Cahill and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1719

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1719

ADMINISTRATIVE APPEALS TRIBUNAL       )
  )          No   2007/0688

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAXINE CAHILL

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date             31 August 2007
Place             Sydney

Decision The decision under review is affirmed.

………[sgd]……………….

Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – date of commencement of newstart allowance – backdating newstart payments – inappropriate or incorrect claim - decision under review affirmed

LEGISLATION

Social Security Administration Act 1999 – sections 11, 13, 15, 16 and schedule 2

Social Security Act 1991 – section 593

The Guide to Social Security Law – part 8.1.1.20

REASONS FOR DECISION

31 August 2007 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1. The Applicant, Ms Cahill, seeks review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 25 January 2007, to commence payment of her newstart allowance (“NSA”) from 24 August 2006, and not an earlier date as she had requested. The decision of the SSAT affirmed a decision of an Authorised Review Officer (“ARO”) dated 13 November 2007.

BACKGROUND

1. Ms Cahill contacted Centrelink on 6 June 2006 indicating her intention to make a claim for welfare entitlements.  This was prompted by advice that she had been made redundant from her primary job. On this occasion, Ms Cahill was told that she should make a claim for parenting payment single (“PPS”).

2. On 14 June 2006, Ms Cahill again contacted Centrelink, and confirmed her intention to lodge a claim for parenting payment single (“PPS”).  This claim was refused on 12 July 2006, with the decision being affirmed by an ARO on 24 August 2006, and the SSAT on 28 September 2006.

3. Having received notification that the ARO had affirmed the original decision relating to her claim for PPS, Ms Cahill contacted Centrelink on 24 August 2006, and registered an intention to claim NSA.

4. Ms Cahill lodged her claim form for NSA with Centrelink on 28 August 2006 and was advised that the payments would be backdated to 24 August 2006 – the date she had first registered her intention to claim the allowance. Ms Cahill, however, requested that the payments be backdated to 12 July 2006, being the date that she was potentially eligible for a social security payment.

5. The decision not to backdate the NSA claim was affirmed by an ARO on 13 November 2006, and the SSAT on 25 January 2007.

ISSUE BEFORE THE TRIBUNAL

1. The issue before the Tribunal is whether the start date of Ms Cahill’s NSA can be an earlier date than 24 August 2006.

LEGISLATIVE FRAMEWORK

1. To be granted NSA, a claim must be made in accordance with section 11 of the Social Security (Administration Act) 1999 (“the Administration Act”).

1. The only way of making a claim is to lodge a written claim pursuant to sections 16(1) and (2) of the Administration Act.  Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary: section 16(4) of the Administration Act. Part 8.1.1.20 of the Guide to Social Security Law provides further guidance on how a claim for payment must be lodged.

2. A person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2 of the Administration Act. Generally the start date for payment is the day on which the claim is made: part 2 clause 3 in Schedule 2. Section 13 of the Administration Act, however, contains provisions which allow the date of contact about a claim for a social security payment to be taken as the date the claim was made, provided certain criteria is met. Pursuant to sub-section 13(1), if a person contacts Centrelink about a claim for a social security payment, is qualified on the day of contact to receive the payment, and then lodges a claim for the payment within 14 days after Centrelink is contacted, the claim is deemed to have been made on the day that Centrelink was contacted.

3. Section 15 of the Administration Act also allows claims to be backdated, but unlike section 13, applies in circumstances where an inappropriate or incorrect claim has been made and the person subsequently makes a claim for a social security payment for which he or she is qualified. Pursuant to section 15(2), a claim made by a person is an incorrect claim, if the claim is for a social security payment, and when the claim was made the person was qualified for another type of social security payment.

4. Section 593 of the Social Security Act 1991 (“the Act”) sets out the eligibility criteria for NSA, and so far as is relevant provides:

   “593  Qualification for newstart allowance

   593(1)  Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:

   (a)       the person satisfies the Secretary that:

   (i)        throughout the period the person is unemployed; or

   (ii)       the person is a CDEP Scheme participant in respect of the period….”

EVIDENCE

1. 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. 

2. Ms Cahill gave evidence and was cross-examined on behalf of the Respondent.  I also asked her questions.

3. Until June 2006, Ms Cahill was employed by the University of Sydney Cumberland Campus Student Guild (“the University”). On 5 June 2006 she was advised that her position was to be made redundant, and officially ceased employment with the University on 30 June 2006 (T9).  Her last day of work was on or around 23 June 2006, because the University gave her the “last week off.”

4. Ms Cahill contacted Centrelink on 6 June 2006 to make an appointment because she knew she was “out of a job” at the end of the month.  On this occasion, Ms Cahill made general enquires about her welfare entitlements following the termination of her employment at the University.  She knew about PPS because she had previously received that benefit.

5. Ms Cahill confirmed her claim for PPS on 14 June 2006 by lodging the required forms with Centrelink.  At this time, Ms Cahill spoke with a Centrelink representative, Mr Peter Sommerville, who advised that he was not certain whether she was entitled to receive a PPS because he required further information in relation to her termination payment from the University.  Ms Cahill submitted all of the required additional documents to Centrelink on 15 June 2006, with the exception of her separation certificate from the University. This certificate was provided to Centrelink on 29 June 2006.

6. After receiving these documents, Mr Somerville advised Ms Cahill that although she would receive the PPS, she would not be entitled to receive payment before 12 July 2006 because of an income maintenance period. Ms Cahill said that she was “very happy” to hear this news.  Although there would be a delay between her final payment from the University, and her first PPS payment, Ms Cahill said that she had been greatly relieved when told that she was entitled to receive a regular source of income.

7. Notwithstanding his earlier advice, on 10 July 2006 Mr Sommerville informed Ms Cahill that she would not be qualified to be paid PPS from 12 July 2006. Ms Cahill said that she was extremely upset by this news as she had a “family to think of” and “children to support”.

8. On this occasion, Mr Sommerville advised Ms Cahill that she could apply for NSA, and would be eligible to receive it from 12 July 2006. However, despite this advice, Ms Cahill did not apply for NSA at that time. This was because she believed, incorrectly, that if she was granted NSA she would not be eligible for PPS, and that her PPS review would be adversely affected. Given the initial advice that she had been given by Mr Sommerville, Ms Cahill still believed that she was entitled to the PPS, and immediately requested that the decision be reviewed by an ARO.  She also requested that it be processed urgently as she was not receiving any other support payments, was heavily reliant upon financial assistance from her family and was only receiving income from a casual job.

9. It took five weeks for the ARO to make a decision, causing Ms Cahill further distress and anxiety. During the review period, she contacted Centrelink on “numerous” occasions, and at one stage, “sometime in August”, was told by a Centrelink representative that if you “haven’t heard anything, chances are that you are not getting it and should apply for Newstart”.  Ms Cahill, however, didn’t take the comment by the Centrelink representative as an “official notification” of the review decision, as she was still waiting on written confirmation.  Ms Cahill said that at no stage during any of her calls to Centrelink was it clearly explained to her that she should apply for NSA, and that she believed she had been “wrongly advised” in pursuing the PPS claim.

10. Ms Cahill was finally contacted by the ARO on 24 August 2006. Ms Cahill said that she remembered the conversation with the ARO clearly because she was very angry and upset at how long the review process was taking.  During that conversation, the ARO asked why Ms Cahill thought that she was eligible for PPS. In response, Ms Cahill said that she still had dependant children and had received PPS previously.  She also said that she honestly believed that applying for NSA would be “detrimental” to her PPS application, and she thought that by lodging a NSA claim she “wouldn’t get a fair chance.”  Ms Cahill said that the ARO “bluntly” told her that she should apply for NSA because if she didn’t “apply for NSA (you) will get nothing”.

11. Immediately after that conversation, on 24 August 2006, Ms Cahill made an enquiry regarding a claim for NSA, and lodged her claim on 28 August 2006.

12. I asked Ms Cahill why she had not lodged a NSA claim whilst her PPS review process was in place.  Ms Cahill stated that despite Mr Sommerville’s advice on 10 July 2006 and the advice of the Centrelink representative “sometime in August” that she apply for NSA, she was never clearly made aware of the consequence of not claiming NSA and that at no stage were the “policies of Centrelink clearly explained”.  She had two children under 16 to support and no regular income. Because of her dire financial circumstances, Ms Cahill believed that PPS would provide better financial support than NSA, and would also provide her with the opportunity to continue her part time studies in clinical hypnosis.  For these reasons, she not want to “jeopardise” her chances to receive PPS, and wrongly believed that she would be successful through the review process.  Ms Cahill also stated that at no stage was her misguided belief, that lodging a NSA claim during the review process would be detrimental to the PPS application, corrected by any Centrelink representatives.  In fact, Ms Cahill submitted that it was Centrelink’s failure to adequately explain her options, correct her misunderstanding and correctly and clearly explain Centrelink’s policies, that resulted in her not claiming NSA until 24 August 2006.

CONSIDERATION OF EVIDENCE AND FINDINGS

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

2. To be paid a social security payment, a person must make a claim (section 11(1) of the Administration Act) and the claim must be made in a form or manner approved by the Secretary. Although Ms Cahill was potentially eligible for NSA from 12 July 2006, she did not lodge a NSA claim form with Centrelink until 28 August 2007. Section 13(1) of the Administration Act allows the Department to backdate the start date of the social security payment to the date of initial contact, provided that the person lodges a claim form within 14 days of the initial contact. As Ms Cahill made initial contact with Centrelink on 24 August 2007 registering an intention to claim NSA, and lodged the claim four days later, section 13 allowed the Department to commence her NSA from 24 August 2006.

3. However, the issue to be determined is whether the start date for NSA should be backdated to an earlier date, and in fact, whether Ms Cahill’s claim for PPS, lodged on 14 June 2006, can be considered a valid claim for NSA under section 15 of the Administration Act.

4. Section 15 of the Administration Act provides another mechanism for the backdating of certain payments under the social security system. This provision allows claims to be backdated where an inappropriate or incorrect claim was made and the person subsequently makes a claim for a social security payment for which he or she is qualified. A person is deemed to have made a claim for the other social security payment on the day on which he or she made the incorrect claim: section 15(1). Further, if a person makes a claim for an income support payment (the “initial claim”), at that time would have qualified for another income support payment (the “other payment”), and the person subsequently makes a claim for that other payment, the person may be taken to have made the later claim on the day on which the initial claim was made: section 15(4A).

5. Therefore, for section 15 of the Administration Act to operate, it is necessary to determine whether Ms Cahill was eligible for NSA at the time she made her initial claim for PPS. Section 593(1) of the Social Security Act 1991 provides that to qualify for NSA a person must, amongst other things, be unemployed. The Respondent submitted that Ms Cahill’s claim for PPS lodged on 14 June 2006 cannot be considered a valid claim for NSA pursuant to section 15 of the Administration Act. This is because Ms Cahill was employed by the University of Sydney until 30 June 2006, and therefore did not satisfy the unemployment criteria in section 593 of the Act. Therefore, when Ms Cahill made the initial claim for PPS, she was not qualified for NSA as required by section 15(4A)(b) of the Administration Act. On this basis, section 15 cannot be applied to backdate Ms Cahill’s NSA claim, as at the time the claim was made for PPS she was not qualified for NSA.

6. However, in all the circumstances described above, it appears that there was, what, at best, could be described as a “breakdown in communication” between Ms Cahill and Centrelink, causing her to wrongly believe that by lodging a claim for NSA her PPS application would be adversely affected.  She had been led to believe that she was entitled to PPS and, properly, chose to await the outcome of her application for review by the ARO.  There was a significant delay in the review process and, despite her further enquiries, it was not for several weeks that she was ultimately advised to apply for NSA instead.  No doubt these issues will be noted when Ms Cahill’s claim for Compensation for Detriment Caused by Defective Administration is considered.

DECISION

1. For the reasons stated above, the Administrative Appeals Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:  Skye Owen [sgd]
  Associate

Date of Hearing  7 August 2006         
Date of Decision  31 August 2007
Appearance for Applicant               Self-represented

Advocate for the Respondent        Mr James Larcombe