Bitar and Secretary, Department of Family and Community Services [2003] AATA 64 (22 January 2003)

Last Updated: 23 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/1013

GENERAL ADMINISTRATIVE DIVISION	)
	Re	KHALED BITAR

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mrs Joan Dwyer, Senior Member

Date 22 January 2003

Place Melbourne

Decision

1. The Tribunal varies the decision under review to provide: "Mr Bitar was entitled to payment of newstart allowance from 28 November 2000 to 23 March 2001. However s 109(2) of the Social Security (Administration) Act 1999 prevents effect being given to that favourable determination from a date earlier than 21 May 2002." 2. The Tribunal recommends that favourable consideration be given to Mr Bitar's application under the Compensation for Detriment caused by Defective Administration scheme.

(Sgd) Joan Dwyer

Senior Member

SOCIAL SECURITY NEWSTART ALLOWANCE - whether payable during trip to Lebanon to see dying brother - whether special circumstances such that it would be unreasonable to require compliance with activity test - whether an "allowable absence" for portability test in s 1217 of Social Security Act 1991

COMPENSATION FOR DETRIMENT CAUSED BY DEFECTIVE ADMINISTRATION - whether precludes decision that applicant entitled to payment for time more than 13 weeks earlier - acknowledgment of errors in administration - evidence of failures to institute appropriate administrative procedures - form of decision - recommendation for favourable consideration - further recommendation that consideration be given to allowing payment under CDDA scheme in clear cases without expense of an AAT hearing

Social Security Act 1991 ss 593(1), 601, 603A 1212A and 1217

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

REASONS FOR DECISION

22 January 2003

Mrs Joan Dwyer, Senior Member

BACKGROUND FACTS

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) which on 16 August 2002 affirmed two decisions of Centrelink Officers made on 1 December 2000 and 11 June 2002. The first was a decision to cancel Mr Bitar's newstart allowance from 28 November 2000. The second was a decision not to pay Mr Bitar arrears of newstart allowance for the period 29 November 2000 to 25 March 2001.

2. Mr Bitar appeared at the hearing. He and his wife both gave evidence. Mr Todd, an advocate with Centrelink, appeared for the Secretary, Department of Family and Community Services ("DFACS"). The Tribunal had before it the documents (the T documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits lodged during the hearing. They were a statement made by Mr Bitar seeking compensation under the Compensation for Detriment caused by Defective Administration scheme ("CDDA") (A1) and a printout about the CDDA scheme, which was produced by Mr Todd at the hearing and marked as an exhibit after the conclusion of the hearing (R1).

3. There is no dispute about the background history and the facts which led to this matter.. They were set out by the SSAT in its reasons for decision at paragraphs 1 to 3 and 5 & 7 as follows:

1. Mr Bitar was in receipt of newstart allowance on 1 December 2000 when his daughter advised Centrelink that he had left Australia to visit his sick brother in Lebanon. His newstart allowance was cancelled from 29 November 2000 and Centre link sent a letter on 1 December 2000 telling him that his newstart allowance had been cancelled. Mr Bitar was not aware that newstart allowance could be paid for up to 26 weeks while a person was overseas because of an acute family crisis. When he returned to Australia he contacted Centrelink to reclaim newstart allowance on 26 March 2001.

2. A Centrelink officer on 1 December 2000 made a decision to cancel newstart allowance and a further decision was made by a Centrelink officer on 11 June 2002 that Mr Sitar could not be paid arrears of newstart allowance for the period 29 November 2000 to 25 March 2001.

3. Following review, an authorised review officer affirmed the decision on 15 July 2002. The authorised review officer stated that there was no evidence that Mr Bitar contacted Centrelink any time between 29 November 2000 and 26 March 2001. The date of effect of a favourable decision is governed by section 109 of the Social Security (Administration) Act 1999 ("the Admin Act") and it states that if a person requests a review of a decision more than 13 weeks after being given notice of that decision, any favourable decision takes effect on the day the person asked for the decision to be reviewed. As Mr Bitar did not ask for the decision to cancel his newstart allowance to be reviewed within 13 weeks of being notified of the decision on 1 December 2000, arrears cannot be paid.

INFORMATION PROVIDED AT THE HEARING

5. Mr Bitar told the Tribunal the following:

* Mr and Mrs Bitar were separated at the time.

* Mr Bitar's daughter rang to inform Centrelink that he was overseas. The daughter was told that Mr Bitar might be entitled to something and that Centrelink would forward something out. Centrelink sent nothing out.

* He did not receive his mail in Lebanon as it was not forwarded on. Mail was delivered to his home address and no one opened it in his absence.

* The daughter was living with her mother and when Mr Bitar left Australia the mother returned to the former family home.

* His daughter did not mention anything to him about following up any of the information Centrelink provided.

* He believed he was not entitled because he was outside Australia and was told this when he went in to reclaim.

* His son was looking on the Internet for jobs and found that his father could have been paid while he was away due to the illness and subsequent death of his brother.

* He went to Centrelink in May 2002 after he discovered this information on the. computer and requested back-payment. He was told Centrelink would back-pay and they took copies of his paper-work but then they refused the payment.

* Mr Bitar was outside Australia for more than 13 weeks.

* The papers confirm that when he contacted Centrelink there was a problem with the computer. Mr Bitar referred to the Document (DOC) computer screen receipted 19 June 2002.

* Mr Bitar advised that he has missed out on receiving approximately $2,625 in payments over the period he was absent from Australia.

DOCUMENTS AND DISCUSSION OF THE EVIDENCE

6. There is no dispute between Mr Bitar and Centrelink that he left Australia on 28 November 2000 and returned on 24 March 2001. He left to attend to his seriously ill brother who subsequently passed away. Mr Bitar's daughter advised Centrelink on 1 December 2000 of his departure and the reason for it. Centrelink have computer records confirming details of the advice. The Historical Document Display (HDOC) computer screen shows the receipt of information that Mr Bitar departed for Lebanon to visit a sick brother. It also states "Portability script not completed as unsure of reason as acute family crisis. Please contact Nancy to follow up". It appears that Centrelink did not follow up this issue.

7. On 1 December 2000 Centrelink cancelled Mr Bitar's newstart allowance and neither Mr Bitar nor his daughter contacted Centrelink until after Mr Bitar returned to Australia and reclaimed newstart allowance on 26 March 2001

4. Mr Bitar agreed with that summary and with the findings of fact made by the SSAT at paragraph 8 of its reasons for decision as follows:

a) Mr Bitar was on newstart allowance when he left Australia on 28 November 2000 to attend to his seriously ill brother.

b) Mr Bitar's daughter advised Centrelink on 1 December 2000 of his departure and the reason for it.

c) On 1 December 2000 Centrelink sent a letter to Mr Bitar at his last advised address to advise him that his newstart allowance had been cancelled.

d) Mr Bitar returned to Australia on 24 March 2001 and reclaimed newstart allowance on 26 March 2001 .

e) Mr Bitar sought review of the decision, made on 1 December 2000 to cancel his newstart allowance, on 21 May 2002.

5. Mr Bitar, at the hearing, said that when he was telephoned by his family in Lebanon he was told that his older brother, who had had Parkinson's disease for years, was in hospital in a coma. His family told him to get a ticket and come over straight away. The family sent him the money for his fare. He said he left as quickly as he could and asked his 16 year old daughter Nancy to inform Centrelink of his absence. He said that his brother remained in a coma for three and a half months. The doctors in Lebanon told the family that there was no hope and advised that the life support machine be turned off. Mr Bitar and his remaining four brothers decided to accept that advice. After his brother died, he stayed for the funeral and then returned to Australia. He was away from 28 November 2000 to 23 March 2001.

6. Mr Bitar said that he did not discuss his absence with anybody at Centrelink before 26 March 2001. There is an error in the letter he signed (T10 p24) which suggests otherwise. The first time he discussed the issue with a Centrelink Officer was on 26 March 2001 when he went into Centrelink to reclaim his newstart allowance (T5 p11). That record says:

Just returned from o/s [overseas]

. . .

Customer attended interview.

7. At T9, pp20-21, the same officer has recorded on 19 June 2002:

Re appeal - doc dated the 1/12/2000 - call back appointment

1. I remember talking with daughter about issue, and should have advised her to have customer provide details on return.

2. I interviewed Mr Bitar on the 26/3/2001 and it would appear that the fact that customer was overseas may not have been discussed or it was not looked into as it was more than 3 months ago.

3. Mrs Bitar verbally advised me that she had contact quite a few times about the issue, however there is no record.

4. Perhaps customer partner - asked as a general enquiry and no follow up was done. And at reception no note was taken etc.

5. Call back dated the 1/12/2000 mention not being able to run the scriptor for the absence - I think this where the error may have occurred. Work loads in the Sale office at that time were in overload mode. It was often at that time that no sooner did you do a phone call that you had a customer to see.

6. In summary I feel that this customer has been disadvantaged.

8. It seems that, by 19 June 2002, the officer had forgotten that on 26 March 2001 she did discuss with Mr Bitar the fact that he had just returned from overseas.

9. Mr Bitar said he remembered the interview. He said the officer asked what he had been doing overseas and when he said his brother had died, the officer was very nice and said, "I am sorry. I offer you my sympathy". Document T5, p11, does confirm Mr Bitar's recollection, at least as to the issue that there was discussion of the fact that he had just returned from overseas.

10. I found Mr Bitar to be a very credible witness. I accept his evidence that on 26 March 2001 he did tell the Centrelink officer that he had just returned from overseas, and that his brother had died while he was in Lebanon.

11. Other relevant evidence was the evidence of both Mr and Mrs Bitar that on 2 or 3 occasions before 12 June 2002 each of them had asked if he could be paid arrears of newstart allowance for the period he had been away. They both said they had been told that was not possible, as Mr Bitar did not satisfy the activity test while he was away.

RELEVANT LEGISLATIVE PROVISIONS

12. Section 593(1) of the Social Security Act 1991 ("the Act"), so far as relevant, provides as follows:

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:

(i) throughout the period the person is unemployed; or

. . .

(b) in the case of a person to whom subparagraph (a)(i) applies--throughout the period, or for each period within the period, the person:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test; and

. . .

(g) throughout the period the person:

(i) subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and

(ii) is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and

(i) the person was not in receipt of a youth allowance during the period.

Section 596, 596A, 597 and 598 have no relevance to this matter.

13. The decision-makers within Centrelink did not point to the legislative provision justifying their decisions to cancel Mr Bitar's newstart allowance, and to affirm that decision. The letter of 1 December 2000 (T4 p10), simply said the allowance was cancelled "because you are not in Australia". The Authorised Review Officer ("ARO") who, on 15 July 2002, affirmed the decision under review not to pay arrears of newstart allowance to Mr Bitar, wrote at T14 p34:

Payment of Newstart Allowance is subject to conditions set out in the Social Security Law. The conditions a person must satisfy in order to qualify for Newstart Allowance are contained in section 593 of the Social Security Act. One of these conditions is that the person must be an Australian resident. This condition can be disregarded for a negotiated period of up to 26 weeks if the person is out of Australia because of an acute family crisis, such as the serious illness of an immediate family member.

14. There were two sections of the Act which could have preserved Mr Bitar's entitlements while he was overseas to attend to an acute family crises. The first is s 603A which modifies s 601. Those sections provides as follows:

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 in Australia, 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.

603A(1) Subject to subsections (2) and (3), a person is not required to satisfy the activity test for a period if:

(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and

(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period.

603A(2) The period referred to in subsection (1) is not to exceed 13 weeks.

603A(3) If:

(a) the Secretary makes a number of determinations under any one or more of the following provisions:

(i) subsection 525AA(3) of this Act as previously in force;

(ii) subsection 542H(1) of this Act;

(iia) subsection 731E(1) of this Act;

(iii) subsection (1) of this section; and

(b) the periods to which the determinations relate form a continuous period;

the continuous period is not to exceed 13 weeks, unless the Secretary determines otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding determination was based.

15. There could be little doubt that it would have been unreasonable to expect Mr Bitar to comply with the activity test when he had received a telephone call asking him to return to Lebanon to visit his dying brother. However a decision to that effect under s 603A(1) could not have covered an absence lasting more than 13 weeks.

16. Mr Todd also drew to the attention of the Tribunal ss 1212A and 1217 of the Act which, so far as relevant, provide as follows:

1212A Meaning of acute family crisis

For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:

(a) for the purpose of visiting a family member who is critically ill; or

(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or

(c) for a purpose relating to the death of a family member; or

(d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:

(i) is facing a family member; and

(ii) is beyond the control of the family member.

1217 Meaning of maximum portability period, allowable absence and portability period

Meaning of maximum portability period

(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table).

Meaning of allowable absence

(2) The person's absence is an allowable absence in relation to the payment at a particular time if, at that time, it is an absence specified in column 5 of the table that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table).. . .

Meaning of portability period if maximum portability period limited

(4) If the person's maximum portability period for the payment is a period of weeks, the person's portability period for the payment, in relation to the period of absence, is the period:

(a) beginning at the commencement of the period of absence; and

(b) ending at the earlier of the following times:

(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii) the end of the period of weeks that is person's maximum portability period for the payment.

Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

Portability of social security payments

Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
15	Newstart allowance	All persons	A temporary absence for any of the following purposes: (a) to seek eligible medical treatment; (b) to attend to an acute family crisis; (c) for a humanitarian purpose.	26 weeks

17. I find that Mr Bitar's absence from Australia was an "allowable absence" under s 1217(2) of the Act, as it was a temporary absence to attend an acute family crisis. Thus ss 1212A and 1217 of the Act allowed Mr Bitar to be paid newstart allowance for the whole period he was out of Australia from 28 November 2000 to 23 March 2001. The T documents at T8 p17, state that Mr Bitar provided "tickets, passport and statement". Mr Todd did not dispute that in the circumstances Mr Bitar's absence was an "allowable absence" covered by s 1217 of the Act, and that he would have been entitled to newstart allowance throughout his absence if Centrelink had obtained the relevant information before cancelling his newstart allowance.

18. I find that the decision of 1 December 2000 to cancel Mr Bitar's newstart allowance was not the correct decision. The decision which should have been made, after obtaining further information, was that Mr Bitar was entitled to newstart allowance for the period 28 November 2000 to 23 March 2001. The next question is whether I have power to set aside the decision under review and decide that Mr Bitar should be paid arrears of newstart allowance from 28 November 2000 to 23 March 2001

19. On this issue Mr Todd relied on s 109(1) and (2) of the Social Security (Administration) Act 1999 ("the Administration Act") (T2 p8) which provide as follows:

109 Date of effect of favourable determination resulting from review

(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.

20. Mr Todd submitted that as Mr Bitar did not seek review of the cancellation decision within 13 weeks of 2 December 2000, i.e. by 6 March 2001, any favourable decision of the Tribunal could not take effect until the day Mr Bitar sought review of the decision of 1 December 2000. It seems from the T documents (T6 p12) that Mr Bitar did not seek review of the decision until 21 May 2002 when he found, from the Internet, that he was entitled to payments while overseas to attend to an acute family crises. Mr Todd therefore submitted that Mr Bitar was not entitled to payment for any period before 21 May 2002.

21. The T documents show, that appropriate procedures were not followed as a consequence of the information given by Ms Bitar, about her father's absence. They also show that the Centrelink officers involved, themselves realised that Mr Bitar, in fairness, should be paid arrears of newstart allowance to cover the period when he was overseas. Were it not for s 109 of the Administration Act he would have been granted those payments. The relevant entries, all but one of which are computer entries, read as follows:

T3p9 FRI 1 DEC 2000	Cust's daughter, Nancy Bitar, contacted to adv a/n has departed to Lebanon to visit sick brother. Portability script not completed as unsure if reason is acute family crisis. Please contact Nancy to follow up. Thanks
T4p10 Letter advising	Your Newstart Allowance has been cancelled from 28 November 2000 because you are not in Australia
T5p11 MON 26 MAR 2001	NSA/ENQ Interview, @ SAL Just returned from O/s Appointment Finalised, Customer attended interview
T6p12 21 MAY 2002	NSA/med Interview, @ SAL TUE 11 JUNE 2002 09:00 AM to discuss the fact that a/n went o/s in nov 00 and returned in march 01 as his brother was in a coma - a/n seeking payment for this period as he has found on the Internet that he may have been entitled to pmts if he went o/s due to family crisis ANNOTATE BY MV6 ON 23 MAY 2002 Will need to supply evidence ANNOTATE BY MV6 ON 11 JUN 2002 Appointment Finalised, Customer attended interview
T7pp13-14 11 JUNE 2002	1. Customer was called away in November 2000 to Lebanon, because of brothers failing health. 2. Brother was in coma when he arrived. Khaled stayed in Lebanon Family finally decided to turn off brother's life support. and Khaled stayed there for the funeral 3. Customer's daughter had rang Centrelink - and I remember the call however I had not recorded the details. 4. Brother had parkinson disease. 5. Record also shows that customer has been suffering from depression since then. 6. It is recommended that customer be granted the arrears from November 2000 until the 23/3/2001 when customer returned. As customer was not advised of full-requirements of absence at time of departure.
T8pp17-18 11 JUNE 2002	Customer wanted a review of the decision because: Was unaware that he was entitled to payment while overseas In support of this the customer provided the following evidence: Tickets, passport and statement After reconsideration of the decision I (MV6) have decided to Affirm the decision. The new decision is: A favourable decision is agreed to but no arrears are payable as appeal lodged outside the 3 Months - no evidence of contact prior to this can be obtained
T9pp20-21 19 JUNE 2002	1. I remember talking with daughter about issue, and should have advised her to have customer provide details on return. 2. I interviewed Mr Bitar on the 26/3/2001 and it would appear that the fact that customer was overseas may not have been discussed or it was not looked into as it was more than 3 months ago. 3. Mrs Bitar verbally advised me that she had contact quite a few times about the issue, however there is no record. 4. Perhaps customer partner - asked as a general enquiry and no follow up was done. And at reception no note was taken etc. 5. Call back dated the 1/12/2000 mention not being able to run the scriptor for the absence - I think this where the error may have occurred. Work loads in the Sale office at that time were in overload mode. It was often at that time that no sooner did you do a phone call that you had a customer to see. 6. In summary I feel that this customer has been disadvantaged. [emphasis added in all entries]

22. Mr Bitar in his application for compensation (A1) wrote:

I was unaware that I had received the wrong information up until this time and did not request a review as I was constantly informed that I was ineligible to claim benefits because I was out of the country. This obviously was not the case and I had been given incorrect information.

In his submission to the SSAT, addressing the fact that he had not sought a reconsideration within 13 weeks of 2 December 2000, Mr Bitar wrote (T15 p36):

In my situation it was impossible for me to request a review of the decision to terminate my Newstart Allowance on the 1^st December 2000 because I was in Lebanon until March 22nd when my oldest brother finally passed away.

Upon my arrival I visited the Sale Centrelink office on the 26^th March to reclaim my Newstart Allowance. At this time I was asked several questions and I explained in detail my circumstances to Centrelink. During this appointment my details were recorded by the Centrelink representative, no reference was made by this representative to the fact that Newstart Allowance could continue to be paid for up to 26 weeks while a person is overseas because of an acute family crisis. I am most disappointed that at the time of re-application that I was not made aware of this special consideration by the Centrelink representative. My trip to Lebanon was entirely to visit my dying brother, an acute family crisis by any definition.

Only recently have I finally begin my recovery from the financial hardship that the termination of my Newstart Allowance caused. In recent times I have referred to the Internet to research job prospects and it was at this time that I came aware that Newstart Allowance could continue to be paid for up to 26 weeks while a person is overseas because of an acute family crisis.

23. It does seem from the entries quoted in para 21 above that the Centrelink administrative procedures were at the time to have a "portability script completed" (T3 p9) on advice that a newstart recipient had gone overseas to visit a sick brother. Somehow this did not happen. Maybe the reason was as set out in paragraph 5 of the screen dated 19 June 2002 namely:

5. Call back dated the 1/12/2000 mention not being able to run the scriptor for the absence - I think this where the error may have occurred. Work loads in the Sale office at that time were in overload mode. It was often at that time that no sooner did you do a phone call that you had a customer to see.

24. It is possible that the first Centrelink failure to institute appropriate procedures, namely not seeking further advice as to the nature of the absence to see if s 603A or s 1217 was applicable, was due to excessive workloads. However that does not explain why the cancellation decision was made on 1 December 2000, without waiting for the material on which to consider the portability issue. That is the second failure to institute appropriate administrative procedures. The third is that the cancellation decision did not refer at all to the advice which had been given that Mr Bitar had gone to Lebanon to visit his sick brother. If that letter had referred to s 603A or to ss 1212A and 1217, Mr Bitar would have had a reason to seek review. The letter he received gave advice that was incorrect, or at least ambiguous, in advising that the newstart allowance had been cancelled because Mr Bitar was not in Australia. As Centrelink had been advised that the reason for absence from Australia was to visit a sick brother, Mr Bitar should have been invited to provide material to show that the visit was "a temporary absence" "to attend to an acute family crises" as defined in s 1212A and that if he did so the absence would be an allowable absence, and payments would be portable for up to 26 weeks. The letter as written gave the impression that absence from Australia meant that newstart allowance ceased to be payable. It did not refer to the relevant exceptions to that rule. Had it done so, Mr Bitar would have known that he should seek a reconsideration.

25. There is much merit in Mr Bitar's reasons for seeking AAT review. He wrote at Tdocs p2:

I don't believe that Centrelink has fairly provided me with the opportunity to appeal my decision within 13 weeks under Sec 109 as they did not follow up with my daughter as per their file note of best practice. It is hard for a person in a time of an acute family crisis in another country to act within the 13 week opportunity when they were never aware or told about the possibility of receiving Centrelink payment whilst been overseas.

I support that comment and would add that it is not appropriate to expect Centrelink customers to check the Internet to find out whether they have grounds to seek a review of a Centrelink decision.

26. I have already found that Mr Bitar was entitled to receive payments of newstart allowance throughout his absence from Australia from 28 November 2000 to 23 March 2001. I will set aside the cancellation decision and substitute a new decision to that effect. Unfortunately I cannot decide that those payments now be made to Mr Bitar, because of s 109 of the Administration Act. I regret that s 109 of the Administration Act does not allow the Tribunal to provide a just result in this matter.

27. There is a question what form of decision I should make in regard to the decision not to pay arrears. Section 109(2) of the Administration Act does envisage a "favourable determination" being "made as a result of the application for review". However it provides that "the favourable determination takes effect on the day on which the application for review was made". I have already said I will make a favourable determination in regard to the cancellation. Should I also do so in regard to the decision not to pay arrears, although I know s 109(2) of the Administration Act will prevent it being effective?

28. I have decided that I should make a favourable decision by varying the decision under review to provide:

Mr Bitar was entitled to payment of newstart allowance from 28 November 2000 to 23 March 2001. However s 109(2) of the Administration Act prevents effect being given to that decision from a date earlier than 21 May 2002.

29. Neither the Centrelink decision-makers, nor this Tribunal can ignore s 109 of the Administration Act. It is my view that if appropriate procedures had been followed Mr Bitar, or his daughter Nancy, would have completed a "portability script" and he would have been paid newstart allowance for the whole of his 15 or 16 week absence from Australia. However, because of s 109 of the Administration Act, I cannot vary the decision under review made on 11 June 2002 (T8) so as to give Mr Bitar the arrears he seeks.

30. There are still two further avenues Mr Bitar can pursue. They are the CDDA scheme and the Commonwealth Ombudsman. The CDDA is the first avenue available to Mr Bitar. In considering the application of that scheme it is appropriate to note that the Centrelink documents do show that there was an unreasonable failure to institute appropriate administrative procedures following Nancy Bitar's advice that her father had left for Lebanon to visit his sick brother. The documents also show that the cancellation decision was made on the same day as the advice of departure for overseas was received, and without seeking information to provide a proper basis for that decision. In addition that letter gave incorrect or ambiguous advice as to the reason for the decision to cancel.

31. Further, the T documents do make reference to Mr Bitar having financial difficulties due to the cancellation of his newstart allowance and to him suffering depression related to his brother's death (T7 p14 at No. 5.) and also financial hardship (T15 p36). I did not seek evidence on these matters but it would be appropriate for Mr Bitar to provide further details, including a medical certificate, with his application for compensation under the CDDA scheme. I will recommend that Mr Bitar's application for compensation under the CDDA scheme be favourably considered. If that should not be successful Mr Bitar could consider referring the matter to the Commonwealth Ombudsman, but I hope that will not be necessary.

32. I also recommend that consideration be given to amendment of the CDDA scheme to allow payment of claims in clear cases such as this, where Centrelink officers acknowledge there have been failures to institute appropriate administrative procedures, without the need for the cost and emotional strain of an AAT hearing. The amount the hearing cost the Commonwealth, in terms of Mr Todd's time and the time spent in dealing with the matter at the AAT, is certainly more than the arrears of newstart allowance Mr Bitar is seeking. In addition Mr and Mrs Bitar had to travel by train from Sale to Melbourne and back again for this hearing. It would be preferable if the CDDA scheme had the flexibility to allow payment of compensation without an AAT hearing, where the officers concerned have acknowledged that appropriate procedures were not followed, and where as a consequence a customer of Centrelink has suffered detriment.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Grace Carney

Associate

Date/s of Hearing 20 January 2003

Date of Decision 22 January 2003

Solicitor for the Applicant Self Represented

Departmental Advocate Mr M Todd