Aljbour and Secretary, Department of Social Services (Social services second review)

Aljbour and Secretary, Department of Social Services (Social services second review) [2020] AATA 762 (3 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3993
Re:Nima Aljbour
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 April 2020
Place:Sydney

The decision under review is affirmed.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – carer payment – claim for back payment – requirements for making a social security claim – deemed claim – where application not in proper form – start day – decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, Sch 2
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 April 2020

On 4 July 2019 Ms Nima Aljbour (the Applicant) applied to this Tribunal to review a decision made by the Social Services and Child Support Division of the Tribunal (AAT1) which had confirmed a decision made by the Secretary (the Respondent) to reject the Applicant’s claim for a backdating of her payments for carer allowance and carer payment.
The Applicant was granted her payments effective 21 May 2018 (see below) but in conversations with the department, and not in any formal request or documentation, she asked for consideration of these payments being backdated to 19 October 2017. That was the date on which she first discussed her application with the department.
The relevant departmental file note, dated 23 August 2018 recording details of the conversation states:
“Claim was successful but CRA/CDA were only paid from 21.05.2018.
Cus is appealing start date as feels that claim should have been granted from initial claim date in OCT 2017.”[1]
[1] Section 37 Tribunal Documents (T Docs) page 67.
Thus there was never a formal decision to actually reject an application for back payment but rather, the department, and then an Authorised Review Officer (ARO), determined that the date of the carer payments should commence as from 21 May 2018. The effective date of the department’s decision was 23 August 2018 and that of the ARO was 22 February 2019.
The Applicant’s appeal was heard by this Tribunal on 23 March 2020, with all parties participating by telephone and the Applicant assisted by an Arabic language interpreter.
KEY LEGISLATIVE PROVISION
Section 11 of the Social Security (Administration) Act 1999 (Cth) (the Act) provides that as a “general rule”
11 General rule
(1) Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:
(a) A social security payment; or
(b) A concession card;
must make a claim for the payment or card in accordance with this Division.
In the usual course of events, such a claim must be[2]:
(a)in writing (including by electronic means);
(b)in an approved form;
(c)completed;
(d)signed by the claimant and if relevant, their partner; and
(e)lodged in a manner approved by the Secretary (including by electronic means, in person or by mail delivered to a specified place).
[2] See section 16 of the Administration Act and 8.1.1.20 of the Social Security Guide
The question then becomes when did the Applicant make a “claim for the payment” in a way which was “in accordance with” the legislative requirements.
MAKING A SOCIAL SECURITY CLAIM
In addition to the “general rule” in s 11 of the Act, there are a number of other legislative provisions which outline how a claim must be made before it can be considered for payment.
Section 13 of the Act provides:
13 Deemed claim—person contacting Department about a claim for a social security payment
(1) 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 within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…
(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of fax, computer equipment or other electronic means.
Section 16 outlines the nature of the requirements for a claim to be in writing in specified form. Relevantly, it provides:
16 How to make a claim
(1) A person makes a claim for a social security payment or a concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
……
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
The Act further provides certain clear rules for determining the “start day” for various social security payments. Section 4 of Part 2 of Schedule 2 provides:
4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Thus, the process is that where an applicant contacts the department to make an enquiry about the lodgment of a claim, that initial contacted is noted and recorded on that date. An applicant then has 14 days in which to lodge a claim, which must be in the prescribed form. If additional information is required to support that claim, (such as proof of identity, citizenship or medical evidence), such material must be lodged within 13 weeks after the day of contact. If all required information is not in the hands of the department by the prescribed date, then the claim is taken to have been automatically cancelled. Such cancelled claims cannot be revived; an applicant must submit a fresh and complying application in order to have their matter reconsidered.
APPLICANT’S CLAIM HISTORY
The first contact: 19 October 2017
The Applicant called the Department (then the Department of Human Services) on 19 October 2017 to seek assistance in making a claim for carer allowance and carer payment for one of her children who suffered from a diagnosed medical condition.
She testified that she was advised on that occasion that she would need to include some additional material in support of her claim. She apparently contacted the Department again the following day (20 October 2017), although she claims not to remember such a contact, and was then sent the necessary application form for completion.[3]
[3] T Docs pages 56 and 57.
The Applicant in her written statement to the Tribunal reports:
“On the 28^th November 2017 I went to Parramatta Centrelink office and submitted the above required documents that was required by me, and the officer stated that the claim documents are all completed and I have for the claim to be processed and it will take up to 6 weeks to get it approved.”[4] (original text)
[4] Applicant’s Statement dated 11 February 2020.
The Secretary accepts that “The form was completed and returned by the Applicant to the Department on 29 November 2017”.[5]
[5] Respondent’s Statement of Facts, Issues and Contentions (SFIC) paragraph 4; T docs page 59.
There is confusion in the evidence of the parties as to exactly what documents were requested, sent out or returned. The evidence supports the following findings:
(a)The form returned by the Applicant on 29 November was a Carer Allowance – Medical Report (for child under 6 years) form[6] and it was accompanied by a medical report from Westmead Children’s Hospital and a report from family physician Dr Mary Gabriel;[7]
(b)The Applicant does not appear to have received a CDF (Client Declaration Form)[8] and hence did not sign and complete such documentation;
(c)The Applicant was requested to provide details of her passport[9] and she gave evidence to the effect that she did so at the Parramatta Centrelink office on 28 November 2017. The Respondent states that it has no record to confirm this, however, the Tribunal is inclined to accept that Applicant’s testimony and is reinforced in its conclusion by the fact that while the Applicant was, on subsequent occasions, asked for additional material, passport details were not included in any such requirements.[10] Furthermore, it is clear from the application for of 21 May 2018 which was pre-populated by the department that it was, at least at that time, in possession of the Applicant’s passport details.[11]
[6] SFIC at paragraph 4
[7] Applicant’s Statement.
[8] T Docs page 59.
[9] T Docs page 56.
[10] T Docs pages 58 and 62.
[11] T Docs page 32.
This is also the clear evidence in the departmental record which states:
“Customer contacted CC MORELAND on 13 FEB 2018 regarding General Enquiry for Carer Payment. Information was obtained via Phone Call.
Document created by EJI558 on 13 FEB 2018.
Acknowledge Claim / Form.
Claimant has lodged claim on 19/10/2017, Claimant stated that she didn’t receive CDF to sign and return and every time she calls been told claim still in process, adv claimant to lodge a new claim and must submit the claim, SA413 was lodged on 29.11.17 (within 13 wks).
Can you please assess claim using SA413 was previously lodged?
Otherwise adv claimant to provide a new one. Thanks
ANNOTATE BY WD0 ON 30 APRIL 2018
PD status shows claim id 0012496881 has been withdrawn – nfa required.”[12]
[12] T Docs page 59.
The SA413 apparently refers to the required medical reports.
In evidence to the Tribunal the Applicant agreed in answer to a direct question, that she had not, in relation to the October 2017 contact, ever completed and signed a form which needed to be submitted to the department to constitute a formal application (“in a manner approved by the Secretary”) for the allowances to be paid.
The second contact: 13 February 2018
The Applicant contacted the Department on 13 February 2018 to ascertain the status of her application but was advised that her claim on 19 October 2017 had “not been lodged” and hence, as 13 weeks had expired from that date (on 19 January 2018[13]) she would need to lodge a new claim.
[13] The ARO reports states: “On 19 January 2018, as your claim had not been submitted, it was automatically cancelled.” T Docs page 54.
The Applicant did so, online, on that day, 13 February 2018, but departmental records appear to show that she then withdrew the claim on 20 February 2018.
It is clear that such a claim was lodged as the ARO reports states unambiguously:
“You contacted the department about your claim on 13 February 2018 and were told you needed to lodge a new claim. A new claim for payments was submitted on that date.”[14] (emphasis added)
[14] T Docs page 54. Also Appendix A to SFIC; and SFIC at para 6.
The Applicant flatly denies that she withdrew such a claim and the only record of such a withdrawal appears by way of departmental file notes.[15] The ARO report is in the passive voice:
“On 20 February 2018 your claim was withdrawn.”[16]
[15] T Docs pages 59 and 60; Appendix A to SFIC.
[16] T Docs page 54.
How, and by whom, is utterly unclear from the documentation. It cannot have been as a result of not meeting time requirements as there is nothing which relates to processing claims within a seven day period in the legislation.
The departmental records establish that a claim was submitted on 13 February 2018 but again there is no record of any claim form signed by the Applicant and she does not claim to have signed anything. Rather, she suggests that some sort of claim was generated and lodged online by the departmental officer to whom she spoke on that date. She states that the officer in question told her no further information was required as it had all been lodged in November 2017 and was still valid. The Secretary concedes that an online application form for carer allowance and carer payment was lodged.[17]
[17] SFIC para 6.
The only conclusion that the Tribunal can reach is that the Applicant, acting in good faith, accepted that the department had lodged a new claim on her behalf. There is then no evidence to suggest that the department sent the Applicant the necessary form (pre-populated or otherwise) for her to sign and return, as is required. How and why this miscommunication occurred cannot be established from the material available to the Tribunal.
The failure to lodge a signed form (“in the manner approved by the Secretary”) means that, for the second time, the Applicant thought she had done all that was necessary to lodge a claim, but in fact, had not done so. The Tribunal understands her expressed sense of frustration at what she sees as the failure of the department to deal with her legitimate claim in a timely and proper fashion.
The third contact: 21 May 2018
Finally, on 21 May 2018 the Applicant submitted what was in effect a third application, apparently in exactly the same terms as those of 29 November 2017 and 13 February 2018, although one of the medical reports was apparently updated as six months had expired since its initial issuance. This application was granted and the Applicant’s payments of carer allowance and carer payment commenced on 21 August 2018 effective from the date of application (21 May 2018).
The Applicant then asked, in discussions with the department, for the backdating of those payments to the date of her original contact with the Department in October 2017.[18]
[18] T Docs page 67.
It was this request which was rejected by the Department and that decision was the one affirmed by the ARO and the AAT1.
This case turns on the simple question of when a valid application was first made.
The Applicant claims that her initial contact on 19 October 2017, resulting in the lodgment of her form on 29 November 2017 means that, as the supporting material for that application was identical to that which resulted in the grant of the payments on 21 August 2018, her payments should be taken to have commenced on that date.
Failing that, her claim is that 13 February 2018 should be the operative date and that she did not withdraw this application on 20 February 2018 as claimed by the Respondent.
The Respondent’s position is that the contact of 19 October 2017 did not result in the lodgment of a formal claim, “in the manner approved by the Secretary” (that is, inter alia, signed personally by the applicant). The same applies to the 13 February 2018 claim which, in addition, even if something had been lodged, was taken to have been “withdrawn” by the Applicant – although as the Tribunal has already noted, the Applicant denies taking any such action.
Hence the Respondent asserts that the Applicant’s payments can only commence from 21 May 2018, the date of the submission of the claim approved on 21 August 2018.
CONSIDERATION
In considering the evidence before it the Tribunal makes two preliminary observations.
In the first instance, the Tribunal accepts that the Applicant is a person of truth and credibility and sees no reason not to accept the sworn evidence which she has given and the details of her written submission. It also accepts, in relation to the Applicant that she was, at all times (from at least October 2017) entitled to the carer allowance and the carer payment in relation to her child.
Secondly, the Tribunal finds a great deal of the evidence submitted by the department confusing and unclear. It appreciates that departmental officers, especially when dealing with applicants requiring interpreter assistance, are working under pressure and operate to the best of their abilities, with integrity and a genuine desire to be of assistance to “customers”.
However, in these circumstances it is not uncommon for miscommunication and misunderstanding to arise on both sides. This appears to be the case in this instance. For example, it is simply not possible to reconcile the departmental record that the February 2013 application was withdrawn with the Applicant’s sworn testimony (supported by any common sense understanding of her position) that she did no such thing.
The Tribunal is in no doubt that the Applicant had a genuine and well-founded belief that both in October 2017 and February 2018 she had completed and submitted a valid application for carer payments.
Unfortunately for her, she had not. The specific process which was completed properly in May 2018 and which resulted in her payments being commenced, was not followed in either of the two previous instances. Hence, the Applicant did not submit an application in the form required by the legislation and, on that basis alone, her applications could not be considered.
As the AAT1 so cogently stated:
“Careful review of the legislation reveals no special circumstances or backdating provisions exist within the Act that would allow the tribunal to take into account Mrs Aljbour’s difficult caring situation, misinterpretation of the claims procedures and/or incorrect advices, administrative misadventure or Centrelink delays. The tribunal has no power the change the law and must apply it the way Parliament intended.”[19]
[19] T Docs page 5.
What happened was essentially not Mrs Aljbour’s fault, and it is regrettable that she has to bear the consequences.
DECISION
The decision under review is affirmed.

[2020] AATA 762

3 April 2020

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Administrative Law

Statutory Interpretation

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