Avder and Secretary, Department of Education, Science and Training

[2007] AATA 1844

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° V 200700013

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MURAT AVDER

Applicant

And

SECRETARY,

DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date9 October 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

SOCIAL SECURITY – youth allowance – commencement date – start day – day on which Department contacted ‑ whether contacted earlier – no record of contact – decision under review affirmed

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999

REASONS FOR DECISION

9 October 2007  Mr C. Ermert, Member

INTRODUCTION

1.      Murat Avder, the applicant, has some attention and learning difficulties.  On his behalf, Mrs Neriman Averi, his mother, looks after all of Murat’s dealings with Centrelink.  Centrelink is the service delivery agency for the Secretary to the Department of Education, Science and Training, the respondent. 

2.      Prior to July 2005, Mrs Averi was receiving a carer allowance for Murat.  In July 2005, as Murat was about to turn 16 years old, Mrs Averi received an application form relating to the carer allowance for a child turning 16 years of age in the mail.  In August 2005 Mrs Averi lodged the carer payment application at the Cheltenham Centrelink office.  Mrs Averi claims that, on the same occasion, she also submitted a claim for youth allowance on behalf of Murat.  There are no records held by Centrelink of this youth allowance claim.

3.      In May 2006 Mrs Averi became aware that Centrelink had no record of a youth allowance claim for Murat.  On 8 May 2006 she notified her intention to make such a claim, and submitted the youth allowance claim form on 15 May 2006. Centrelink commenced paying youth allowance to Murat with the start date of 8 May 2006.

4.      On 5 June 2006 Murat asked for a review of the decision to grant him youth allowance from 8 May 2006, on the basis that a claim had first been lodged by his mother in 2005.  He sought arrears of youth allowance from the alleged lodgement date in 2005.  An Authorised Review Officer (ARO) reviewed the original decision and affirmed it. Murat sought review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision on 23 November 2006.  The present matter is a review of the SSAT decision.

THE HEARING

5. At the hearing Murat was represented by Mrs Averi. The respondent was represented by Mr Faisal Bakhtiar, an advocate with Centrelink Legal Services. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).  I accepted into evidence additional documents submitted by the respondent (Exhibits R1 to R3). 

6.      The initial hearing was adjourned to provide Mrs Averi with an opportunity to cross-examine Mr Rob McConville, the Centrelink officer who she claims accepted the 2005 claim for youth allowance.  For this second part of the hearing Mrs Averi attended by telephone, as did Mr McConville.  I also had before me a statement made by Mr McConville, dated 4 July 2007.  Mr Bakhtiar was again present as the representative of the respondent.

LEGISLATION AND ISSUES

7. Section 41 of the Social Security Administration Act 1999 (the Administration Act) provides that a payment such as youth allowance commences from the person’s start day.  The general rule is that the person’s start day is the day that they make a claim for payment (clause 3(1) of Schedule 2 of the Administration Act).

8. Section 13(1) of the Administration Act deems, under certain conditions, that the claim is taken to have been made on the day on which the Department of Education, Science and Training (the Department) was contacted. It states:

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.√

9. There is no dispute that section 13(1) of the Administration Act has been satisfied in regard to the payment of Murat’s youth allowance from a start date of 8 May 2006. The issue in contention is whether Mrs Averi, on behalf of Murat, contacted Centrelink about a claim for youth allowance at some time before 8 May 2006.

Evidence

10.     In her oral evidence Mrs Averi said that, when Murat was about to turn 16, Centrelink sent her application forms for her carer’s allowance and also for Murat’s youth allowance.  Mrs Averi stated that she took both forms to Centrelink, where she was advised to complete and submit both forms in case the carer’s allowance was rejected.  Her evidence was that, after obtaining a medical report in support of her claim for her carer’s allowance, she handed both forms to a person at Centrelink.

11.     Mrs Averi said that she did not find out until about ten months later that Murat was not on the Centrelink files.  During that time she had not noticed the absence of an allowance because all her Centrelink payments were going in to the one account.  Mrs Averi said that, when she realised that the youth allowance was not being paid, she went to the Cheltenham Centrelink on three occasions, asking the staff to look for the youth allowance form.  During those visits she said that she identified the Centrelink officer to whom she gave the forms.  The officer was later identified by the respondent as Mr Rob McConville.  Mrs Averi stated that she particularly remembered handing the forms to Mr McConville, as she also had to hand over a photocopy of Murat’s identification document, his birth certificate and a school report.

12.     Mrs Averi said that the Centrelink staff could not find the youth allowance claim form and gave her an appeal document to complete. 

13.     Under cross-examination, Mrs Averi agreed that, although she had originally said she handed in the forms in June 2005, it must have been in August 2005 in line with the date of the submission of her carer’s allowance form. 

14.     The hearing was resumed on 24 August 2007 to hear evidence from Mr McConville.  In his evidence Mr McConville stated repeatedly that he was quite sure that he had not received a youth allowance claim form from Mrs Averi.  He said that he was 100 per cent sure because he had never seen a youth allowance claim form and he would have been curious about it if he had seen one for the first time. 

15.     Mr McConville also stated that the immediate registration of any inquiry was an important procedure in Centrelink operations. 

Consideration

16.     This is a difficult matter.  On one hand, Mrs Averi states that she has a good memory of the occasion on which she claims she handed a youth allowance form to Mr McConville.  The details she recounts in her evidence appear to support a reasonable recall of an event as described.  On the other hand, Mr McConville states that, although he has recollections of Mrs Averi and Murat attending the Centrelink office, he has never received a form for youth allowance from any client.  Mr McConville states that he would have remembered such a contact as he had never seen a youth allowance claim form.  Such an enquiry would have been a first for him which he would have remembered.  Mr McConville was also firm in his evidence of the importance within Centrelink procedures of immediately registering all inquiries and in this case there is no record of an inquiry prior to 8 May 2006 in regard to youth allowance for Murat. 

17. On balance, I accept Mr McConville’s evidence. Without some further evidence that points towards a contact with Centrelink about Murat’s youth allowance prior to 8 May 2006, I am not able to find that such a contact was made. As a consequence, I find that Mrs Averi first contacted the Department in regard to Murat’s youth allowance on 8 May 2006. In accordance with section 13(1) of the Administration Act, 8 May 2006 becomes the day on which Mrs Averi is deemed to have made the claim It follows that youth allowance becomes payable from 8 May 2006; which is in fact what has occurred.

DECISION

18.The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd) Lauren Spragg

Clerk

Date of Hearing:  21 June 2007

Date of Decision:  9 October 2007

Advocate for the applicant:                 Ms Neriman Averi, mother of the applicant

Advocate for the respondent:             Mr Faisal Bakhtiar, Centrelink Legal Services