Alhmmad; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 436

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 436

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° 2007/1420

GENERAL  ADMINISTRATIVE  DIVISION

)

Re

SECRETARY,

DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And ABDULMAJEED JAAREI ALHMMAD

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date27 May 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Alhmmad’s Newstart Allowance is payable from 3 October 2006.

(sgd) Conrad Ermert

Member

SOCIAL SECURITY – Newstart allowance –‑ start day ‑ whether claim lodged within 14 days of initial contact or no more than 13 weeks after initial contact – whether date of claim deemed to be made earlier – decision set aside.

Social Security Administration Act 1999

REASONS FOR DECISION

27 May 2008  Mr C. Ermert, Member

INTRODUCTION

1.      On 9 September 2003 Mr Alhmmad, the respondent in this case, registered with the Supreme Court of Queensland a Deed Poll changing his name from Myhsein Nasir Ahmed to Abdulmajeed Jaarei Alhmmad.  Mr Alhmmad advised Centrelink, the service delivery agent for the Department of Education, Employment and Workplace Relations, of the name change and provided a certificate, which is recorded in Centrelink file records dated 1 September 2003 and 2 January 2004.  Mr Alhmmad left Australia in January 2004 and returned on 7 June 2006.  On 21 June 2006 he contacted Centrelink to enquire about restoring his Newstart Allowance.  This contact was recorded by Centrelink and a letter of acknowledgement with a claim form was sent by Centrelink on the same day.

2.      The letter was addressed to Mr Alhmmad’s previous name, Mr Ahmed.  Mr Alhmmad did not receive the letter; nor did he receive the follow-up letters from Centrelink dated 27 June 2006 and 5 July 2006.  During July and August 2006 Mr Alhmmad claims to have contacted Centrelink on three occasions.  There is no Centrelink record of these contacts.  Mr Alhmmad stated that the Centrelink officers would not discuss the issue with him as his current name was not registered on the computer system and he was told he would have to submit another copy of his Deed Poll certificate.  Mr Alhmmad travelled to Brisbane to acquire another copy of the certificate and after contacting Centrelink on 16 October 2006 he submitted a claim for Newstart Allowance with the copy of the certificate.  Centrelink commenced payment of the allowance with effect from 3 October 2006, the date on which Mr Alhmmad had the next recorded contact with Centrelink. 

3.      Mr Alhmmad requested that he be paid Newstart Allowance from 21 June 2006 when he first contacted Centrelink after his return to Australia.  The request was refused and this decision was affirmed by an Authorised Review Officer (ARO) of Centrelink.  Mr Alhmmad applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO decision.  In its decision of 15 March 2007, the SSAT set aside the ARO decision and substituted its decision that Mr Alhmmad be paid Newstart Allowance from 21 June 2006 and that Mr Alhmmad be paid arrears.  The Secretary to the Department of Education, Employment and Workplace Relations, the applicant in this case, applied for a review of the SSAT decision, which is the subject of this review.

THE HEARING

4. At the hearing Mr Alhmmad represented himself and was assisted by an interpreter. The Secretary was represented by Mr Tim Noonan, a Centrelink advocate. I had before me the documents lodged by the applicant pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I took in as exhibits 17 documents from the applicant (Exhibits A1 to A17) and three from the respondent (Exhibits R1 to R3).

THE ISSUE

5.      The issue in this matter is the determination of the earliest date from which Mr Alhmmad can be paid Newstart Allowance.

LEGISLATION

6.      The provisions which govern the start date of social security benefits are contained in the Social Security (Administration) Act 1999 (the Act).  Section 41 of the Act states that a social security payment becomes payable to a person on the person’s start day.  Section 42 of the Act states that a person’s start day is the day determined in accordance with Schedule 2 of the Act.  Clause 3(1) of Schedule 2 states that, if a person makes a claim and is qualified for the payment on the day on which the claim is made, the start day is the day on which the claim is made. 

7.      The provisions for the backdating of payments are contained in section 13 of the Act.  Section 13(1) relevantly provides that if a person has contacted the Department and lodges a claim within 14 days of the contact then the person is taken to have made a claim on the day on which the Department was contacted.

8.      Section 13(3A) of the Act makes certain provisions for a claim made more than 14 days after the initial contact as follows:

(3A)  For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

EVIDENCE AND SUBMISSIONS

9.      Mr Alhmmad’s evidence was that, in September 2003 he submitted to Centrelink a copy of a Deed Poll, registered in Queensland on 9 September 2003, changing his name from Myhsein Nasir Ahmed to Abdulmajeed Jaarei Alhmmad (T21).  In January 2004 Mr Alhmmad left Australia and returned on 7 June 2006.  On 12 June 2006 Mr Alhmmad took up residence at 8/13 Buller Road, Artarmon, sharing the accommodation with Zach Benrsen, to whom he was paying his rent, and one other person named David.

10.     In his evidence Mr Alhmmad said that he contacted Centrelink by telephone on 21 June 2006 in order to restore his Newstart Allowance payments.  He said that the Centrelink officer told him that Centrelink would telephone him back or send him a letter. Mr Alhmmad said that he discussed the issue of his change of name in a telephone conversation with Centrelink on 27 June 2006. According to Mr Alhmmad, Centrelink officers could not find the record of his change of name and told him he would have to provide another copy of the certificate.

11.     Mr Alhmmad’s evidence was that he did not receive the letter sent as a result of his 21 June 2006 conversation with Centrelink.  That letter dated 21 June 2006 (T4) acknowledged his telephone contact about his Newstart Allowance and required him to submit a written claim.  Mr Alhmmad pointed out that the letter was addressed to Myhsein Nasir Ahmed and he stated repeatedly that did not receive that letter.  His evidence was that mail addressed to his accommodation in Artarmon was collected by Mr Benrsen, who did not recognise his ‘Ahmed’ name.  After Mr Alhmmad advised Mr Benrsen of his change of name  he later received other Centrelink letters sent there in his ‘Ahmed’ name. 

12.     Mr Alhmmad’s further evidence was that between 21 June 2006 and 3 October 2006 he applied for labouring jobs without success.  He also undertook a security officers’ course but could not afford the money required for the licence to undertake employment in that field.  Mr Alhmmad stated also that during July and August 2006 he went to three Centrelink offices in Liverpool, Chatswood and Auburn respectively, to enquire about his claim for Newstart Allowance. However, as they did not have anything on their records showing his Alhmmad name, they would not talk to him.  He said:

Because I was telling them that my name was Abdulmajeed Alhmmad and explain that I already changed my name and it should be on their system and because of language difficulties they were not understanding me appropriately so they wanted to see a paper showing as a proof of identity. 

13.     Mr Alhmmad gave evidence that he travelled to Queensland, acquired another copy of his Deed Poll and submitted it to Centrelink.  He said that he again advised Centrelink on 3 October 2006 of his change of name and submitted the copy of the Deed Poll to Centrelink with a claim form lodged on 16 October 2006.  Mr Alhmmad agreed that his Newstart Allowance payments commenced with effect from 3 October 2006 as a result of the claim form. 

14.     Mr Noonan submitted that the substantive issue is whether a written claim was received within 14 days or no later than 13 weeks after the initial contact with Centrelink, so that the provisions of subsections 13(1) and 13(3A) of the Act can be applied to deem the date of contact to be the date the respondent’s claim is made. 

15.     Mr Noonan submitted that as Mr Alhmmad did not lodge a written claim for Newstart allowance within 13 weeks of 21 June 2006, there is no entitlement for payment from that date.  He contended that Mr Alhmmad again contacted Centrelink about making a claim for Newstart allowance on 3 October 2006 and lodged a claim for Newstart allowance on 16 October 2006.  As 16 October is within 14 days of 3 October, Mr Noonan submitted that he has an entitlement to Newstart allowance, starting from 3 October 2006

16.     In response to Mr Alhmmad’s evidence that he did not receive the Centrelink letters or notices dated 21 June, 27 June or 5 July 2006 because they were sent under his previous name of ‘Ahmed’, Mr Noonan opined that it is more likely than not that Mr Benrsen would inquire of his co-tenants as to whether they knew of the person whose name appeared on the correspondence.  Accordingly, Mr Noonan asked the Tribunal to find that these letters were received by Mr Alhmmad.

17.     Mr Noonan further contended that if the Tribunal found that Centrelink had recorded Mr Alhmmad’s name change by January 2004 it would not alter the fact that a written claim for Newstart Allowance was not lodged until 16 October 2006.  The legislation requires that a written claim be made and such claim was not made until 16 October 2006 which is outside the 13 week period from 21 June 2006, which was the initial contact date.  Mr Noonan advised that such a finding may however entitle Mr Alhmmad to make a claim for customer compensation for defective administration.

18.     Mr Noonan also raised the issue of the credibility of Mr Alhmmad on the basis of Mr Alhmmad’s failure to give a positive response to the question about whether he had asked Centrelink for a claim form. 

19.     Mr Noonan summarised the respondent’s position as follows:

under the legislation, as it’s crystal clear that there was no written claim for Newstart Allowance until 16 October 2006, as that claim was lodged outside 13 weeks from the initial contact on 21 June but within 14 days of the next contact of 3 October that you cannot grant Newstart Allowance on a date prior to 3 October 2006.  Again, if you find that the notices were not validly issued because they are incorrectly addressed, that’s a matter which unfortunately the legislation which you’re looking at, does not take into account.  It might be a matter for Mr Alhmmad to pursue in another arena. (Transcript page 56).

CONSIDERATION

20.     There is no dispute between the parties over the key facts of this matter, that Mr Alhmmad first contacted Centrelink about claiming Newstart Allowance on 21 June 2006 and that he first lodged a written claim on 16 October 2006.

21.     Section 13(3A) of the Act provides for claims made more than 14 days after the initial contact.  All provisions contained in this subsection are connected by and.  Accordingly, for the start date for Mr Alhmmad’s newstart allowance to be deemed to be 21 June 2006 all the provisions of section 13(3A) have to be met.  In this case Mr Alhmmad satisfies subsection (a) in that he contacted Centrelink on 21 June 2006 about a social security payment, namely Newstart Allowance.  Subsection (b) requires him to be qualified for the payment on the day on which he contacted Centrelink.  In his Statement of Facts and Contentions Mr Noonan accepts that Mr Alhmmad was qualified for newstart allowance on 3 October 2006, but not necessarily on 21 June 2006 (clause 4.8).  Mr Noonan made no further submissions on this issue and I heard no evidence to show that Mr Alhmmad was not qualified on 21 June 2006 on the same grounds as qualified him on 3 October 2006.  However, I do not need to make a finding on this point.

22.     In the letter dated 21 June 2006 Centrelink gave Mr Alhmmad a written notice acknowledging the contact as required by subsection (c).  Subsection (d) requires Mr Alhmmad to have lodged a claim for the allowance more than 14 days but not more than 13 weeks after the contact on 21 June 2006.  Mr Alhmmad’s evidence is that he contacted Centrelink on three occasions in July and August 2006.  However, he gave no evidence that he lodged a claim on any of those occasions.  Indeed his evidence was that Centrelink would not talk to him as his name was not registered on their computer system.  Subsection (e) requires the Secretary to be satisfied under the special circumstances that it was not reasonably practical for the claim to be lodged earlier.  I will consider this issue if necessary. 

23.      Returning to the requirement of subsection (d) to lodge a claim, I refer to Section 16(1) of the Act which requires a person to make a claim by lodging a written claim or by making a claim in accordance with subsection (7).  In this case there are no contentions from Mr Alhmmad nor is there evidence of the submission of a written claim before 16 October 2006.  Subsection (7) allows a person to make a claim in a manner approved by the Secretary.  In this case there is no evidence of any particular approval by the Secretary of a claim other than a written claim.

24.     There is no evidence of the lodgement of a claim before the claim form lodged by Mr Alhmmad on 16 October 2006.  Nor is there evidence of approvals by the Secretary of a claim made in any other manner.  As a result I find that Mr Alhmmad did not make a claim as required by section 16 of the Act before 16 October 2006.  16 October 2006 is more than 13 weeks after Mr Alhmmad’s contact with Centrelink on 21 June 2006.  Consequently, I find that Mr Alhmmad did not lodge a claim not more than 13 weeks after the Department is contacted as required to meet subsection 13(3A)(d) of the Act.  Accordingly, Mr Alhmmad’s start date cannot be deemed to be 21 June 2006.

25.     I note that the SSAT found that Mr Alhmmad lodged a claim for newstart allowance on 3 October 2006 which is more than 14 days but not more than 13 weeks after his contact of 21 June 2006 (subsection (d) met) (T2 page 8).  I find on the contrary, that 3 October 2006 is not within 13 weeks of 21 June 2006 and accordingly subsection (d) would not be met, even by a claim submitted on 3 October 2006.

26.     There is no dispute that on 3 October 2006, Mr Alhmmad again contacted Centrelink about his claim for Newstart Allowance.  This was followed by his lodging a completed claim form on 16 October 2006; and Centrelink subsequently commenced payment with effect 3 October 2006.  As the claim form lodged on 16 October 2006 is the first and only claim form for Newstart Allowance submitted by Mr Alhmmad over the period in question, the start date of 3 October 2006 is the earliest date that meets the provisions of section 13 of the Act. 

27.     As a consequence of my finding there is no need for me to consider further the evidence and submissions regarding the receipt or otherwise of the letters sent by Centrelink to Mr Alhmmad, addressed to Mr Ahmed.  There is also no need for me to consider the issue of whether Centrelink received advice of Mr Alhmmad’s change of name in or before January 2004; and whether, as a result, Centrelink erred in not having his current name entered in the computer system.  In regard to these issues Mr Noonan submitted that they may be cause for Mr Alhmmad to make a claim for compensation for defective administration.

28.     I have not proceeded to consider the question of the credit of Mr Alhmmad raised by Mr Noonan either.  The essential facts of this matter are clear and are not affected by any considerations of credit.

29.     As a result of my considerations, I find that Mr Alhmmad does not meet the provisions of section 13 of the Act that would allow the start day for his Newstart Allowance to be deemed to be 21 June 2006.  The earliest start day for Mr Alhmmad’s Newstart Allowance has been correctly determined to be 3 October 2006.  Consequently, Mr Alhmmad’s application is not successful.

DECISION

30.     The Tribunal sets aside the decision under review and substitutes the decision that Mr Alhmmad’s Newstart Allowance is payable from 3 October 2006.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)             Dianne Eva
  Clerk

Date of Hearing:  14 March 2008

Date of Decision:  27 May 2008

Advocate for the applicant:                 Mr Abdulmajeed Alhmmad, self represented

Advocate for the respondent:             Mr Tim Noonan, Centrelink Legal Services