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Post by rowdy on Jun 1, 2011 11:30:35 GMT 7
"I refuse to allow this to dominate my life, I have other things to do and use them to cleanse my mind between battles. I can see why people who can't use this mental exercise go mad and lose control, I've had a couple of glimpses into that void and don't want to go there." Banjo Yes, been there too. I have wanted to take a tin of petrol to the office of my corrupt disability employment provider and set it on fire. End matters between us once and for all. The look of fear on the faces of their staff, would have been a quicker and better satisfaction than 8 months of writing letters of complaints, especially when all of those have been ignored. I used to feel sorry for Centrelink staff when people arched up at them. These days I laugh and cheer when I read that one of them has been assaulted by a 'client'. Thanks for the cheque! Living on DSP, I need all the extra funds I can get. Strong words Spacey. Fortunately I haven't had the treatment (yet) that you have had, but I understand exactly where you are coming from. Especially after you have exhausted all reasonable channels, such as formal complaints, letter that go nowhere etc.
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Post by spaceyone on Jun 1, 2011 15:48:22 GMT 7
Their staff, after being found suspect of misconduct, should be disciplined immediately. Not protected, moved around, or slightly demoted.
These people have the power of God (almost) in their hands. They choose whether or not we can pay for our lodgings, and eat. They have access to all of our private details. Yet they are not only allowed to play games with us, they seem to be encouraged to do so.
Instead of applauding them for saving the country's money, they should be kicked, where the sun doesn't shine, if they even look like stepping out of line.
Take Banjo's case for instance. The only one more aware that he has had no income for a long time, is them. Yet they are going to stretch his case out even longer. That is a crime against a fellow human being, not an administrative decision.
Surely, you can apply to be re-instated during their appeal, if they decide to go ahead with one, since you have already been awarded your DSP back. Tell them they can take it out of your Newstart Allowance later on, if you end up owing it back to them.
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Post by Banjo on Jun 2, 2011 3:38:22 GMT 7
Black Tulip Vampire sent me some "duty of care" stuff about their responsibility to people that was quite interesting. Duty of care www.fahcsia.gov.au/guides_acts/ssg/ssguide-1/ssguide-1.3/ssguide-1.3.4/ssguide-1.3.4.10.htmlwww.fahcsia.gov.au/guides_acts/ssg/ssguide-1/ssguide-1.3/ssguide-1.3.4/ssguide-1.3.4.20.html1.3.4.10 Duty of Care
What does duty of care mean?
Australian Government employees have a duty of care to the public when performing their duties. This extends to any advice given and any actions performed.
Explanation: See the majority of the Judicial Committee in Mutual Life & Citizens' Assurance Co. Ltd. v Evatt (1970) 122 CLR 628, (1971) AC 793.
Breaches of duty of care
A breach of duty of care can result from negligent advice and/or a negligent action.
Payment under Regulation 9 of the FMAA can ONLY be made if the Department or Centrelink has breached its duty to exercise reasonable care.
Regulation 9 of the FMAA is NOT a way around the normal limitations in the Social Security Act 1991 on the payment of arrears.
Negligent decisions
There are not many negligent actions that result in a common law duty of care and therefore a possibility of settlement under Regulation 9 of the FMAA, because the majority of negligent actions under the Act are decisions that are subject to a right of review.
Example: A determination is made to grant Age but because of a breakdown in normal procedures, the decision is not put into effect for several months. As a result, a PCC is issued late and medical expenses are paid without concession.
Policy reference: SS Guide 1.3.5 Liability of Decision Makers
Contributory negligence
A case may arise if negligence occurred in the Department but either the person or a third party also contributed to the negligence. In such a case, a partial payment could be made to compensate for that part of the loss that resulted from the Department's negligence.
Loss because of taxation liability on arrears payments
Under the Taxation Laws Amendment Act 1988, measures were introduced to allow a rebate on arrears of income for previous financial years. The rebate applies retrospectively to payments made on or after 1 July 1986 and includes social security payments (section 23(1)-'social security benefit'). If a person seeks compensation for a loss in these circumstances, they should first be referred to the ATO for clarification of entitlement to this rebate. It may be that after application of the rebate, no economic loss exists.
If the taxation rebate does not apply, or does NOT relieve the person of the additional taxation liability in full, the claim should be considered under Regulation 9 of the FMAA. If it can be accepted that the taxation liability in question arose from departmental negligence, then the claim may be settled under that direction. If no negligence occurred, the matter may still be considered under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme.
Act reference: SSAct section 23(1)-'social security benefit'
Financial Management and Accountability Act 1997, refer to Regulation 9
Policy reference: SS Guide 1.3.2 Defective Administration
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Last reviewed: 27 January 1999
1.3.4.20 Duty of Care when giving Advice or Information
Giving advice or information
Duty of care with regard to advice involves the performance of duties to a reasonable standard of care. 'Reasonable' generally means a standard of care expected of a reasonably prudent public servant administering welfare legislation consistent with sound administrative practices.
Explanation: See Shaddock v Parramatta City Council.
Advice can be given either orally or in writing. The consequences of incorrect advice are the same whether the advice is given orally or in writing, so the same degree of care MUST be taken. Care MUST be taken to ensure that oral advice is expressed clearly enough for the person to understand, taking into account any obvious educational and language barriers.
Advice or action outside Department's area of expertise
Departmental officers are often asked to provide information about other government departments or agencies.
Example: Information may be about taxation or concession matters.
It is important to make the customer aware that the inquiry is outside the expertise of this Department and that although the Department will offer whatever assistance is possible, the customer should make inquiries with the appropriate department or agency to obtain authoritative advice or action.
Example: Assistance offered by the department may include brochures or a social worker referral.
Negligent advice
The question of whether negligence occurred depends on the particular facts of each case. Duty of care is not breached simply because advice is wrong. The duty is only to exercise reasonable care when giving advice. As a rule carelessness WILL constitute a breach of duty of care.
Example: There is no negligence if a staff member accepts a NSA claim from a customer who is single with a child. There is no legal obligation to advise that PP may be a better entitlement unless the person queries their correct entitlement. There is no carelessness if a person presents a claim form and it is correctly processed.
Examples: The following claims may be successful under Regulation 9 of the FMAA on the basis of negligent advice:
· Due to a procedural breakdown, a customer who is about to lose entitlement to PP is not advised of the time limits regarding transfer to NSA until after the period has expired. This is a late advice.
· A student is advised not to claim benefit until they serve a 13-week waiting period. This is incorrect advice.
· An officer relies on incorrect instructions issued by the Department and, as a result, provides incorrect advice.
A person will usually NOT be able to establish that they have suffered economic loss because of negligent advice if the person has acted on general inquiries made.
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Last reviewed: 27 January 1999
1.3.1 Beneficial Administration of the Act
What is beneficial legislation?
Interpretation of the Social Security Act 1991 involves consideration of the fact that it is 'beneficial' legislation. This characterisation arises from the fact that the Act provides benefits to people. The relevance of the characterisation is that it is a principle of statutory interpretation that if there is an ambiguity in a piece of legislation which is beneficial in character, then the ambiguity should be resolved in a way that is MOST favourable to the people the Act is intended to benefit.
Explanation: In the case of the Social Security Act 1991, the persons intended to benefit are the customers. See DSS v Knight (Federal Court 1996) where Tamberlin, J said:
The Social Security Act 1991 is beneficial legislation par excellence. It is designed to assist the needy and the disadvantaged. As Isaacs J pointed out in Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384, after referring to the Crown Lands Act as being remedial in character, said:
"…this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … This means, of course, not that the true signification of the provision should be strained or exceeded, but that it could be construed so as to give the fullest relief which the fair meaning of its language will allow."
Ambiguous provisions are to be interpreted in a manner favourable to those who are to benefit from the legislation.
Explanation: See Zangzinchai v Milanta (1994) 125 ALR 265 at 272.
However, the interpretation of beneficial provisions must be, as DC Pearce and RS Geddes point out in Statutory Interpretation in Australia, 4th ed (1996) at para 9.2, kept within the confines of the actual language employed and that which is fairly open on the words used.
When is a beneficial approach applied?
Before resort can be had to the beneficial approach, there must FIRST be an ambiguity on the face of the legislation. In deciding on a particular interpretation, consideration must be given to whether that interpretation will be beneficial in most cases, since a consistent approach would have to be adopted in ALL cases. It is NOT possible to apply different interpretations to individual cases, depending on which particular interpretation is most beneficial to each individual customer.
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Last reviewed: 27 January 1999
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Post by rowdy on Jun 2, 2011 7:03:18 GMT 7
What AmmendmentsThanks for the Link Fred: parlinfo.aph.gov.au/parlInfo/sear....esCount=DefaultI have gone through the amendments, and unless I am missing something, and I would like someone to point it out if I am. Interestingly I asked this question a few weeks ago and no one answered it. What are the legislative changes to portability? The only thing I can find is that there have been changes to portability where the DSP recipient is severely disabled and has to remain overseas due to their carer. This is the only change I can find. If there is another one (that I am missing) please someone point it out to me.
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Post by rowdy on Jun 2, 2011 9:04:50 GMT 7
IMPORTANT NOTICE
Further to my last post, I have gone through the amendments that were passed by both houses (attached PDF). My observations are as follows:
1. The amendments received Royal Assent last week on the 25/05/2011 (Fred - thanks for pointing me in the right direction).
2. The commencement date for the amendments is the 1st of July 2011.
3. There have been NO amendments to the statutory definition of an Australian Resident - Section 7 of the SSA:
Section 7 SSA
In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and (b) the nature and extent of the family relationships the person has in Australia; and (c) the nature and extent of the person's employment, business or financial ties with Australia; and (d) the nature and extent of the person's assets located in Australia; and (e) the frequency and duration of the person's travel outside Australia; and (f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
Therefore, not only has Section 7 not been changed, but ALL case law is still very much applicable.
4. There have been NO amendments to the 13 week portability period.
5. The amendments that have been made relate to Section 94 of the SSA. Whereas it has only been a requirement before the amendments come into effect that the DSP recipient only needs to have been an Australian Resident at time of applying and being granted the DSP. There have been no ongoing requirements that they in fact remain an Australian Resident. This has been changed by the Section 94 amendments that provide now that "the person is an Australian resident"
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Post by rowdy on Jun 2, 2011 9:06:48 GMT 7
Oop's - forgot to attach the amendments. Here they are: Attachments:
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Post by Banjo on Jun 21, 2011 14:18:27 GMT 7
I noticed that it was 28 days since my DSP was ''reinstated" so I rang the SSAT to see it they had any news. Was informed that the first day didn't count and C'link had until closing time tomorrow to make a decision. They said it wasn't uncommon for them to take the full 28 days.
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Post by Banker on Jun 21, 2011 14:45:19 GMT 7
I noticed that it was 28 days since my DSP was ''reinstated" so I rang the SSAT to see it they had any news. Was informed that the first day didn't count and C'link had until closing time tomorrow to make a decision. They said it wasn't uncommon for them to take the full 28 days. Banjo, You know what I want to say but if I did you would have to ban me
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Post by rowdy on Jun 21, 2011 14:53:35 GMT 7
I noticed that it was 28 days since my DSP was ''reinstated" so I rang the SSAT to see it they had any news. Was informed that the first day didn't count and C'link had until closing time tomorrow to make a decision. They said it wasn't uncommon for them to take the full 28 days. Banjo, You know what I want to say but if I did you would have to ban me Banker you are and administrator just say it, when Banjo ban's you, just un-ban yourself. ;D
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Post by Banjo on Jun 21, 2011 16:29:20 GMT 7
When I ban Banker he wont get back in the side as boot sprigger.
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Post by spaceyone on Jun 21, 2011 17:04:08 GMT 7
I noticed that it was 28 days since my DSP was ''reinstated" so I rang the SSAT to see it they had any news. Was informed that the first day didn't count and C'link had until closing time tomorrow to make a decision. They said it wasn't uncommon for them to take the full 28 days. I hope at least one of their staff members can count, or you might have to wait until the end of the week. ;D
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Post by Banjo on Jun 21, 2011 17:13:31 GMT 7
They can count pretty good when the numbers are in their interest...
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Post by Banker on Jun 21, 2011 18:03:41 GMT 7
I noticed that it was 28 days since my DSP was ''reinstated" so I rang the SSAT to see it they had any news. Was informed that the first day didn't count and C'link had until closing time tomorrow to make a decision. They said it wasn't uncommon for them to take the full 28 days. I hope at least one of their staff members can count, or you might have to wait until the end of the week. ;D The one that does the counting is on holiday in Phuket getting information on pensioners ;D
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Post by Banjo on Jun 23, 2011 10:47:52 GMT 7
Well I'm officially a pensioner again, Centrelink decided not to appeal the decision after taking the full 28 days to decide. Am I being paid? Errr.... no, not exactly, reinstatement of payments can take up to two weeks. AFTER ALL THE MONEY THEY WASTE HARASSING PEOPLE LIKE ME I'M NOT SURPRISED THEY CAN'T AFFORD A F###ING COMPUTER!!!!!!!
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Post by rowdy on Jun 23, 2011 10:54:19 GMT 7
Well I'm officially a pensioner again, Centrelink decided not to appeal the decision after taking the full 28 days to decide. Am I being paid? Errr.... no, not exactly, reinstatement of payments can take up to two weeks. AFTER ALL THE MONEY THEY WASTE HARASSING PEOPLE LIKE ME I'M NOT SURPRISED THEY CAN'T AFFORD A F###ING COMPUTER!!!!!!! That' s GREAT news Banjo ---- Well done.
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