Bagh and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 128

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3157

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEEPANJALI BAGH

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member K Bean

Date28 February 2011

PlaceAdelaide

Decision The decision under review is affirmed.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – Parenting Payment  – Successive claims with last claim being successful - Whether payments may be backdated to date of first claim – Provisions governing the date from which payments may be made – Review of unsuccessful claims not sought within 13 weeks – No discretion to pay entitlement from earlier date – Decision under review affirmed.

Social Security (Administration) Act 1999 s 107

REASONS FOR DECISION

28 February 2011   Senior Member K Bean

introduction

1.      The applicant, Ms Bagh, had a baby on 9 April 2009 and claimed Parenting Payment (Partnered) (PPP) on 1 July 2009.  That claim was rejected due to her failure to provide all of the required information to Centrelink.  Ms Bagh made a further application for PPP on 12 October 2009 which was again rejected on a similar basis.  She made a third claim on 23 March 2010, which was accepted.

2.      However, Ms Bagh has claimed that, in light of her earlier claims for PPP, now that she has provided all of the required information, her PPP should be backdated to the date of her first claim.  That contention has not been accepted by the decision-makers who have considered it to date and on 2 July 2010, the Social Security Appeals Tribunal (SSAT) affirmed a decision by an Authorised Review Officer that PPP was payable to Ms Bagh only from 23 March 2010.

3.      Ms Bagh has now sought review of the decision of the SSAT by this Tribunal.

the issue

4.      The issue for me is whether PPP is payable to Ms Bagh prior to 23 March 2010.

the legislative framework

5.      The general rule in relation to payment of social security entitlements is that if a person is qualified for a payment on the date upon which they lodge a written claim for that payment and their claim for the payment is granted, then they are paid the relevant entitlement from that day[1]. 

[1] Social Security (Administration) Act 1999, Schedule 2, Part 2.

6. Even where a person’s claim is rejected, they may still be paid from the date they lodged their claim if they challenge the decision rejecting their claim within 13 weeks of being notified of it, and that challenge is successful. However where a person seeks review of a rejection decision more than 13 weeks after being notified of that decision, then any decision granting their claim only takes effect from the date they sought review of the rejection decision. That is the effect of s 107 of the Social Security (Administration) Act 1999 (the Administration Act), which relevantly provides as follows:

“107     General rule

…

(2)      If:

(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.

(3)      If:

(a)a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.”

the facts

7.      The facts giving rise to this application are not in dispute.  The parties agreed that Ms Bagh first claimed PPP on 1 July 2009 and the claim was rejected on 29 July 2009, because the documents requested had not been provided[2].  Centrelink’s letter of 29 July 2009 also advised Ms Bagh that:

“… if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to the decision, or any back payment, might only be able to take effect from the date you ask”.  [3]

[2] T12/88

[3] T12/88

8.      Ms Bagh did not seek to challenge the rejection decision, but on 12 October 2009 made a further application for PPP[4].  On 12 October 2009, Centrelink wrote to Ms Bagh again requesting further information to support her claim[5].

[4] T7

[5] T7/42

9.      On 5 November 2009, Ms Bagh’s second PPP claim was rejected, primarily due to non-provision of a profit and loss statement relating to Ms Bagh’s husband’s income from self-employment[6].  On 5 November 2009 Centrelink forwarded a further letter to Ms Bagh advising her that her second claim for PPP had been rejected and as to the reasons for this[7].

[6] T7/30

[7] T12/90

10.     Centrelink’s letter of 5 November 2009 again advised her of the consequences of not seeking review of the decision within 13 weeks[8].

[8] T12/90

11.     On 23 March 2010, Ms Bagh made a further claim for PPP[9].  On this occasion she supplied all of the financial information which had been requested, and her claim was granted with effect from 23 March 2010.

[9]  T8

12.     On 24 March 2010, Ms Bagh’s husband, Mr Uddhaba Luha, contacted Centrelink and requested that Ms Bagh’s PPP payments commence from an earlier date, as he claimed Ms Bagh had been qualified for the payment on the date she first applied for it, but had simply been unable to provide the supporting documentation[10].  As outlined above, Centrelink decided that Ms Bagh’s payments could not be backdated, and that decision was affirmed by the SSAT.

[10] T13/94

13.     Ms Bagh’s husband, Mr Luha, attended the hearing on her behalf and also gave evidence.  He pointed to a letter from his accountant contained in the T documents confirming that the accountant had undergone major surgery in 2009 which resulted in a delay in the lodgement of Mr Luha’s tax return[11].  He explained that this was the main reason why his wife had not been able to provide the information sought by Centrelink earlier, and said he considered it should be possible in these circumstances to backdate his wife’s entitlement to PPP.  He said the circumstances were beyond his and his wife’s control as his accountant had fallen ill, the accountant had all of the relevant information required for preparation of the relevant documentation, including a profit and loss statement, and he had not wanted to change accountants simply because his accountant was sick.  He explained that this was partly out of consideration for his accountant, but also because of the additional expense and inconvenience which switching accountants would have caused him. 

[11] T5/18

consideration

14.     In the circumstances outlined above, it is not difficult to understand Mr Luha and Ms Bagh’s frustration at the decision not to backdate Ms Bagh’s entitlement to PPP.  However, as outlined above, the legislation only allows for a claim to be “backdated” in certain limited circumstances.  One of these is where a person has successfully sought review of a rejection decision within 13 weeks.

15.     There is no doubt therefore that if Ms Bagh had sought review of the initial rejection of her claim within 13 weeks, and if that request for review had been successful, her claim could have been backdated to 1 July 2009.  Similarly, if she had challenged the second rejection decision on 5 November 2009 within 13 weeks, successfully, that claim could have been backdated to 12 October 2009. 

16.     In the event however, she did not formally seek review of either decision within 13 weeks of rejection.  Her second claim was made within 13 weeks of rejection of her first claim, however even if that second claim was treated as a request for review of the first rejection, the outcome of that review was not successful as Ms Bagh was not granted PPP as a result of her second claim.  The third claim was made more than 13 weeks after rejection of the second claim, and therefore event if that was treated as a request for review of the second claim, this would not allow Ms Bagh’s entitlement to be backdated to the date of the second claim.

17. Whilst Ms Bagh and Mr Luha have put forward a good explanation for their failure to provide the requested information earlier, the legislation does not confer any discretion to backdate payments in their circumstances. As explained above, regardless of the particular circumstances, s 107 only allows a claim to be backdated where a request for review has been made within 13 weeks and that request is ultimately successful. The section does not provide for any exceptions or confer any discretion to backdate a claim where a review has not been sought within 13 weeks, even for good reasons. Nor does the legislation contain any other provision which allows for Ms Bagh’s payments to be backdated.

18.     It follows that, even though Ms Bagh and Mr Luha have provided an explanation as to why they were unable to provide the requested information to Centrelink earlier, the general rule is applicable, Ms Bagh’s entitlement cannot be backdated and PPP is payable to her only from 23 March 2010.  I am therefore obliged to affirm the decision under review.

decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         ............J Coulthard...........................................
  Associate

Date of Hearing  25 January 2011
Date of Decision  28 February 2011
Advocate for the Applicant       Mr U Luha (applicant's husband)

Advocate for the Respondent   Ms L Odgers

Centrelink Advocacy Branch