SOCIAL SECURITY- transfer from Austudy to newstart allowance - undeclared earnings - overpayment - Respondent concedes decision to transfer Applicant to newstart allowance incorrect - Applicant a full-time student during relevant period - whether Applicant can be paid arrears of Austudy to the date of the decision - whether Applicant requested a review of the decision within 13 weeks of receiving notice of decision

Social Security Administration Act 1999 - sections 109(2) and 129(1)

Social Security Act 1991 - section 660K(3)

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. This is an application for review of the decision of the Social Security Appeals Tribunal ("SSAT") made on 8 February 2001 to affirm the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") made on 31 August 1999, and affirmed by an authorised review officer on 4 August 2000, to transfer Mr Evangelos Katsiambirtas ("the Applicant") from Austudy payment to newstart allowance.

2. At the hearing of the application on 8 January 2002 the Applicant represented himself and the Respondent was represented by Ms Fahey, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Tribunal had the following documentary evidence before it:

TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1-T26 (the "T-documents")

A1 Copy of a letter from the Applicant to the Respondent 21 April 2001

A2 Academic Transcript of the Applicant 19 January 2001

R1 Respondent's Statement of Facts and Contentions 15 June 2001

R2 Respondent's Amended Statement of Facts and Contentions 4 January 2002

3. The Applicant enrolled in the Graduate Diploma of Education course at the Australian Catholic University in 1999. He received Austudy payment in the first semester 1999, however the Respondent made the decision to transfer the Applicant to newstart allowance in the second semester of 1999 because it considered that the Applicant was not a full- time student in that semester.

4. Following a data matching exercise, the Respondent, on 22 February 2000, raised and sought to recover a debt of overpayment of newstart allowance in the sum of $1,427.43 arising from undeclared earnings by the Applicant.

5. The Applicant is recorded by Centrelink in the T-documents as having requested a review on 28 June 2000 of the decision dated 31 August 1999 to transfer him to newstart allowance. An authorised review officer reviewed and affirmed the decision to transfer the Applicant to newstart allowance on 4 August 2000. (T20) The SSAT affirmed that decision on 8 February 2001. (T2)

(1) whether the Applicant requested a review of the decision to transfer him to newstart allowance within 13 weeks of the date of decision; and

(2) whether the Applicant was a full-time student in second semester 1999.

7. At the conclusion of the hearing before the Tribunal, Ms Fahey, for the Respondent, requested an opportunity to obtain further information from the Australian Catholic University in relation to the Applicant's student status. The Tribunal adjourned the application to allow that information to be obtained by the Respondent. The Tribunal requested that Ms Fahey also obtain a statement from an officer of Centrelink who had been identified by the Applicant as one of the people with whom he raised his concerns about having been transferred from Austudy to newstart allowance. On 21 March 2002, Ms Fahey lodged with the Tribunal an Amended Statement of Facts and Contentions in the following terms:

"The respondent no longer disputes Mr Katsiambirtas' qualification to Austudy payment during the relevant period. Thus, a favourable determination can be made.

The respondent contends that Mr Katsiambirtas did not request a review of the decision to transfer him to newstart allowance within the requisite time for arrears to be payable..."

8. The Amended Statement of Facts and Contentions sets out submissions in support of the contention that no request for a review was made by the Applicant within 13 weeks, referring to a statement by an officer named Azita Samadi, also forwarded to the Tribunal. The Amended Statement of Facts and Contentions continued:

"The respondent contends that as there is no difference between the two payments and there is no effect to the rate of payment to Mr Katsiambirtas if arrears were payable.

The respondent contends that the issue of the newstart allowance debt that arose during this period is not before the Tribunal and will be considered separately given that the qualification to Austudy payment is no longer in dispute."

9. It is therefore unnecessary for the Tribunal to consider whether the Applicant was a full time student during the relevant period, this having been conceded by the Respondent. Therefore, the substantial evidence and submissions put before the Tribunal by both parties in relation to this issue will not be canvassed in these reasons.

10. Section 109(2) of the Social Security Administration Act 1999 ("the SSA Act") provides that if a favourable decision is made by the Respondent and the Applicant is notified of the decision and applies for a review of the decision more than 13 weeks after notice of the original decision, then that favourable decision can only take effect from the date on which the review was requested. Section 660K(3) of the Social Security Act 1991 ("the Act"), which applied at the time of the original decision, provides similarly. (See sections 245 and 247 of the SSA Act). Further, section 129(1) of the SSA Act provides that a person affected by a decision made by the Respondent may request a review of that decision.

11. The Applicant told the Tribunal that he generally does not read the form letters sent to him by Centrelink and so could not confirm or deny having received a letter from Centrelink dated 6 September 1999 which notified him of Centrelink's decision to transfer him to newstart allowance and advised him of his right to request a review (T8). He maintained that he attended the Centrelink office in Redfern on three occasions between July 1999 and December 1999 and argued that he was a full-time student in second semester 1999 and should not be transferred to newstart allowance. He said that on at least one of these occasions he saw an officer called "Azita". He said that he also saw a male officer with whom he argued that he was a full-time student. He said that he showed his enrolment details for second semester to those officers and was told by them that he would not receive any less money on newstart allowance.

12. The Applicant said that he was required to do training with Employment National and that this began to affect his studies adversely but in December Employment National told him that he no longer needed to attend its training seminars.

13. The Applicant said that the officers at Centrelink never told him to put anything in writing in order to have the decision reviewed. When, in cross-examination, the Applicant was referred to his statement to the SSAT that he had accepted the advice of Centrelink officers, he said that at the time he had no choice and was forced to accept that advice or receive no payment at all. He said that Centrelink may have typed some information about appealing the decision on the back of one of its letters but no officer informed him of his right to request a review.

14. The Applicant said that when Centrelink officers had asserted that he was a part-time student, he showed them a Centrelink leaflet in relation to Austudy and said that on the basis of the information in that leaflet he was a full time student. The Applicant conceded that he gave up his argument about his full-time status sometime in October or November because at that stage he did not have any strong reason to appeal because his payments were the same, although he was required to attend Employment National seminars. The Applicant said that his computer record was not accessed by an officer on every occasion that he attended Centrelink between July and December 1999.

15. The Applicant told the Tribunal that in November 1999 he began casual teaching at a Greek school. He said that he thought that he could earn up to $6,000 before his Austudy payments were affected and assumed that similar provision was made in relation to newstart allowance. For this reason he did not declare his earnings to Centrelink.

16. The remainder of the Applicant's evidence related to the issue of his status as a full time or part time student.

17. The statement of Ms Azita Samadi, forwarded to the Tribunal after the hearing, is as follows:

'My name is Azita Samadi and I am a customer service officer in the Employment services team at the Redfern Customer Service centre. I have 4 years experience.

From memory, I saw Mr Katsiambirtas twice since September 1999. I remember discussing his choice of INA provider with him. I do not remember specifically discussing Austudy with him.

However, if I was asked by a customer whether they were eligible to be paid Austudy while in receipt of newstart allowance, I would have told the customer what his options are. I would then have given the customer the option to apply for Austudy.

In the case where a customer disputes the decision to take them off Austudy and put them on newstart allowance, I would then have asked him to appeal, to have the decision reviewed by the original decision maker, and then if necessary, the authorised review officer.

I would not have given him the advice that Austudy is the same as newstart allowance because of the differences in the rate, rent assistance, access to income bank, and the free threshold for each payment. This is knowledge I had at the time in question."

18. Neither the Tribunal nor the Applicant had the opportunity to question Ms Samadi on her statement.

19. Document T8 is a letter to the Applicant from the Respondent dated 6 September 1999 advising him that he will be paid newstart allowance. The letter also, in the penultimate paragraph, advises the Applicant as follows:

"If you think our decision is wrong, phone us or come and see us. We will check the facts and explain the decision. If you still do not agree, you can ask for one of our Authorised Review Officers (ARO) to look at it. The ARO is an officer who has no previous involvement in your case, and if the decision is wrong, the ARO can correct it. The ARO can also tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree. Both the ARO review and the SSAT appeal are free. Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you may only get back payment from the date you ask."

20. Exhibit R3 is a Customer Record Access Monitor (CRAM) Report, a record of occasions on which Centrelink officers have accessed the Applicant's computer record. The report shows the Applicant's record having been accessed on 19 different days between 31 August 1999 and 3 November 1999. The report does not extend beyond 3 November 1999.

21. The Respondent has conceded that the Applicant was a full-time student during the relevant period and so continued to be qualified to receive Austudy payment. The issue that remains is whether the Applicant can be paid arrears of Austudy payment to the date of the decision (now conceded to have been incorrect). This turns on whether the Applicant sought a review of that incorrect decision within 13 weeks of receiving notice of the decision. In this respect, the Tribunal accepts that the letter from the Respondent to the Applicant dated 6 September 1999 (T8) was notice of the decision.

22. The Applicant's evidence was that he attended the Centrelink office in Redfern on three occasions between July 1999 and December 1999 and argued that he was a full-time student, that he provided his enrolment details for second semester to the officers he spoke to and was advised by them that he would receive no less money on newstart allowance. The Tribunal notes, in this respect, that document T9, provided to the Tribunal by the Respondent, is a copy of the Applicant's results for second semester of 1999, that the document is addressed to the Applicant and the date of its issue is 17 December 1999. The Tribunal also notes the Applicant's evidence that he spoke to more than one officer at Centrelink about his status as a student.

23. The evidence of Azita Samadi was that she recalls seeing the Applicant on two occasions after September 1999. She has no recollection of "specifically discussing Austudy with him". The remainder of her evidence goes to her usual practice but not to her particular dealings with the Applicant. The Tribunal also notes that the Applicant's evidence was that he also spoke to another, male, officer about his student status.

24. The CRAM report (Exhibit R3) indicates occasions on which the Applicant's computer record was accessed by Centrelink officers. This is not, of course, conclusive evidence of the occasions on which the Applicant made contact with the Respondent, as contact could have taken place with no accessing of his computer record.

25. The Applicant's evidence to the Tribunal and the SSAT has consistently been that he voiced to the Respondent, on a number of occasions after September 1999, his objection to being regarded as a part time student and being removed from Austudy payment. His evidence has also consistently been that after being told on a number of occasions by Centrelink officers that his rate of payment would remain the same, he pressed the matter no further. At the hearing of this application he also said that, in the face of opposition from Centrelink officers, he considered he had a choice between receiving newstart allowance, with the requirement that he participate in jobsearch activities, or receiving no payment at all.

26. The Tribunal accepts the Applicant's evidence that he raised his objection to being transferred from Austudy payment to newstart allowance on a number of occasions after he received notice of the decision and before the expiration of 13 weeks, with two officers of the Respondent, including Ms Samadi. However, the date of issue of the Applicant's academic record for second semester of 1999 (dated 17 December 1999) indicates that this could not have been provided to the Respondent by the Applicant within that 13 week period.

(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".

"129.(1) Subject to subsections (3) and (4), a person affected by:

(a) a decision of an officer under the social security law; or

(c) a decision of an officer under the Farm Household Support Act 1992; or

(e) a decision under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under section 96-2(7) of that Act;

may apply to the Secretary for review of the decision".

29. Section 129(1) of the Act is silent on the correct form of an application to the Secretary for review of a decision. However, the question of what constitutes an application for review has been considered by the Tribunal on a number of occasions.

30. In Re Frost and Secretary, Department of Social Security (AAT 10360, 17 August 1995), the Applicant in that case had applied for carer pension in July 1992, providing details of rent paid. When her pension was granted without rent assistance, she inquired about the rate within three months of grant but was given incorrect information about why the rate was less than expected. She finally sought and gained payment of rent assistance in January 1994 but the payment was only backdated for three months. In relation to the Department's submission that the Applicant's inquiry to the Department was "merely a query as to rate of pension" the Tribunal said:

"10. [The Department] . . . urging that the Tribunal should find that the applicant somehow forfeited her entitlements by failing to use the magic word "review". That is high-handed nonsense which totally ignores the scheme of the legislation. It reflects a Departmental attitude that is totally at odds with the attitude shown for many years now by the Department of Veterans' Affairs. That Department treats, properly so in the view of the Administrative Appeals Tribunal, the most informal query as a request for review - that is, it does so if that is necessary in the particular circumstances of a case. If however, it is a matter calling only for correction of error, then correction is effected forthwith.

11. I am of the view that on the facts of Mrs Frost's case the concept of review should not have entered into the arena. She applied for her pension. She indicated that she was a rent-payer and she advised at the outset the amount of that rent.

12. The quantum of her entitlement as originally assessed was erroneous. The error was entirely that of the Department. Immediately, but with negative results, she queried the matter. She continued to query the matter until January 1994. In the face of her constant queries the Department consistently compounded its error."

31. In Re Secretary, Department of Social Security and Marsh (1996) 42 ALD 639, the Tribunal considered circumstances where the Department had incorrectly included investment income in its calculation of rate of sole parent pension, notwithstanding that review forms lodged by the Respondent showed a substantial decrease in that income over the relevant period. The Tribunal found that the Respondent had telephoned the Department's general inquiries number to inquire about the rate of investment income maintained by the Department and concluded that this contact constituted an application for review. The Tribunal said at ALD 643:

"14. On the question of when the first request for a review was made, the Tribunal takes a different view from that submitted on behalf of the Department. In the Tribunal's view, the Department has a mandate to deal with a wide cross section of the public, many of whom are socially and/or emotionally, intellectually or physically handicapped in some way. When a customer telephones the Department and expresses concern about specific matters relating to the calculation of pension entitlements, the Tribunal is prepared to apply a very broad definition of the term "application for review". In the present case, Ms Marsh swore that she definitely was worried about the inclusion of bank interest payment as part of her total income. The Tribunal accepts her evidence and finds that she voiced this concern to the officer of the Tele-Service-Branch. Given the nature of many of the customers who would be likely to use that Tele-Servicing process, the Tribunal considers that the officer receiving such calls should be sufficiently well trained, and alert enough, to identify a possible concern about the calculation. It is up to the Department, in those circumstances, to go forward to assist the enquirer both to formulate the inquiry in words and also to take a basic simple first step of checking to see whether the concern might possibly be justified. This would merely mean asking the customer her name and details and calling her record up on the computer screen. This was what Ms Marsh was hoping for and in this sense, she was asking for her matter to be reviewed. A cursory glance at the screen would have shown the officer that the amount being maintained as the bank balance and the interest calculated thereon were grossly out of touch with the present bank balance being claimed by the respondent. That should have alerted the officer, if any reasonable system was in place, to have referred the matter immediately to the SPP section or at least alerted him/her to give appropriate advice to Ms Marsh on what she should do to follow up and formalise her application for review."

32. These decisions show a flexible approach by the Tribunal to the question of what constitutes an application for review of a decision. In my view, that approach is appropriate to the business of the Respondent in this application, concerning, as it does, "a wide cross section of the public, many of whom are socially and/or emotionally, intellectually or physically handicapped in some way" (Re Secretary, Department of Social Security and Marsh [supra]). In this application, the Applicant's perception that his choice was to accept newstart allowance or receive no payment at all, added, in my view, to the need for sensitivity on the part of the Respondent to his need for assistance or, at the very least, a recognition of the Applicant's right to have the decision reviewed.

33. The Tribunal concludes, therefore, that the Applicant did request a review of the decision to transfer him from Austudy payment to newstart allowance within 13 weeks of receipt of notice of the decision. The decision has now been conceded by the Respondent as incorrect and it is the Respondent's advice to the Tribunal that "...a favourable decision can be made" (Respondent's Amended Statement of Facts and Contentions). The Applicant having requested a review of the original decision within 13 weeks of notice of that decision, the date of effect of the favourable decision will be "the day on which the determination embodying the original decision took effect" (section 109(1) the SSA Act).

34. The decision under review is set aside and in substitution therefor it is decided that the Applicant is qualified to receive Austudy payment for the 1999 year. This decision takes effect from 31 August 1999.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: .....................................................................................