Editors --- "Youth allowance: review sought after 13 weeks; notice of decision" [2007] SocSecRpr 33; (2007) 9(3) Social Security Reporter, Article 7

• GOLDEN and SECRETARY TO THE DEST
• Background
• The law
• The letter
• Conclusion
• Formal decision

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Youth allowance: review sought after 13 weeks; notice of decision

GOLDEN and SECRETARY TO THE DEST

(2007/1585)

Decided: 25th July 2007 by P. McDermott

Background

On 23 September 2005Golden was studying and boarding at Downlands Sacred Heart College in Toowoomba. On 27 September 2005Centrelink made a decision that she would be paid youth allowance at the ‘away from home rate’ from that date. On 26 November 2005 Centrelink sent Golden a letter advising her that she would be paid youth allowance at the ‘living at home rate’ from 26 November 2005.

On 24 January 2006 Golden was advised that she would be paid youth allowance at the rate of $183.20 per fortnight and that the payment of youth allowance was based on her studying full-time at Downlands Sacred Heart College with the course ending on 18 November 2006. This rate of youth allowance was not the ‘away from home rate’. This decision had the consequence that Golden was not paid youth allowance at the ‘away from home rate’ for the 2006 academic year even though she was then boarding at Downlands Sacred Heart College.

There was no question that Golden was eligible for payment of youth allowance at the away from home rate when the payment was reduced.

However, Golden did not query her rate of payments until her mother contacted Centrelink in November2006. Centrelink decided that arrears of youth allowance could not be paid due to the application of s.109 of the Social Security (Administration) Act 1999 (the Act). The matter was appealed to the Social Security Appeals Tribunal which affirmed the decision.

The law

Section 109 of the Act limits the right of people receiving Social Security payments to recover arrears where a mistake has been made in relation to their entitlement. In essence it states that if a valid notice was served informing them of the decision and they do not seek a review of the decision within 13 weeks then recovery of arrears is limited to the date from which they sought review.

The letter

The letter in question advised threat of youth allowance and provided information confirming that payment was based on Golden studying full-time. Golden was asked to contact Centrelink if any of the information was incorrect.

The argument made on behalf of Golden was that the letter was a mere ‘...repetition of information which had been supplied by Golden’s mother together with the dollar figure’. As it was not a proper notice under ss.109(3) Golden was entitled to arrears from the date of the original decision.

Conclusion

In reaching its decision the AAT referred to the cases of Secretary, Department of Family and Community Services v Rogers[2000] FCA 1447; (2000) 104 FCR 272 and Austin v Secretary, Department of Family & Community Services [1999] FCA 938; (1999) 92 FCR 138.

The AAT concluded that the letter did not ‘...communicate sufficient information to enable an applicant to make a decision as to whether or not to seek a review’.

The AAT found that the letter was not even a notice of a ‘narrow decision’ as that term was used in Austin. The AAT considered that Austin was authority for the proposition that a ‘good notice’ of decision requires:

‘...communication to the recipient that a decision has been made to pay the recipient an allowance at a particular rate. Additionally, a clear statement that the decision has been made fixing the rate of payment at a particular figure as opposed to information from which an inference might be drawn would be required before the communication could constitute notice’.

(Reasons, para. 18)

The letter did not state that youth allowance was to be paid at the living at home rate and therefore it was not a notice of a decision – ‘narrow or otherwise’.

The Tribunal considered the case of Rogers where it was found that the applicant in that case had been notified that her pension would be ‘reduced’. The Tribunal found that Rogers ‘case could be distinguished as Golden was not informed that she would be paid youth allowance at a lower rate.

Formal decision

The AAT set aside the decision under review and substituted a decision that Golden be paid at the away from home rate for the period when she was studying full-time.

[R.P.]