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Social Security Reporter |
Newstart Allowance: date of deemed receipt of notice
(2013/686)
Decided: 26th September 2013 by R. Perton
El-Moustafa received newstart allowance (NSA) from 14 January 2011 at the single rate. Centrelink cancelled her NSA later that year with the effective date being 9 August 2011. Her NSA was later reinstated from 12 December 2011. During the period August to December 2011, there were two major issues relating to her payments, one concerned the failure to lodge a reporting statement, which NSA recipients are required to do periodically on a date specified by Centrelink and the other was a Centrelink decision on 9 August 2011 that El-Moustafa was a member of a couple. She told the Tribunal that she had not lodged the reporting statement because she had not received the relevant correspondence from Centrelink.
Whether El-Moustafa was entitled to arrears of NSA between 9 August 2011 and 11 December 2011?
Section 160 of the Evidence Act 1995 states:
Postal articles
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed
to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
......
(2) In this section:
‘working day’ means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or a bank holiday in the place to which the postal article was addressed.
Section 29 of the Acts Interpretation Act 1901 states:
Meaning of service by post
(1) Where an Act authorises or requires any documents to be served by post, whether the expression serve: or the expression ‘give’ or ‘send’ of any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
The social security legislation sets out methods for service but does not prescribe specific time limits for the deemed receipt date of a decision letter sent in the ordinary course of the post.
Section 237 of the Social Security (Administration) Act 1999 sets out the way decisions made in relation to social security recipients can be served:
Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered t o a per son personally; or
(b) left at the address of the place of resident or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary; notice of the decision is taken, for the purposes of social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person
by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
The issue as to whether El-Moustafa was entitled to arrears of NSA between 9 August 2011 and 11 December 2011 turned on whether she had sought review within 13 weeks of notification of the automatic cancellation of NSA.
The automatic decision to cancel El-Moustafa’s NSA due to her failure to submit a reporting statement was made on 6 September 2011, a Tuesday.
Centrelink’s letter was posted to her on the same day.
The Tribunal found that it was appropriate to apply the deemed date of receipt according to the provisions set out in section 160 of the Evidence Act 1901 noting that four working days are allowed for service of mail under that provision.
This resulted in a deemed date of receipt of the following Monday, namely 12 September 2011. The Tribunal calculated thirteen weeks after 12 September 2011 to be 12 December 2011.
The Tribunal referred to a Centrelink file note on 6 December 2011 which stated:
.... as more than 13 weeks since cancellation cust [omer] will be required to reclaim as she did not lodge required form,as no payment made after 9/8/11 there are no arrears payable at this time, appeal system updated to show decision has been implemented.
The Tribunal found that the premise that it had been 13 weeks since notification on 6 December 2011 was not correct because whilst Centrelink had made the decision on 6 September 2011 to cancel El-Moustafa’s NSA she was not told about the decision on that date. As a result, she was deemed to have received notification of the cancellation by 12 September 2011.
The Tribunal noted that had El-Moustafa been properly advised that she was still within the 13 week period up to and including 12 December 2011 and therefore the opportunity to explain her reasons for failing to lodge the reporting statement she may well have qualified for payment in the period between 9 August 2011 to 11 December 2011. The Tribunal also noted that an SSAT decision concerning her marital status was made on 24 November 2011 and had referred back to 9 August 2011 as the relevant date for payment.
The Tribunal found that had El-Moustafa realised that she had to make a separate review application on or before 12 December 2011 in relation to the cancellation for failing to lodge the reporting statement she would have done so, referring to Centrelink records showing that El-Moustafa had applied for review after being advised that she was not receiving NSA payments back to 9 August 2011. However the date for review was one week outside the 13 week period.
The Tribunal went on to consider whether El-Moustafa’s fresh claim or other contacts with Centrelink within 13 weeks of the cancellation decision could be deemed to also amount to a request for review but ultimately decided that none of the contacts could be regarded as such.
The Tribunal found however that the provision of incorrect information about the actual expiry of the 13 week period and the two-week delay between the SSAT decision concerning El-Moustafa’s marital status had directly impacted on her situation and recommended that the Department consider an ex-gratia payment in this case noting that it did not usually recommend such a response in its written reasons for decision.
The decision under review was affirmed.
[G.B.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2013/30.html