Bruhwiller and Department of Education, Science and Training

[2005] AATA 1144

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1144

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/908

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL BRUHWILLER

Applicant

And DEPARTMENT OF EDUCATION, SCIENCE & TRAINING

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date18 November 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – youth allowance payments – whether start date of payment is correct – date of actual lodgement of claim form – earlier date on which application is deemed to be lodged – criteria not met – no discretion – decision affirmed

Social Security (Administration) Act 1999, Part 3, Division 1; sections 13, 16, Schedule 2

REASONS FOR DECISION

18 November 2005 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review is the decision of the Social Security Appeals Tribunal (“SSAT”) dated 21 June 2005 whereby the original decision to pay Youth Allowance to Mr Michael Bruhwiller (“Michael”) from 30 March 2005, and not from an earlier date, was affirmed.

ISSUE BEFORE THE TRIBUNAL

2.      The issues before the Tribunal is:

(a)whether the decision to pay Youth Allowance to Michael from 30 March 2005 and not from an earlier date is correct

LEGISLATION

3. The dispute concerns the date on which the claim for Michael’s Youth Allowance was made. The relevant legislation is sections 13, 16 and Schedule 2 of the Social Security (Administration) Act 1999 (“the Act”).

4. To be granted Youth Allowance a claim must be made in accordance with Part 3, Division 1 of the Act. The only way of making a claim is to lodge a written claim (section 16(1) & (2)).  Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary for the purpose (section 16(4)). 

5. A person’s start day in relation to a social security payment is the day worked out in accordance with schedule 2 of the Act. Generally the start date for payment is the day on which the claim is made. Section 13 of the Act, however, contains provisions which allow a claim to be deemed to have been made when an earlier contact has been made in relation to the type of benefit.  The provision can only apply where certain specific criteria have been met (section 13(1)(d)).

THE HEARING

6.      A hearing was held on 15 November 2005.  Michael was represented by his father, Mr Mark Bruhwiller, who also gave evidence.  Centrelink was represented by Mr John Kenny, an advocate from the Centrelink Service Recovery Team.

7.      I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.

BACKGROUND

8.      There was no dispute in relation to the following facts:

·On 10 January 2005, Michael’s mother contacted Centrelink’s call centre and enquired about Youth Allowance Payments available to her son (T3, 8-9).  On the same day, as a result of this contact, Centrelink sent a Youth Allowance Claim package to Michael, at his mother’s address, with a letter advising him to return the completed form by 24 January 2005.  ( T5,11-13)

·On 30 March 2005, Michael’s father attended the Centrelink Gosford Branch and lodged a Youth Allowance form on behalf of his son.  (T6, 14; T7,15-50)

·On 4 April 2005, Centrelink sent a letter to Michael, advising that Youth Allowance Payments would be made with effect from 30 March 2005.  (T9, 52-54)

·On 7 April 2005, Michael’s father sought review of the decision to pay Youth Allowance Payments from 30 March 2005 on his behalf.  (T11, 58-60). 

·Reviews by the Original Decision Maker, the Authorised Review Officer and the SSAT affirmed the decision to pay Youth Allowance from 30 March 2005 and not from an earlier date.  (T2, 3-7)

CONSIDERATION OF THE EVIDENCE

9.      In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

10.     Michael’s father told me that, on 13 January 2005, he lost his job unexpectedly.  On the same day he went to Centrelink and “put myself in their hands”.  He previously had no contact with Centrelink (although he had been in receipt of Family Tax Benefit) and had no idea as to his family’s entitlements.  He was bewildered by the forms and the information being sought from him.  Somehow on that day or shortly thereafter, it came up in discussions with Centrelink that Michael had a part time job at Hoyts that paid $80-$100 a week during school term.  The Centrelink officer considered that Michael may be eligible for Youth Allowance payments.  Mr Bruhwiller was told by the Centrelink officer that he needed to produce Michael’s pay slips for eight weeks.  Mr Bruhwiller conceded that it was his interpretation that it was for eight weeks in the future, and that all he was told was “eight weeks’” 

11.     In cross-examination his attention was invited to the Youth Allowance Claim form completed by him (and apparently a Centrelink officer) wherein it was stated:

“You will need to attach your two most recent payslip(s) from your employer(s)”

12.     Michael’s father conceded that he did not read the form, nor did he recall seeing the letter of 10 January 2005 that had been sent to Michael at his mother’s address.  He said he had a lot of confusing forms to complete in respect of his own claims and that Michael certainly would not have read the form or the letter as “he is only a kid”.  He thought the Centrelink officer was ‘new’ but he had relied on his advice nonetheless.  Mr Bruhwiller said that he did not think the advice was wrong, just that it was incomplete.  He said he had relied on his own understanding of the advice given because he was not familiar with Centrelink requirements. 

13.     I heard evidence relating to a Health Care Card issued to Mr Bruhwiller on 15 February 2005 in respect of his other dependents; Michael was omitted from the card for reasons which are unclear.  One plausible explanation is that Michael was not included as he would be given his own card when his Youth Allowance application was processed.  It should be noted that in the health care card section of the Youth Allowance claim form it is very clear that it is the last eight weeks of pay slips that are required.  (T7,  34) 

14.     It should be noted too that the evidence was that Michael would throw away his payslips on receipt.  Therefore, in any event, it would not have been possible to immediately produce Michael’s last eight payslips on application as he would not have had them in his possession at the time Mr Bruhwiller first described Michael’s entitlement to Youth Allowance.  

15.     Although Michael’s claim for Youth Allowance was received by Centrelink on 30 March 2005, Mr Bruhwiller argues, on behalf of his son, that the claim should be deemed to have been made on 10 January 2005, pursuant to section 13 of the Admin Act, as earlier contact had been made on this date. In order for the contact on 10 January 2005 to be considered ‘earlier contact’ pursuant to section 13, certain specific criteria must be met (section 13(1)(d)):

·Contact has to be made with Centrelink in relation to a claim by or on behalf of a person,

·The applicant has to be qualified for the payment on the day of making the contact,

·Centrelink must send written acknowledgment of the contact and

·The claim must be lodged within 14 days after the contact. (The period can be further extended if the claimant was suffering from a medical condition which affected the ability to lodge the claim (section 13(2)(e)) or if the person was the carer of someone suffering from a medical condition which affected the claimant from being able to lodge the claim). 

16.     On both 10 and 13 January 2005, Michael met the first three essential criteria for an early start date.

17.     However, Michael’s Youth Allowance claim form was only received on 30 March 2005, which is more than the allowed 14 days (T7, 15-50).  He therefore is unable to meet all the essential criteria for payment at the earlier start date, and his Youth Allowance can only be paid from the date of lodgement ie 30 March 2005.  There is no discretion in this regard.

18.     Notwithstanding the decision I must make, I accept that Michael’s father (and perhaps even Michael himself) has found his dealings with Centrelink to be bewildering (“a nightmare”) and that Centrelink’s requirements have often seemed baffling.

DECISION

19.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis
  Associate

Date of Decision  18 November 2005
Date of Hearing  15 November 2005
Representative for Applicant     Mr Mark Bruhwiller
Advocate of Respondent:        Mr John Kenny