Bamford and Department of Family and Community Services

[2001] AATA 693

DECISION AND REASONS FOR DECISION [2001] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2000/1643

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      KELLY BAMFORD
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member 

Date3 August 2001         

PlaceSydney           

Decision      The Tribunal determines that the decision under review be set aside and in substitution thereof determines that:: (a) the first proper claim for youth allowance was made by the Applicant and lodged with the Respondent on 2 November 1999; and (b)    that a determination is made granting payment of youth allowance to the Applicant from 2 November 1999.       
   [sgd]  Dr J D Campbell
  Member
CATCHWORDS
Social Security – youth allowance – issue of early incomplete lodgement – incomplete documents requested and provided – later lodgement of original claim – qualification requirements – retrospective payment.
Social Security Act 1991 sections 540, 543A, 554, 555, 555A, 555B

REASONS FOR DECISION

Dr J D Campbell, Member    

1. In this matter Miss Bamford ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal Decision ("SSAT") dated 5 June 2000, which set aside the decision of a Centrelink delegate of the Department of Family and Community Services ("the Respondent") dated 8 December 1999 and in substitution therefor determined that the claim for youth allowance was lodged by the Applicant with the Respondent on 2 September 1999.  In the earlier primary decision, the Respondent determined that the Applicant was entitled to payment of youth allowance from 2 November 1999, being the date on which a completed claim form was lodged by the Applicant, as opposed to determining the Applicant's payment entitlements from on 15 September 1999 as a consequence of an earlier lodgement on 2 September 1999. This earlier decision was reviewed and affirmed by the Centrelink Manager on 8 December 1999 and by an authorised review officer on 10 January 2000.

2. A hearing was held by telephone with Ms Rodgers on 9 July 2001.  Ms Rodgers was acting on behalf of the Applicant, her daughter.  The Respondent was represented by Ms Fahey, an advocate from the Advocacy and Administration Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Exhibit No     Description    Date   
   T1-T27, pp1-73 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
    R1     Respondent's Statement of Facts and Contentions       20 February 2001  

issues

1. The relevant issue in this matter is whether the Applicant  is entitled to the payment  of youth allowance from 15 September 1999.
   legislation

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 540, 543A, 554, 555, 555A, 555B.
   background

3. The Applicant lodged a claim at for youth allowance with the Respondent on 2 November 1999, at Coffs Harbour (T3).  The Applicant signed the claim form and the date is nominated as 9 September 1999 (T3, P38).  Ms Rodgers signed the claim form with the date nominated as 23 July 1999 (T3, P35).  Documents attached to the  claim lodged by the Applicant on 2 November 1999, indicate that they had been originally sighted by Centrelink at Grafton on 2 September 1999.  Such documents include acknowledgment of birth registration of the Applicant  (T4, P40), vaccination record of the Applicant (T5, P41) and toddlers weight card for the Applicant (T7, P43).

4. Following receipt of particular information at Coffs Harbour, which included the completed form dated 2 November 1999, a notation having been made by the Applicant's mother on 29 October 1999 (T7, P43), the Respondent granted the Applicant youth allowance, to be paid from 2 November 1999, being the date of lodgement (T9).  Any earlier payment could not occur as lodgement had not occurred within 14 days of the Applicant's birthday, namely 15 September 1999 (TI0).

5. On 9 December 1999, the Applicant sought to have this matter reviewed as her mother claimed that an application was stamped before her daughter's sixteenth birthday and that the only issue outstanding at that time was the provision of further information by the Applicant (T11).   On 20 November 1999, the Applicant's mother detailed the circumstances in which she had lodged particular documents at Grafton and that further particulars of the Applicant were required, namely a birth certificate of the Applicant.  The original lodgement occurred at Grafton on 2 September 1999, with Mrs Rodgers stating that she was alerted about the absence of a claim form, when she delivered the birth certificate to Centrelink.  Further, Ms Rodgers found all the material in an unposted envelope at her home and took it to Coffs Harbour Centrelink where it was reviewed on 2 November 1999 (T12).

6. On 8 December 1999, a Centrelink Manager indicated that the claim for youth allowance was issued on 2 September 1999, with the date being stamped to indicate date of issue, and further, that upon lodgement on 2 November 1999, the date was stamped to indicate date of receipt.  The Manager indicated that the Applicant was unable to receive earlier payment of youth allowance as lodgement of the completed documentation had not occurred within 14 days of either 2 September 1999 (first contact) or 15 September 1999 ( the Applicant's birthday), (T14).  This decision was affirmed by an authorised review officer on 10 January 2000.

7. On 5 June 2000 the SSAT set aside these earlier decisions and determined that the claim was lodged on 2 September 1999 (T2).
   ms rodgers' evidence

8. Ms Rodgers told the Tribunal that she had collected the necessary youth allowance claim form from Coffs Harbour Centrelink some weeks earlier to her attending at  Grafton Centrelink  on 2 September 1999.  At Grafton Centrelink, when she attempted to lodge the youth allowance claim form for the Applicant, she was told that a birth certificate for the Applicant was required.  Ms Rodgers stated that she attempted to lodge the claim early, as she was in the process of moving house.  The material which she presented was date stamped 2 September 1999 and, together with the completed claim form was returned to her, for finalisation and return, together with the birth certificate.

9. Ms Rodgers stated that the move to Grafton at this time was a major issue and that she became concerned when payment of youth allowance did not commence.  On enquiry at the time she delivered a copy of the Applicant's birth certificate, she was concerned to find that there was no knowledge of the Applicant's claim.  Ms Rodgers then discovered the unsent claim form at home and lodged the completed claim at Coffs Harbour Centrelink on 2 November 1999.  Ms Rodgers was unable to explain  why her signature was recorded as being affixed on 23 July 1999 (T3, P35), and why the Applicant's signature was recorded as being affixed on 9 September 1999 (T3, P36, 38).

10. Ms Rodgers also indicated that when she received the SSAT decision, she believed that the decision stated that her appeal was successful. After waiting 28 days, which she believed to be the period during which the Respondent could have lodged an appeal against the decision, she purchased a replacement computer for the Applicant, believing  there would be some retrospective allowance paid.
    considerations and findings

11. In preliminary consideration, the Tribunal observes that the circumstances surrounding the initial claim form contact at Grafton on 2 September 1999, require further and particular clarification.  It is evident to the Tribunal that Ms Rodgers did attend on behalf of the Applicant and that some material was lodged on that day, namely 2 September 1999.  It is also evident to the Tribunal that, for whatever reason, Ms Rodgers left Grafton Centrelink with the claim form and other particular attachments, and with the intention of securing a copy of the Applicant's birth certificate prior to forwarding them all back to Centrelink.

12. The Tribunal acknowledges that the completed claim form and various attachments were not returned to Centrelink Coffs Harbour until 2 November 1999. The reason for the delay of return was a mistake by Ms Rodgers, when she failed to post the document at an earlier time because of household turbulence.

13. As a consequence of the Tribunal's consideration of all the evidence, the Tribunal makes the following findings of fact:

(a) Ms Rodgers on the Applicant's behalf did attend at Centrelink Grafton on 2 September 1999, and had in her possession a claim form for youth allowance for her daughter, the Applicant and a number of personal documents pertaining to identification of the Applicant;

(b) particular documents (personal identification documents) were date stamped by the Respondent and together with the claim form for youth allowance, were returned to Ms Rodgers on the understanding that they be returned, together with a copy of the Applicant's birth certificate, to Centrelink, in order that the claim be further processed;

(c)  the Applicant's sixteenth birthday was on 15 September 1999;

(d) Ms Rodgers returned the claim form and supporting documents to Centrelink Coffs Harbour on 2 November 1999;

(e) Ms Rodgers acknowledges that the delay in return was an oversight on her part;

(f)  the Applicant was granted youth allowance with date of effect being 2 November 1999; and

(g) Ms Rodgers, on behalf of the Applicant, did purchase a replacement computer as a consequence of being informed that ther appeal to the SSAT was successful, and having allowed the necessary statutory period for appeal to pass.

1. In further analysing the initial contact at Grafton Centrelink on 2 September 1999, the Tribunal does express some concern at the administrative aspects surrounding this occasion. In so stating the Tribunal does recognise the particular limitations of the evidence before it, as regards the completeness of such evidence. However, the Tribunal finds it difficult to accept why Ms Rodgers had  the completed claim form and attachments, date stamped as to sighting on 2 September 1999 returned to her by the Respondent.  This is further confused by the Centrelink Manager's letter of 8 December 1999, which advises the Applicant that a date is stamped on a youth allowance claim form on the date of issue (T14, P50).  The Tribunal is unable to unravel the circumstances existing on 2 September 1999 with any degree of certainty.  The Tribunal does, however, conclude that Ms Rodgers was given the claim form, together with personal identification documents for the Applicant, and was told to return them, together with a copy of the Applicant's birth certificate, to Centrelink.  The Tribunal notes she did this on 2 November 1999.
   statory framework

2. The following statutory framework details the legal framework against which the factual situation must be adjudged, particularly sections 540, 543A, 554, 555, 555A, 555B:

   "540 Qualification for youth allowance – general rule
   Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if, throughout the period:
   (a) the person either:

   (i) satisfies the activity test (see Subdivision B); or
   (ii) is not required to satisfy the activity test (see Subdivision C); and

   (b) the person is of youth allowance age (see Subdivision D); and
   (c) the person satisfies any requirements relating to Youth allowance Activity Agreements that apply to the person under Subdivision E; and
   (d) the person satisfies the residency requirements the apply to the person under Subdivision F.
   Note 1:   Subdivision G provides for prospective qualification for youth allowance.
   Note 2:   Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it.
   …

   543A Minimum age for youth allowance
             General
   543A(1) Subject to this section, the person has attained the minimum age for youth allowance if the person:
   (a) is at least 16 years old; or
   (b) is 15 years old and is independent.
   Note:    For independent see section 1067A.

   Persons not yet 18 years old

   543A(2) If the person is not yet 18 years old, the person is taken not to have attained the minimum age for youth allowance unless:
   (a) the person has completed the final year of secondary school, or an equivalent level of education; or
   (b) the person is undertaking full-time study; or
   (ba) the person has agreed to enter into a Youth allowance activity agreement; or
   (c) the Secretary has determined in writing that the person is exempt from the requirements of this subsection.
   …

   554 Need for a claim
             Proper claim
   554(1) A person who wants to be granted a youth allowance must make a proper claim for that allowance.
   Note 1:   For proper claim see section 554A (form), sections 554C (manner of lodgement) and section 554D (residence/presence in Australia).
   Note 2:   Because the payability of youth allowance may be affected by, for example, the provisions dealing with the circumstances in which a person's former employment ended (see paragraphs 550A(f) and (g), the person may be asked to support his or her claim for youth allowance with an end of employment statement by the former employer (see section 1311).

   Claim taken not to be made

   554(2)  For the purposes of subsection (1), if:
   (a) a claim for youth allowance is made by or on behalf of a person; and
   (b) at the time the claim is made, the claim cannot be granted because the person is not qualified for youth allowance;
   the claim is taken not to have been made.
   …

   555 Secretary to determine claim
   The Secretary must, in accordance with this Part, determine a claim for youth allowance.

   555A Grant of claim

   General rule

   555A(1) The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
   (a) the person is qualified for a youth allowance; and
   (b) the allowance is payable.
   …

   555B Date of effect of determination

   Date of effect

   555B(1) Subject to this section, a determination under section 555A takes effect on the day on which the determination is made or on any later day or earlier day that is stated in the determination."

3. The Tribunal notes that section 554(1) states that a person must make a proper claim for that allowance and that a proper claim includes the completion of an appropriate form (ss554B and 554C).

4. The Tribunal also notes that s540 of the Act defines qualification for youth allowance, and that section 554(2) details that if a claim cannot be granted because the person is not qualified for youth allowance at the time the claim is lodged, then the claim is taken not to have been made.

5. It is clear to the Tribunal that the claim lodged on 2 September 1999 was not a proper claim pursuant to section 554(2) of the Act as the Applicant failed to satisfy section 540(b), in that she failed to satisfy either sections 543(1) (a) (not yet 16 years of age) or section 543A(1)(b) (not independent). The Applicant was not 16 years of age until 15 September 1999 and as such was not qualified for youth allowance at the time the claim is said to have been lodged (2 September 1999). As a consequence, such a claim is taken as not to have been made pursuant to section 554(2) of the Act.

6. The Tribunal finds that a proper claim was lodged on 2 November 1999 pursuant to section 554(1) of the Act. At this time the Applicant was qualified for youth allowance pursuant to section 540 of the Act. A determination was made granting the Applicant's claim for youth allowance with effect from 2 November 1999, that being the date of lodgement of the proper claim.

7. As a consequence of the Tribunal's considerations and findings, the Tribunal must set aside the decision of the SSAT dated 5 June 2000, as it constitutes an error in law, in that the claim for youth allowance if lodged or deemed to have been lodged on 2 September 1999 was made at a time when the Applicant was not qualified for youth allowance. As such, pursuant to section 554(2) of the Act, the claim is taken not to have been made. The Tribunal again notes that the Applicant and her mother acted in a particular manner to purchase a replacement computer, as a consequence of being advised that the appeal to the SSAT had been successful.

8. In summary conclusion, the Tribunal finds that the Applicant has been paid her youth allowance in accordance with the Act and that any redress for any administrative error that may have occurred in this matter must rest with the Applicant making a claim for defective ddministration for the payment of an amount equal to arrears of payment from 15 September 1999 to 1 November 1999.
   determination

9. The Tribunal determines that the decision under review be set aside and in substitution thereof determines that:

(a) the first proper claim for youth allowance was made by the Applicant and lodged with the Respondent on 2 November 1999; and

(b) that a determination is made granting payment of youth allowance to the Applicant from 2 November 1999.

I certify that the  25  preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell

Signed: R. Quinn     .....................................................................................
  Associate

Date/s of Hearing   9 July 2001
Date of Decision   3 August 2001
Representative for the Applicant   Ms J Rodgers
Solicitor for the Respondent         Ms S Fahey