur. It was suggested to the Applicant that he was confused as to the timing of his consultations with Joe, but the Applicant denied this was the case. In this regard the advocate for the Respondent referred the Tribunal to the report of information before the SSAT about the Applicant's mental health. It was submitted that it was probable that his condition may have been responsible for the Applicant's belief that he had lodged the application for review within 3 months of the decision under review. That report of information is to the effect that the Applicant may have been experiencing psychotic symptoms at the time he left his job in April 2000, such that he would have found it very difficult to maintain full-time employment. There was no report of information as to how the Applicant was affected, and in particular, no evidence about his cognitive skills.

48. The Tribunal was not prepared to find, on the available evidence, that his cognitive skills were so affected as to be responsible for an error in his (consistently expressed) recollection of dates.

49. The Tribunal observes that, notwithstanding that the Respondent had in its files references to 'Andrew' and 'Joe', neither was called by the Respondent to refute the Applicant's contentions about the interviews the Applicant said he attended. Similarly, Jim Martin, to whom the Applicant referred, and who appears to have been the author of the note of 20 September 2000 (Exhibit A2), was also not called by the Respondent.

50. In relation to document T7, there was no evidence before the Tribunal that all documents lodged with Centrelink are to be date-stamped. There are other documents in the Applicant's file which were not date-stamped and the Tribunal draws no conclusion in relation to whether documents should or should not have been date-stamped. As to the source of document T7, it had been contended on behalf of the Respondent that the Applicant must have tendered it before the SSAT. However, there was no evidence before the Tribunal to contradict the Applicant's evidence that it was included in the bundle of papers provided by the Social Security Appeals Tribunal, which he understood had been obtained from Centrelink at Maroubra.

51. There was also no evidence to contradict the Applicant's account that when he could obtain no information about the progress of his appeal, finally on 19 September 2000, he asked to see the manager, Jim Martin. The Tribunal found the tendered file note (Exhibit A2) to be somewhat equivocal. It appears to be a contemporaneous note of the Applicant's first attendance in order to appeal. However, the Tribunal formed the view that it was also consistent with a file note which would be made when other notations of the Applicant's previous complaints about the decision were missing from his records, particularly in view of the Applicant's evidence that this was the first time he had been 'taken seriously', and in the absence of evidence from 'Jim' (Martin), the author of the note.

52. The Tribunal also observes that although the note requires attention by 'Andrew' that would be likely to necessitate a consultation with the Applicant, it was the Applicant's evidence that he only saw Andrew on two occasions, on 8 and 11 May 2000. Andrew was not called to contradict this.

53. In relation to T20, the Tribunal observes that the author, apparently Andrew, notes that he has no record of the Applicant requesting a review of the decision, nor does he recollect him doing so. This is not necessarily inconsistent with the Applicant's own evidence. The Applicant's evidence was that he was told to put a request for review in writing. Andrew was not called to refute this. The document refers to Andrew's usual procedure, but does not say what that is. The Applicant's evidence that he was told to 'write a letter' is uncontroverted. That Andrew records that he was on leave when the Applicant attended at Penrith on 19 September 2000 is not inconsistent with him being on leave earlier in the year when the Applicant said he tried to see him. Again, in the absence of this witness, the Tribunal prefers the evidence of the Applicant.

54. The Tribunal reviewed the cases in relation to what constitutes an application for review for the purposes of section 109, in particular Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995) and Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639. In each of those cases the Tribunal was prepared to apply a very broad definition of the term 'application for review'. In neither case did the Centrelink 'customer' specifically use the word 'appeal' or 'review' but had merely queried information which had been provided about her entitlements.

55. The Tribunal was therefore of the view, on the balance of probabilities, that the Applicant had a consultation with 'Andrew' on 11 May 2000, in which he expressed concern about the imposition of an activity test breach. He was told to write a letter in order to appeal. On the authorities referred to above, this would, itself, in the Tribunal's view, suffice to amount to an application for review for the purpose of section 109 of the Act.

56. Even if this were not the case, his subsequent consultation with 'Joe' at the end of May or early June 2000 would, on the available evidence, also amount to an application for review.

57. The Tribunal finds that the Applicant had requested a review of the decision of 11 May 2000 to impose an activity test breach rate reduction from 8 May 2000 to 5 November 2000 within 13 weeks of that decision.

58. The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid newstart allowance for the period 8 May 2000 to 5 November 2000, without imposition of an activity test breach rate reduction. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant newstart allowance in accordance with this decision.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: S.Swamy .....................................................................................