Yeasmin and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 659 (1 September 2009)

Last Updated: 3 September 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 659

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0211

GENERAL DIVISION		)
	Re		LAILA YEASMIN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Justice R J Buchanan (Presidential Member)

Date 1 September 2009

Place Sydney

Decision

The Tribunal affirms the decision of the Social Security Appeals Tribunal, dated 22 December 2008, which affirmed Centrelink decisions of 30 November 2006 cancelling a parenting payment partnered to Mrs Yeasmin and 1 May 2008 not to back date a new parenting payment partnered.

...................[sgd]..........................
Justice R J Buchanan

(Presidential Member)

Social Security (Administration) Act 1999 (Cth) ss 63, 64, 67, 68, 81, 109

REASONS FOR DECISION

1 September 2009

Justice R J Buchanan (Presidential Member)

1. Mrs Yeasmin has applied for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) handed down on 22 December 2008. In its decision the SSAT affirmed two decisions of officers of Centrelink. The first decision was to cancel a “parenting payment partnered” which Mrs Yeasmin was receiving in 2006. The payment was suspended on 6 September 2006 and then cancelled on 30 November 2006. The other decision, made some time later, was to decline to make a newly approved parenting payment partnered, which was granted from 14 April 2008, retrospective to the date upon which earlier payments ceased.
2. In 2006 Mrs Yeasmin was in receipt of a parenting payment partnered because her husband, Mr Rouf, a casual taxi driver, was regarded as a low income earner. On 28 August 2006 she and her husband attended an interview with Centrelink as part of an update and review of her entitlement. They provided some information so that a Centrelink officer might complete a questionnaire. They each signed the completed questionnaire as correct. However, the information which they provided was not regarded as sufficient to enable Centrelink to assess whether Mrs Yeasmin remained entitled to a parenting payment partnered. She and Mr Rouf were asked to provide a profit and loss statement for him for the financial year ending 30 June 2006 and bring it back within 14 days. At the interview Mr Rouf is recorded as saying that he would not complete the form and was not obliged to advise Centrelink of income earned by him. If such a statement was made it involved a misconception on his part about Mrs Yeasmin’s entitlement to payment. Mrs Yeasmin and her husband were warned at the interview that if the information was not provided the payments would be suspended.
3. A confirmatory letter was sent to Mrs Yeasmin. It asked for provision of “transactions for self and partner”. On its face this request seems a little obscure but there is other material recording that Mrs Yeasmin was sent a “Q002” form at the same time requesting bank statements for the previous three months and Mr Rouf’s “profit and loss statement” for the financial year 2005/2006. There does not seem any real doubt that the requirement to provide further financial information was communicated, understood and rebuffed.
4. On 13 September 2006 a further letter was sent to Mrs Yeasmin advising her that payments had been suspended because she had not replied to the letter of 28 August 2006. There is a note on the Centrelink file recording contact by Mr Rouf enquiring why payments had been suspended. The note records that he was advised that suspension of payments had occurred because the documents requested at the interview had not been provided. The recorded response is that the documents would not be provided.
5. On 30 November 2006 Centrelink wrote to Mrs Yeasmin to advise her that the parenting payment partnered had been cancelled, advising her of her right to have the decision reconsidered and then reviewed and informing her that it was important that she ask for any review within 13 weeks. Nothing more appears to have been done by Mrs Yeasmin with respect to this matter until she made a new application for a parenting payment partnered on 14 April 2008.
6. On 14 April 2008 Mrs Yeasmin lodged a new claim for a parenting payment partnered. The claim was granted from that day. Mr Rouf was granted a Newstart allowance at the same time and had evidently provided the financial information required to establish that entitlement. Mrs Yeasmin asked Centrelink to reinstate the payment to her with effect from the date of the earlier suspension and cancellation. One aspect of her request appears to have been to seek reconsideration of the earlier decision to cancel the payment in 2006. For reasons to be discussed, reconsideration of that decision could have had no effect upon her right to retrospective payments. Nevertheless, reconsideration was given to the earlier decision. The decision was affirmed. An Authorised Review Officer then reviewed the decision not to grant a retrospective payment and decided that payment was prohibited by s 109 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Mrs Yeasmin then applied to the SSAT for review of the decisions to cancel the earlier payment and not make the new payment retrospective.
7. Section 109(1) and (2) of the Administration Act provide for what happens in the event that an application for review is made, either within 13 weeks after notice of a decision, or after 13 weeks of notice of a decision, as follows:

“109(1) If
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.

109(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.”
(Original emphasis.)

8. In the present case Mrs Yeasmin did not make an application for review of the decision cancelling her parenting payment partnered in 2006 within 13 weeks, nor for a considerable time thereafter. Even if a determination in her favour was now made to the effect that the decision advised to her on 30 November 2006 should not have been made, that determination could only take effect from the date when she sought the review, which appears to have been 29 April 2008. As a result of her further application for a parenting payment partnered, payments have been to her since 14 April 2008. A favourable determination about the question of whether the decision of 30 November 2006 was correct could have no practical or legal consequence.
9. In any event, it does not appear that the decision of 30 November 2006 was wrong. Notice was provided to Mrs Yeasmin on 28 August 2006 that information was required. The notice was given in two ways. One way was at the interview. The other was by the letter dated 28 August 2006 and the form “Q002” sent with the letter. The later letter to Mrs Yeasmin advising her that payment had been suspended also informed her that it was because necessary information had not been supplied.
10. All those forms of notice appear to have been effective in the present case. Part 3 of the Administration Act concerns the provision of benefits. Division 6 in Part 3 is entitled “Requirement to provide information, undergo medical examination etc”. Subdivision A of Division 6 is entitled “General”. Section 63 authorises notification to a person who is receiving a social security payment that they are required to give information. The notification may be made by pre-paid post or in any other way considered appropriate (s 63(5)). If the requirement in a notice is reasonable and the person receiving or claiming a social security payment does not comply with it then s 64 provides that the payment is not payable.
11. Subdivision B of Division 6 is entitled “Requirement to give information about change of circumstances etc”. The requirements for giving notice are stricter than in Subdivision A. Section 67 authorises the giving of a notice in writing to a person that they are required to give a statement “about a matter that might affect the payment to the person of the social security payment”. This requirement, like other provisions made in s 67, appears to authorise the imposition of an obligation to make a future disclosure. Although that was not the situation in the present case it would not have mattered if it was. Section 68 of the Administration Act authorised a notice to Mrs Yeasmin requiring her to give a statement or statements about a matter which might affect the payment to her of the parenting payment partnered then being received by her. Section 81 of the Administration Act authorised suspension or cancellation of her parenting payment partnered in the event that she did not comply with a notice given to her under s 68. Those conditions appear, if necessary, to have been met. Accordingly, even if the stricter requirement in Subdivision B for written notice was applicable it was satisfied in the present case.
12. There is no other reason to doubt the correctness of the decision to cancel the earlier payment. It was the inevitable result of the failure to provide information, which appears in turn to have been occasioned by Mr Rouf’s decision that it would not be provided. The decision of the SSAT to affirm the decision of 30 November 2006 to cancel the parenting payment partnered will therefore be affirmed.
13. The only issue which arises in connection with the grant of a new payment to Mrs Yeasmin is the complaint that payments were not backdated. For reasons already explained there was no discretion to do so. The decision of the SSAT with respect to that issue will also be affirmed.
14. The Centrelink decisions are affirmed.

I certify that the fourteen (14) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Buchanan, Presidential Member.

Signed:......................[sgd].........................................

Associate

Dates of Hearing 4 August 2009

Date of Decision 1 September 2009

Representative for the Applicant Mr M A Rouf

Solicitor for the Respondent Mr K Bullock