Mitskinis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 18 (13 January 2010)

Last Updated: 13 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2856

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TOM MITSKINIS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Miss E.A Shanahan, Member

Date 13 January 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review and recommends that the respondent submit an application for an act of grace payment to be made to Mr Mitskinis.

(sgd) E A Shanahan
Member

SOCIAL SECURITY – rate of mobility allowance – failure to complete the necessary activity agreement – applicant severely disabled – primary decision varied by the Social Security Appeals Tribunal - decision of the SSAT affirmed – act of grace payment recommended.
Social Security Act 1991

Social Security (Administration ) Act 1999

Smith v Oakenfull [2004] FCA 4; (2004) 134 FCR 413

Re Westeon and Secretary, Department of Social Security [1991] AATA 58; (1991) 22 ALD 716

Scott v Secretary, Department of Social Security [1999] FCA 1774; (1999) 57 ALD 627

Re Evans and Secretary, Department of Family and Community Services [2002] AATA 914; (2002) 71 ALD 183

REASONS FOR DECISION

13 January 2010

Miss E.A Shanahan, Member

1. Mr Mitskinis has received income support in the form of the disability support pension since 8 August 1985 and a mobility allowance since 9 August 2001. In May 2003 he received a lump sum payment for arrears of mobility allowance back-dated to 1985, presumably under a compensation scheme. On the recommendation of his case manager, Mr Mitskinis made enquiries of Centrelink on 16 February 2009 regarding his eligibility for payment of mobility allowance at the higher rate. Centrelink advised both Mr Mitskinis and two case managers from the Brunswick Employment Agency (BEA), Rito and Anne Maree, that in order to be paid at the higher rate Mr Mitskinis must complete and sign an activity agreement to the effect that he would undertake to search for work of 15 hours or more duration per week.
2. On 26 February 2009, an agreement was completed between Mr Mitskinis and the BEA in which Mr Mitskinis agreed to search for work that required 15 hours or more per week. He qualified for mobility payments at the higher rate from 4 March 2009. As Mr Mitskinis had been searching for work for more than 15 hours per week since 1 July 2007, he asked Centrelink to reconsider the decision and sought arrears to 1 July 2007. On 17 April 2009 (T18) the original decision was affirmed. On 4 May 2009 (T22) the decision was also affirmed by an Authorised Review Officer. These decisions were based on the fact that prior to 4 March 2009 the appropriate activity agreement was not in place with Mr Mitskinis’ employment service provider. Mr Mitskinis’ application for review by the Social Security Appeals Tribunal (SSAT) was partly successful in that on 12 June 2009 the SSAT directed that the higher rate of mobility allowance be paid from 26 February 2009. Mr Mitskinis sought review of this decision by the Administrative Appeals Tribunal on 23 June 2009.
3. At the hearing before this Tribunal Mr Mitskinis was self-represented and Ms Peta Heffernan a solicitor with the Australian Government Solicitor appeared for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1979 (T-documents) and Mr  Mitskinis provided a letter from the Brunswick Employment Agency (the BEA) confirming his registration with the agency as a job seeker between 1 July 2007 and 26 February 2009. Mr Mitskinis gave evidence before the Tribunal and later at the request of the Tribunal provided a copy of his resume. The later two documents have been respectively assigned post hearing exhibit numbers of A1 and A2.
4. Mr Mitskinis read his written submission to the SSAT (T28) to the Tribunal. He explained that he has difficulties communicating with others because of his slurred speech and his very poor short term memory. He said people, including Centrelink staff, often became exasperated with him as he needed them to repeat their instructions or to write them down. People in general often made the mistake of considering him to be drunk because of his abnormal gait and speech difficulties.
5. Mr Mitskinis returned to work in 1984 having sustained extensive injuries in a motor vehicle accident (MVA) in 1978. His first position was with the Department of Social Security. From 1985 to 1991 he worked on a temporary basis for various State Government Departments and then from 1992 to 1999 he collected donations for Wheel Chair Sports, working 15 to 20 hours per week. Between 2002 and mid 2009 he held a position on an on call basis performing simple administrative tasks for the Bang Stationery Company. He worked up to four hours per day.
6. Since October 2009 Mr Mitskinis has been employed by Priceline Pharmacy for seven hours per fortnight delivering medication to clients. He has always reported his earnings to Centrelink and his DSP has been adjusted accordingly (T37).
7. Mr Mitskinis explained that he cold canvassed for work in shopping strips. Where possible he used public transport but if his legs were painful or there was no close access to public transport he used a taxi.
8. Mr Mitskinis was of the opinion that Centrelink staff did not always treat him professionally or fully appreciate his level of disability. He believes that he was owed a duty of care. Centrelink staff had not advised him of his entitlements. Mr Mitskinis said his case managers at BEA, where he has attended for 10 years, knew he was searching for jobs on a daily basis from 1 July 2007 but were unaware of the necessary documentation that needed to be lodged in order to qualify for a higher level of mobility allowance.
9. At the request of the Tribunal Mr Mitskinis detailed his injuries of 1978. He was working as a waiter at the Hilton Hotel at the time he was involved in the MVA. He suffered multiple limb fractures and a closed head injury. He was unconscious for three months. He said he was hospitalised at St Vincent’s Hospital for eight months and eight days and then underwent rehabilitation at Royal Talbot and Coonac. The Transport Accident Commission of Victoria provided income support for a period of six years. Mr Mitskinis lives with his mother.
10. Mr Mitskinis claimed that when he made enquiries in February 2009 he was told by a Centrelink officer named Karen that he could be paid arrears of mobility allowance at the higher rate in the sum of $1,320.00 for the period 1 July 2007 to 2 March 2009.

DOCUMENTARY EVIDENCE

11. Voluntary activity agreements between Mr Mitskinis and North West Employment Group Brunswick were completed on 21 November 2006 and 12 November 2007. These agreements required Mr Mitskinis to undertake 150 hours of career planning participation in the Disability Employment Network (DEN) and participate in the DEN program with respect to all agreed activities and attend all scheduled appointments. Another activity agreement was completed on 26 February 2009 in which Mr Mitskinis agreed to undertake 15 job search contacts per fortnight (T26) in order to obtain work of 15 hours or more per week.
12. Mr Mitskinis was required to submit forms to Centrelink so that his eligibility for the mobility allowance could be reviewed. Regular reviews were undertaken and when verified, Mr Mitskinis was advised of the continuation of his mobility allowance. The last of these forms was to be returned on 21 January 2009. Each letter advising Mr Mitskinis of the continuation of his mobility allowance also contained a lengthy list of What you have to tell us about. There is no mention of the 15 job search contacts per fortnight but the recipient was required to notify Centrelink If you stop job search activities as part of an Activity Agreement (T4). These communications are complex and difficult both to read and understand.
13. The SSAT in its decision of 1 June 2009 recorded that on 1 May 2003 Mr Mitskinis received arrears of mobility allowance in the form of compensation for the period 8 August 1985 to 9 August 2001 in the amount of $17,069.50 (T2, p6). The Tribunal presumes this compensation was effected under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme.
14. The BEA provided Mr Mitskinis with a letter stating that he was registered with the agency as a job seeker between 1 July 2007 and 26 February 2009 and that during that period he was looking for work of 15 hours or more per week (Exhibit A1). The BEA stated it had not been advised by Centrelink that it was a requirement that Mr Mitskinis look for work of 15 hours per fortnight.

LEGISLATION

15. The relevant legislation is contained in the Social Security Act 1991 (the Act). Section 1044((1A) of the Act provides that mobility allowance is payable at the higher rate if the person satisfies s 1035A of the Act. Mr Mitskinis meets the preliminary requirements of s 1035A1(a), (b), and (c) and since completing and signing the voluntary activity agreement of 26 February 2009 he has qualified for the mobility allowance at the higher rate under s 1035A3(a)(ii).
16. Section 109 of the Social Security (Administration) Act 1999 states:

(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.

17. Mr Mitskinis did not seek review of any decision relating to mobility allowance prior to 16 February 2009.

TRIBUNAL’S DELIBERATIONS

18. It was obvious to the Tribunal that Mr Mitskinis is disabled as evidenced by his unstable gait his slurred speech and his poor short term memory. He is to be commended for seeking and obtaining employment over the past 25 years despite these disabilities. In view of these disabilities, he requires a higher level of assistance than the norm from both Centrelink staff and employment agency case managers. Many of the difficulties he has encountered in dealing with these bodies could be reduced by the provision of instructions in writing in simple language.
19. The SSAT set aside the primary decision and back-dated payment of Mr Mitskinis’s mobility allowance to 26 February 2009. This Tribunal affirms the SSAT decision this being the only option available in accordance with the Act. Mr Mitskinis did not seek review of any decisions relating to his mobility allowance operative in 2006, 2007 and 2008. Neither he nor BEA were aware of the format of the voluntary activity agreement necessary to enable Mr Mitskinis to be paid at the higher level of mobility allowance required by s 1035A and s 1044 of the Act. The Tribunal accepts that Mr Mitskinis has searched for work assiduously and most probably made 15 contacts per fortnight in search of work of 15 hours or more per week.
20. Mr Mitskinis has experience in obtaining compensation for defective administration as evidenced by the $17,069. 50 compensation he received in 2003. He had been advised to pursue the same avenue with respect to his current claim for payment of arrears. Given that Mr Mitskinis proceeded to hearing before this Tribunal, it is assumed his CDDA application was unsuccessful. In Smith v Oakenfull [2004] FCA 4; (2004) 134 FCR 413, Dowsett J held that the CDDA Scheme was not made under a statute and thus not subject to review by Commonwealth administrative tribunals or to judicial review.
21. Mr Mitskinis has asserted that Centrelink staff owe him a duty of care. The Full Federal Court in Scott v Secretary, Department of Social Security [1999] FCA 1774; (1999) 57 ALD 627 upheld the decision of Heerey J at first instance that no provisions of the Act created a statutory duty sounding in damages for breach and that the Social Security Guide did not confer any legal rights. In Re Evans and Secretary, Department of Family and Community Services[2002] AATA 914; (2002) 71 ALD 183 the Tribunal held that Centrelink did not have a duty of care to advise an applicant of a possible entitlement to mobility allowance. Case law indicates that Centrelink staff do not have any enforceable duty of care to their customers.
22. The only remaining avenue of recompense that might be available to Mr Mitskinis is an act of grace or ex gratia payment in accordance with s 33 of the Financial Management and Accountability Act 1997 (the FMA Act). Section 33 allows the Finance Minister to make a payment to an individual where special circumstances exist. Special circumstances are not defined in the FMA Act. However, the principles to be applied are outlined in the Department of Finance and Deregulation Finance Circular Nº 2009/09. Attachment B of the Finance Circular broadly provides that special circumstances exist where the application of legislation produces unintended anomalies, unjust results in the particular circumstances and where the particular circumstances of the case lead to the conclusion that there is a moral obligation on the Commonwealth to make a payment.
23. The evidence before the Tribunal suggests that the principles set out in the Finance Circular apply to Mr Mitskinis’ claim given his efforts and success in obtaining employment despite his disabilities; his long-standing and permanent brain damage; and the apparent failure of Centrelink to inform the BEA of the relevant statutory requirements for mobility allowances and appropriate form of activity agreements. An act of grace payment should be considered by the relevant government department.

DECISION

24. The Tribunal affirms the decision under review and recommends that the respondent submit an application for an act of grace payment to be made to Mr Mitskinis.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan, Member

Signed: Dianne Eva

Clerk

Date of Hearing 9 December 2009

Date of Decision 13 January 2010

Advocate for the applicant Self-represented

Advocate for the respondent Ms P. Heffernan, Australian Government Solicitor