Castleman and Secretary, Department of Family and Community Servi Ces

[2004] AATA 199

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/487

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HARVEY WILLIAM DAVID CASTLEMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date27 February 2004

PlaceSydney

Decision The decision under review is affirmed.

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

Ms S M Bullock   Senior Member

CATCHWORDS    

SOCIAL SECURITY - Newstart Allowance - Written Claim Form

LEGISLATION 

Social Security (Administration) Act 1999, ss 11, 16, 36, 37

AUTHORITIES 

Re Anderson and Director-General of Social Security (1984) 5 ALN 491

Re Formosa and Department of Social Security (AAT 4086, 2 December 1987)

Formosa and Another v Secretary, Department of Social Security (1988) 46 FCR 117

Re Redpath and Department of Family and Community Services [2000] AATA 689

Re Murphy and Repatriation Commission (1996) 40 ALD 782

Re Marsden and Repatriation Commission (AAT 7596, 18 December 1991)

Re Castleman and Department of Family and Community Services [2002] AATA 171

REASONS FOR DECISION

27 February 2004       Ms S M Bullock, Senior Member                 

1. Mr Castleman, the Applicant, wishes to have a Newstart Allowance paid to him from 19 June 2001 (T1, p1). Centrelink did not pay a Newstart Allowance from that date because, it contends, Mr Castleman did not complete and return certain documents including a claim form, which had been given to him when he attended an interview with a Centrelink Officer, Patrick, on 21 June 2001 at the Bankstown Centrelink Office. Mr Castleman requested a review of the decision not to pay him a Newstart Allowance and on 19 April 2002, an Authorised Review Officer (“ARO”) affirmed the decision, which was also subsequently affirmed by the Social Security Appeals Tribunal (“SSAT”) on 21 February 2003. The SSAT found that on 21 June 2001 (T2, p3), Mr Castleman was provided by Centrelink with a number of forms to sign including a claim form for Newstart Allowance and he did not sign and return the claim forms to Centrelink as required. The SSAT determined that Mr Castleman could not rely on his having made a verbal claim for Newstart Allowance and could not be paid Newstart Allowance from 20 June 2001 (T2, p7). Furthermore, the SSAT found that this was not permitted by subsection 16(1)(a), subsection 16(2), subsection 16(4) and subsection 16(7) of the Social Security (Administration) Act 1999 (“the Administration Act”).

2. A telephone hearing was held in Sydney on 22 August 2003, resuming on 10 September 2003 with final written submissions received from Mr Castleman on 9 October 2003. Mr Castleman represented himself at hearing. The Respondent, the Secretary, Department of Family and Community Services, ("the Department"), was represented by Mr J Kenny, Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal 1975 ("T-Documents", T1-T27).  Additional documents taken into evidence as exhibits are listed in Schedule 1 to this decision.

issues

3. The issues in this matter are whether or not in accordance with the Administration Act, Mr Castleman completed in writing a claim form for Newstart Allowance allowing him to be paid Newstart Allowance from 20 June 2001.

legislation

4. A determination in this matter requires consideration of the provisions of the Administration Act. The relevant legislative provisions are contained in Schedule 2 to this decision.

evidence and submissions of mr harvey william david castleman

5.      Mr Castleman stated that on 20 June 2001, he attended the Centrelink Office at Lakemba with the intention of claiming a Newstart Allowance. He was interviewed by a female Officer who asked Mr Castleman various questions and Mr Castleman was provided with a number of forms. The next day, 21 June 2001, Mr Castleman attended a pre-arranged appointment at the Bankstown Centrelink Office. He was on time, but the interviewing Officer, Patrick, was 15 minutes late. Mr Castleman told the Tribunal that that this agitated him and aggravated his back condition.

6.      At the interview, Mr Castleman was shown a number of forms in relation to claiming a Newstart Allowance and certain information was discussed, and it seems, previous claim information brought up on a Centrelink computer screen. Mr Castleman told the Tribunal that he saw that some information in the documents displayed was incorrect. In these circumstances, he was concerned that he had no way of checking in a short time whether the information was false or true. Mr Castleman did not want to be pressured into signing a form which contained false information and being unable to check information. Mr Castleman stated that he did not have sufficient time to deal with the complexity of the form nor sign it, attesting to its truthfulness. His initial concerns, for example, included the inaccuracy of details about his rent and the type of car he owned. Mr Castleman acknowledged that his  handwritten amendments or corrections to the claim form printed on 21 June 2001, were never made available to Centrelink nor the SSAT (T17, p44).  Mr Castleman was also concerned about acknowledging in the claim form that he was temporarily unfit. He did not wish to jeopardise his opportunity or potential for undertaking work.  It was too late in the day to undertake such an exercise and accordingly, Mr Castleman took the form(s) home so that he could calmly and in a considered manner, check and complete the form(s). Mr Castleman stated that it was reasonable to take this approach and it was not objected to by the interviewing Officer, Patrick.

7.      Mr Castleman told the Tribunal that he did not refuse any request for information made by Patrick and merely gave notice during the interview on 21 June 2001, of his reluctance to provide certain information before it was checked. No responsibility whatsoever could be placed on Mr Castleman, he submitted, for incomplete information. Furthermore, Mr Castleman submitted that the interviewer deliberately ignored a statement in writing of his medical condition and insisted on his commitment to an improper, excessive job search load. Mr Castleman rejected any suggestion that he could have been more forceful at interview. He noted that a person sufficiently desperate to seek a welfare payment from Centrelink, does not want to be refused payment. In his case, Mr Castleman was seeking to the best of his ability not to alienate Patrick. For that same reason, he would not approach Centrelink after refusal of a claim, if advice of refusal had been given. 

8.      Mr Castleman explained that there was also some difficulty in completing the Newstart Allowance claim forms because he was registered with an another employment agency, “Employment National” at Punchbowl. He had phoned the Employment Agent on 18 June 2001, informing her that he was unemployed again. The agent later phoned Mr Castleman and provided him with the names of a number of prospective employers. Mr Castleman told Patrick at Centrelink that he was registered with another agency but did not ask if this was all right for regulation purposes. Mr Castleman was continually in contact with the other agent between 18 June until the end of July 2001. He then had to leave Sydney, he stated, travelling to Port Macquarie for four weeks to live with his brother. Mr Castleman stated he did not discuss with the employment agent, the need to obtain a medical certificate in relation to his health at that time.

9.      Mr Castleman was also concerned about the “Preparing for Work Agreement” with Centrelink (“the Activity Agreement”) requirement and noted that there was inconsistency between documents requiring him to attend either ten employer contacts every two weeks (T17, p44) or a lesser amount of four job search contacts each fortnight (T19, p50).

10.     Mr Castleman explained to the Tribunal his circumstances in June 2001.  He was in considerable pain with his back and his son was living with him, a situation which presented some difficulties for Mr Castleman culminating in Mr Castleman asking his son to leave his home.

11.     Mr Castleman acknowledged that on about 26 June 2001, he received a telephone call from Patrick, from Centrelink, asking him to complete and lodge the Newstart Allowance claim form, although there is no official record of that conversation. Mr Castleman stated that this conversation was very short as he was in considerable pain.  He did not explain to Patrick any of the difficulties he was having with the form. Nor did Mr Castleman request that someone assist him in completing the form or explaining his health condition.

12.     On 1 July 2001, Mr Castleman wrote to Centrelink (T21), in which he noted a number of difficulties he had in relation to the Newstart Allowance claim documents and indicated that he was "Unable to sign documents…" for the reasons noted. Mr Castleman then received a letter from Centrelink on or about 4 July 2001 (T22), stating that if the documents were not returned by 10 July 2001, then Mr Castleman's "claim" would be treated as "rejected" due to his failure to return the requested documents. Mr Castleman contended that the use of the word "claim" indicated that there was a claim made on 21 June 2001, and accordingly, this supported his argument that he should be paid Newstart Allowance from that date.

13.     Mr Castleman told the Tribunal that he had received advice from Centrelink that he should attend an “Employment Services Information Seminar” (a “Job Seeking Information Seminar”) on 26 June 2001 (T20) and that the letter of advice referred to his "claim".. The Tribunal does not have a copy of the letter of advice, but the notice of the Job Seeking Information Seminar indicated that “payments” may stop if Mr Castleman did not attend the seminar. Again, Mr Castleman contended that the wording of the notice about the seminar indicated that there was a claim accepted by Centrelink. Furthermore, Mr Castleman was issued with a Concession Card by Centrelink. This also indicated that he had a valid claim, Mr Castleman submitted, as one could not be provided with a Concession Card unless there was a valid claim in existence which had been accepted by Centrelink. Centrelink was certainly acting as if there was a valid claim from Mr Castleman for Newstart Allowance, he concluded. The fact that Mr Castleman had the Concession Card cancelled in early July when it was recognised by Centrelink that a mistake had been made, did not, in Mr Castleman's view, detract from his argument that a valid claim existed. It is Mr Castleman's contention therefore that he satisfied section 11 and subsection 16(7) of the Administration Act. Mr Castleman submitted that he was not receiving any other social security benefit in June 2001, therefore he must have made a claim for a Newstart Allowance as the relevant benefit.

14.     In relation to Mr Castleman's request on 9 February 2002 (T10), for review of Centrelink’s June 2001 decision not to pay a Newstart Allowance, this was the decision which rejected his "claim" rather than the decision reviewed by the ARO to deny payment of Newstart Allowance, Mr Castleman contended.  The ARO in his decision refers to information which is not available in Centrelink records, of Mr Castleman's contacts in relation to Newstart Allowance and a record of the ARO's telephone conversation with Mr Castleman (T14, p39), Mr Castleman noted. In relation to the statement in the 11 pages of forms provided to Mr Castleman by Patrick, in which it refers to the negotiation of the Activity Agreement, there was no such negotiation, Mr Castleman contended.  He was just told he had to do what was printed in the document in terms of employer contact. Mr Castleman stated he did not agree to this. Furthermore, Patrick at no stage advised Mr Castleman of the decision to reject Newstart Allowance.  It was only when undertaking an hearing in another matter before the Tribunal in 2002, that Mr Castleman became aware that there was no claim for Newstart Allowance and therefore payment was rejected. The validity of his Newstart Allowance claim was first disputed, to Mr Castleman’s knowledge, in April 2002. Thus, prior to that time, without knowledge, Mr Castleman could not have taken remedial action, even if lawful action was available.  It was Mr Castleman’s belief that his Newstart Allowance had been accepted.  Mr Castleman agreed however that he did not follow-up the Newstart Allowance issue after July 2001 until February 2002.

15.     Mr Castleman referred the Tribunal to a previous Tribunal decision by Deputy President Handley, Re Castleman and Department of Family and Community Services [2002] AATA 171, which noted Mr Castleman’s illness in 1998. Because of this decision and also a previous claim for Newstart Allowance in 1997, Mr Castleman submitted that Centrelink was aware of his health issues and therefore should have been aware of his permanent impairment, thus not requiring him to submit any further medical certification in relation to his June 2001 intention to claim Newstart Allowance. He noted that over the years, despite his health problems, he has been able to work for the majority of time because of medication, rest and exercise. Mr Castleman contended that he had provided full disclosure in answers to questions at the previous Tribunal and also under cross-examination. He asserted that Centrelink chose to merge the answers to two medical questions asked in 1998 into one negative response to the existence of a medical condition. Mr Castleman submitted that the history of symptoms with the objective evidence of radiographic scans, supported the existence of his health problems. Thus, in 2001, Mr Castleman submitted that his incapacity was known by Centrelink to exist from notes in addition to his advice that he could not attend a Job Seeking Information Seminar.. He noted, "Hence whilst the certificate being a special purpose standard certificate Centrelink form does not relate specifically to 2001, ability to draw conclusions is available".  The previous disclosure of Mr Castleman's permanent spinal impairment, he submitted, put Centrelink on notice for the future. Centrelink’s failure to ask about the medical condition at the time of the 2001 intention to claim and ignoring previous written advice of impairment, Mr Castleman submitted was negligent at least and precluded fulfilment of the responsibilities under subsection 16(4) of the Administration Act.

16.     In relation to Mr Kenny's statement that each Newstart Allowance claim stands on its own, Mr Castleman submitted that this was not strictly true, asserting that prior information "may" be relevant and can be used by Centrelink. Mr Castleman stated that he was not informed that he had to lodge a medical certificate and therefore did not refuse.  He merely inferred or presumed that information previously provided by him to Centrelink would be utilised, reiterating his reluctance to provide further medical information because he did not want it to jeopardise his job seeking opportunities.

17. Mr Castleman stated that in relation to the ARO's letter to him of 19 April 2002 (T14), this decision to deny him payment of Newstart Allowance is not a decision under the Administration Act. Mr Castleman then referred to a number of improper actions by Officers of the Respondent. In this regard, Mr Castleman noted that an improper action was the provision of a Concession Card to him and the requirement that he attend a Job Seeker Information Seminar that presumed he had made a claim for Newstart Allowance. In terms of the issue of him having a medical condition, Mr Castleman further stated that no one advised him he needed medical information. He also stated that the Employment Separation Certificate ("SU1") was not required at the Bankstown interview and he did not know of a requirement for it, being surprised when in receipt of the Department's computer print-out of 7 February 2002 indicating he had failed to provide the SU1 (T8).

18.     Mr Castleman stated that his case is not dissimilar to that in Re Anderson  and Director-General of Social Security (1984) 5 ALN 491, which related to the use of an approved form for which Departmental Officers failed to notify of a perceived need to formalize the application process. While the principles of Re Anderson and Director-General of Social Security (supra) are helpful, Mr Castleman submitted that his case had some differences in that there are documents at T9 and T21, indicating his claim and information provided orally. Mr Castleman is not dependent solely at subsection 16(1)(a) of the Administration Act, he stated, but also relies on subsection 16(1)(b) of the Administration Act. Mr Castleman emphasised that Centrelink’s actions indicated that Centrelink Officers interpreted the facts, concluding that a claim existed. Thus the issue of a Concession Card could only occur when a person had lodged a valid claim. Mr Kenny's assertion that the issue of Mr Castleman’s Concession Card was not pursuant to a valid claim, but arose out of a mistake in automatic programming, was not accepted by Mr Castleman as valid. There was a Centrelink decision required to initiate the action to provide the card, Mr Castleman contended. Mr Castleman disputed that the issue of the concession card was a mistake, submitting that the concession card was validly issued pursuant to his valid Newstart Allowance claim. Furthermore, Mr Castleman reasserted his position that a valid claim also authorised the notification of the requirement to attend the Job Seeker Information Seminar. Mr Castleman’s advice to Centrelink about his inability to attend the seminar because of his incapacity, was accepted. Mr Castleman concluded that it is difficult to accept that any of Centrelink’s actions were mistakes. In particular, Mr Castleman found it difficult to accept that Patrick, charged with determining the validity of the claim, also issued by mistake, a hand-written requirement for attendance at a Job Seeker Information Seminar for which there was a pre-requisite of a valid claim. The action to remedy the improper issue of the concession card coincidentally occurred, Mr Castleman noted, on 10 July 2001, the same date as the "improper decision to cancel my claim". That decision, Mr Castleman submitted, is improper as on 10 July 2001, if his claim lacked validity under sections 11 or 16 of the Administration Act, he had continuing rights to lodge a claim form for a further nine weeks until 19 September 2001 (T9, p18), under subsection 11(1) of the Administration Act.

19.     Mr Castleman asserted that the existence of a claim was found in more than five separate actions of Centrelink and supported by the records specifically acknowledging the existence of a claim.  Mr Kenny's assertion that there was no claim rested on considering Centrelink’s storage and transmission methods, Mr Castleman's failure to sign and his failure to deliver documents in accordance with some "…unknown and unpublicized delivery mechanism, and a failure to accord to the whims of Centrelink”, Mr Castleman submitted (Exhibit A2, paragraph 15).

20.     The Tribunal was referred by Mr Castleman to Re Marsden and Repatriation Commission (AAT 7596, 18 December 1991) and Re Murphy and Repatriation Commission (1996) 40 ALD 782. In the latter case, there was acknowledgment of the ability to lodge a claim by facsimile. Mr Castleman submitted that in his circumstances a claim on a Centrelink computer screen, as was the case with his Newstart Allowance claim, is capable of being read and is in writing. Simply because it was in electronic format did not preclude it being a claim in writing, Mr Castleman contended.

21.     In Re Formosa and Department of Social Security (AAT 4086, 2 December 1987) Mr Castleman submitted that the decision in that matter indicated that there is no requirement for a signature under the Act and asserted that all information can be and was given orally including his declarations.  Furthermore, Mr Castleman noted that he lodged a subsequent claim for Newstart Allowance in February 2002, orally. He made several declarations orally in the normal course of dealing with Centrelink and all of them have been accepted.  From Mr Castleman's perspective, an inappropriate decision by Centrelink to merge or print claim data was not his responsibility. He suffered through just that type of inappropriate merging in the record of his disability. In the original hardcopy application for a Newstart Allowance he had made some years ago, he had advised he had a permanent disability, but still, Centrelink managed through their merging, to put the Bankstown interviewer on notice in June 2001, that there was no disability. Mr Castleman was aware that the February 2002 sprite computer print-outs showed the record had been updated and the documents handed to him proved that Centrelink had demanded that he sign documents they knew contained false information.

22.     In Re Redpath and Department of Family and Community Services [2000] AATA 689, that case related to a telephone call in relation to a claim and set down the principle that a claim must assert a right to something and that the substance of the demand must be brought home to the person receiving the claim. These conditions, Mr Castleman submitted, were clearly met in his case. Accordingly, Mr Castleman submitted that once he orally delivered information to the Centrelink Officer, Patrick, then the Newstart Allowance claim was lodged. On the print-out on the first occasion, Mr Castleman asserted that his Newstart Allowance claim was in the hands of the Bankstown interviewer. When it was handed back, it was again in the hands of the interviewer. By oral delivery to Patrick of information, the claim had arrived in the office to the appropriate person as required by the legislation, Mr Castleman contended. There was thus a demonstrated clear intention to provide and receive the Newstart Allowance claim information by both parties. Mr Castleman submitted that it is common practice with Centrelink to receive information and declarations orally, without the need to complete the written claim specifically noted on the cover of claim forms.

23.     In conclusion, Mr Castleman submitted that Mr Kenny showed "no legislative reference requiring signature in any situation" (Exhibit A3, paragraph 20) noting that subsection 16(1)(b) of the Administration Act would allow an eligible comatose person to claim payment with no requirement to sign. The only requirement is that there is a person willing to accept "culpability" for information determining eligibility in the absence of identified person personally providing information (Exhibit A3, paragraph 21). 

respondent's submissions

24. Mr Kenny submitted that subsection 11(1) of the Administration Act provides that a person who wishes to be granted a social security benefit must make a claim for the benefit in accordance with Division 1 of Part 3 of the Act. Subsection 16(1) of the Administration Act provides that a person makes a claim for a social security payment by lodging a written claim in accordance with a form approved by the Secretary (subsection 16(2) of the Administration Act) by delivery to a person performing duties and at a place approved by the Secretary in accordance with subsection 16(4) of the Administration Act.

25.     Referring to Re Anderson and Director-General of Social Security (supra), Mr Kenny noted that that was a case in which a claim letter was accepted in the absence of a claim in the approved form and there was evidence as to whether any particular form of claim had been approved. Mr Kenny distinguished this case to Mr Castleman’s situation, as Mr Castleman had made no written claim in any form lodged with Centrelink.

26.     Mr Kenny submitted that in relation to Mr Castleman's health, the medical certificate dated 25 February 2002, meant that a medical practitioner believed that in February 2002, from the history given by the Applicant of his symptoms, that Mr Castleman then had a temporary incapacity for work.  The medical certificate made no reference to June 2001. Mr Kenny contended that the acquisition of a permanent impairment does not thereafter, of itself, imply incapacity for work, whether permanent or temporary, at any subsequent time. The fact of there being temporary incapacity for work at a particular time does not necessarily imply temporary incapacity at an earlier point in time. If Mr Castleman wanted to make a claim based on a medical condition that prevented him from completing a claim, Mr Castleman did indeed have until 19 September 2001, to do so. The point is, Mr Kenny submitted, that Mr Castleman did not do so.  Furthermore, it did not follow that a permanent medical condition disclosed in 1998 resulted in a temporary incapacity for work in 2001. In this regard, Mr Kenny noted that the 2001 data collection stands alone and there is no evidence that any account was taken of medical evidence from 1998, to which the local office did not have access, and no reason to think that account should have been so taken. The data required in 2001 related to Mr Castleman's circumstances in 2001, not to any earlier period. It remained open to Mr Castleman, if he believed that he was incapacitated for work in 2001, to provide concurrent medical evidence, as he finally did in February 2002, to justify either total exemption from the activity test or a moderation of the job search requirements. Mr Kenny submitted that is abundantly clear from Mr Castleman's comments at paragraph 34 of his submissions (Exhibit A2), that he had his own reasons for not making a significant issue of his incapacity at the time.  Mr Kenny noted Mr Castleman's reluctance to supply medical information concerning incapacity was still evident in February 2002. Mr Kenny also noted that documents relating to events in mid 2001 were not relevant to the matter heard by Deputy President Handley, but were provided to Mr Castleman at that hearing because he had requested them.

27.     Mr Kenny conceded that it was a mistake for Centrelink to issue a Concession Card to someone who was not receiving Newstart Allowance.  There was also no basis for Mr Castleman to attend the Job Seeker Information Seminar and there could be no rejection of the Activity Agreement by Centrelink because there was no valid agreement. There was in fact no claim for Newstart Allowance to cancel, Mr Kenny submitted, despite the mistakes of Centrelink, referring the Tribunal to T7, p16.

28.     In relation to the Newstart Allowance claim form, Mr Kenny submitted that contrary to Mr Castleman’s assertions, he did not make a claim by any electronic means.  The form of claim required in this case was a written claim, authenticated by the Applicant and delivered to Centrelink. Mr Castleman did not authenticate any claim form, nor transmit any such form to Centrelink by any means whatsoever. Mr Kenny submitted that the electronic "sprite" record of Mr Castleman's interview on 21 June 2001, was not a claim in writing. The provision of oral information to a Centrelink Officer for the purposes of data entry does not amount to making a written claim. Mr Kenny submitted that the resulting record is, at best, a pro forma for a claim, with draft answers and requiring checking by the claimant, authentication by the Applicant’s signature and delivery to a Centrelink Office in order to become a claim.  Beyond the instance after the data entry, the record is not an archive of the particular forms issued to Mr Castleman, as not only are the forms liable to revision, as was Mr Castleman’s intention by taking away the forms to complete, but a customer's personal data are liable to be updated or corrected in the normal course of administration.  Accordingly, subsequent printing may well result in a merging of previous and subsequent data into a later form of the claim or other document as occurred in February 2002.

29.     In the cases of Re Formosa and Department of Social Security (supra) and Re Redpath and Department of Family and Community Services (supra), they are both inconsistent with oral claims, Mr Kenny submitted. The Full Federal Court decision in Formosa and Another v Secretary, Department of Social Security (1988) 46 FCR 117 does not provide any authority, Mr Kenny contended, for the proposition that there is no requirement under the Administration Act for a signature. Mr Kenny submitted that Mr Castleman had misunderstood and misquoted the commentary. The Tribunal in its decision in Re Formosa and Department of Social Security (supra) made an obiter remark to the effect that there is no requirement that the application has to be signed by the person on whose behalf it is made. In that case, Mr Kenny noted, Mrs Formosa was unsuccessfully attempting to have an earlier sickness benefit claim by her husband treated as an Age Pension claim by herself on the basis that an earlier claim was an inappropriate claim made on her behalf. Mr Kenny further submitted that Mr Castleman could have authorised someone else to sign a claim form on his behalf if he had so wished. In general, Mr Kenny submitted, a person whose incapacity prevents him or her from signing a claim form, may need the assistance of another person to make a claim. In an extreme case, one can readily imagine that a comatose person may need to claim through a family member, friend or social worker having the implied authority to act on his or her behalf.

30.     Mr Kenny in his written submissions (Exhibit R3, paragraph 13) noted that what Mr Castleman called "the common practice of Centrelink to receive… declarations orally … without the need to complete the written claim" is a practice which is unknown to Mr Kenny and does not describe the intention to claim procedures. Furthermore, Mr Kenny submitted that claim requirements are totally different from procedures for accepting and recording information regarding changes of circumstances, which are governed by different legislative provisions. Even in that situation, Centrelink may well require that forms must be issued and completed.

31.     In relation to the claim for Newstart Allowance made by Mr Castleman on 25 February 2002, that was a lengthy claim signed by the Applicant with the assistance of Departmental Officers who visited Mr Castleman at home. That matter is not before the Tribunal.

32.     In conclusion, Mr Kenny noted that Mr Castleman having been given a pro forma written claim for social security payment in the pre-approved form, did not sign it nor lodge it with Centrelink at any time in the period commencing 20 June 2001 and ending in late February 2002, when Mr Castleman contacted a Centrelink Officer on 20 February 2002, to access assistance and was shortly thereafter assisted to make an effective Newstart Allowance claim. Accordingly, Mr Kenny contended that Mr Castleman cannot be paid a social security payment for the seven months commencing on 20 June 2001. Notwithstanding the language of “rejection” at T8 and the word “claim” used at T22, there was no claim in June 2001 to determine under subsections 36(1) and 37(2) of the Administration Act. In all of those circumstances, the decision under review should be affirmed by the Tribunal, Mr Kenny submitted.

findings

33.     The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law.

34.     I find that Mr Castleman provided evidence to the best of his ability. He was forthright and I consider him to be a credible witness.

35.     Mr Castleman wishes to have Newstart Allowance paid to him from 19 June 2001 (T1, p1), believing that he made a valid claim at that time.  If indeed I were to find that a valid claim had been made in June 2001, the earliest date that the Newstart Allowance claim could be asserted is 20 June 2001, which was the date Mr Castleman made contact with the Lakemba Centrelink Office (T9, p18).

36. In my view, the legislation is quite clear in section 11 of the Act, stating that a person can be granted the social security payment or concession card if the claim is made in accordance with Division 1 of Part 3 of the Administration Act. Specifically, section 16 and its various subsections, provide that a person makes a claim for a social security payment by lodging a written claim as required by subsection 16(1) of the Administration Act in accordance with a form approved by the Secretary as required by subsection 16(2) of the Administration Act and delivered to a person apparently performing duties at a place approved by the Secretary [subsection 16(4) of the Administration Act]. Mr Castleman had attended a Centrelink Office on 20 June 2001, at Lakemba and subsequently attended the Bankstown Centrelink Office where he had an interview with Patrick, with the intention of making a claim for Newstart Allowance. It is acknowledged that Mr Castleman does not like attending Centrelink offices and that the experience for him is traumatic, causing him agitation, anxiety and aggravation of his permanent back condition. The Centrelink Officer, Patrick, on 21 June 2001 was approximately 15 minutes late and this caused Mr Castleman’s anxiety to heighten. At the interview with Patrick, there were a number of documents to be completed, it would seem approximately 12 pages in all, requiring various pieces of information in addition to a declaration and authentication to be provided by Mr Castleman. Information had to be completed accurately in writing and on the approved forms, which were provided to Mr Castleman. Mr Castleman's current circumstances had to be reflected in those documents. It was not a situation in which information relevant to Mr Castleman’s 1997 Newstart Allowance claim could be inserted and similarly, information from previous health records and medical information provided either to Centrelink in the past or to a previous Tribunal could not, without verification as to its relevance in June 2001, be inserted into the claim form. Such historical information may have informed or prompted the interviewer and the Applicant in the process of recording relevant and up to date information, but would not have been able to replace the new information. It would seem that previous information recorded on the Centrelink screen might have formed the basis for preparing a current Newstart Allowance claim form. Clearly, as indicated by Mr Castleman's handwritten notation on the printed forms dated 21 June 2001 (T17), the information contained therein was incorrect, out of date and incomplete.

37.     Understandably, the completion of such forms would be daunting for anyone, let alone someone in Mr Castleman's circumstances who was anxious at being in the Centrelink Office and noting his statements to the Tribunal indicating his dislike of such experiences.  It is similarly understandable and reasonable then that Mr Castleman decided to take the forms away to reflect upon them and to ensure that he could calmly complete the forms with accurate information.  This approach is considered by the Tribunal to be appropriate and certainly it would seem that the interviewing Officer, Patrick, was happy for this to occur.

38.     The Tribunal finds that while there was a discussion in the interview with Patrick, this does not negate Mr Castleman's responsibility to complete the claim form and sign it as he had done, for example, in 1997 and subsequently in February 2002. It was not for Patrick to unilaterally complete the forms for Mr Castleman or to presume information including medical incapacity from previous years without verification as to Mr Castleman's health at the time of preparing a new claim. Thus, while there was a discussion with Patrick, Mr Castleman was unable to escape the requirement that a claim must be made in writing.  On my reading of the legislation, Mr Castleman did not make a claim at his interview on 21 June 2001. It is true and the Tribunal is well experienced in such matters, that information may from time to time be provided orally to Centrelink to update a customer's circumstances. Those circumstances are however different to those of Mr Castleman's in that he was initiating a claim in order for him to receive income security from Centrelink. Furthermore, even if it was permissible under the Act to make an oral claim, Mr Castleman had not in my view made an oral claim because the information was incomplete, requiring correction and no declaration was made.

39.     The Centrelink Officer quite properly attempted to follow up on his interview with Mr Castleman to remind him to return the completed documents. He did so on two occasions firstly, by telephoning Mr Castleman and secondly by writing a brief note to him that if he did not submit information by 10 July 2001, then the claim would not proceed. It is convenient now to discuss the issue of the mistakes made by Centrelink and of its use of the word "claim". It is clear and conceded by the Respondent that Mr Castleman was incorrectly issued with a Concession Card and was similarly incorrectly advised to attend a Job Seeker Information Seminar. Such occurrences would only occur when a valid claim was in existence. There was no valid Newstart Allowance claim and accordingly the Concession Card and the requirement to attend the Job Seeker Information Seminar were incorrect actions taken by the Respondent. This was rectified on 10 July 2001. Mr Castleman asserts that the fact these actions were taken indicates Centrelink had accepted that he had a valid Newstart Allowance claim. Furthermore, Mr Castleman refers to the use of the word “claim” in computer print-outs by Centrelink indicating reasons why his "claim" was rejected.  He also referred to Patrick's handwritten note to Mr Castleman in early July 2001, that indicated his "claim” would be rejected if he did not provide certain information.  Mr Castleman's arguments are understandable but based on a false premise.  The semantic mistakes of Centrelink in its correspondence or file notations in relation to Mr Castleman and indeed the issuing of the Concession Card and the requirement to attend the Job Seeker Information Seminar are mistakes made by Centrelink based on a false notion that there was a valid claim. No such valid claim existed. Mr Castleman cannot rely on Centrelink mistakes to then found a factual circumstance that a claim existed. It simply did not.

40.     Mr Castleman is also correct that he had until 19 September 2001, to provide information in order for a claim to be accepted. Thus, while it may have been incorrect for Patrick to provide a deadline for the return of documents by 10 July 2001, the fact of the matter is that Mr Castleman did not return any information in writing and signed by 19 September 2001.

41.     I acknowledge that Mr Castleman wrote to Patrick providing advice about a difficulty he had in the information contained in the document printed at the interview with Patrick on 21 June 2001. This notification of difficulties with the form including errors, did not constitute completion of the form nor signing of the declaration or authenticating the written claim form.

42.     It is convenient at this point to reflect on why it might be that the legislation requires information to be in writing and signed by claimants in order for a proper claim to be made. Centrelink has an obligation in the granting of income security payments to do so only when qualification and entitlement are clearly established under the  provisions  of the legislation. For Officers under delegated authority to approve payment of income security benefits from the public purse on incomplete or inaccurate information and without the acknowledgment of the claimant as to the accuracy of the information and reflecting an understanding of his or her responsibilities, would be negligent in the extreme and a dereliction of the duty of such Officers delegated in such matters.  In the Full Federal Court decision in Formosa and Another v Secretary, Department of Social Security (supra), the Court noted at paragraph 35:

"However, that is not to say that the requirement that the claim be in writing and on a form is not mandatory. The subject matter of the claim is the disbursement of public moneys consequent upon the satisfaction of various criteria laid down in the statute for the payment of particular pensions, benefits and allowances.  It would be to attend the administration of the legislation with the greatest uncertainty both for alleged claimants and for those charged with administration of the legislation if oral applications were to be treated as sufficient for the making of the claim. We would not see these difficulties as alleviated by the prospect of proceedings in a court or before an administrative tribunal to establish the making of oral claims in disputed cases."

The Full Federal Court went on to note that the requirement that a claim should be made in writing is of central importance to the administration of the legislation.

43.     Despite Mr Castleman's difficulties, it must be acknowledged that just as Centrelink has responsibilities, so does he and these responsibilities were present at the time of his intention to lodge a claim for Newstart Allowance in June 2001. This is not a situation where Mr Castleman had asked someone else to complete the form for him or provide him with assistance and he must recognise that fact.  In relation to the concerns Mr Castleman had for any difficulty in the Activity Agreement and the employer contact information, this needed to be discussed and negotiated not simply left to his letter of 1 July 2001. That letter should have been followed up by Mr Castleman or if he felt unable to do so by someone on his behalf. It would seem from the Tribunal’s understanding of this matter, that Patrick would have been able to assist if Mr Castleman had continued the lines of communication.

44.     In relation to Mr Castleman's submissions about the review process and that the decision reviewed was not the one appealed, the Tribunal agrees with Mr Kenny that the reviewable issue was whether or not a claim was made, however it was expressed by the decision-maker. As Mr Castleman noted in his Application for Review to the Tribunal (T1), he is seeking review of the SSAT decision which decided that his Newstart Allowance could not be paid for the period 19 June 2001 to February 2002 (T1, p1).  I note that the SSAT’s decision was that no Newstart Allowance could be paid from 20 June 2001 (T2, p7).

45.     It is true that Mr Castleman did not receive a rejection letter, in fact, because there was no claim to reject.  Centrelink’s decision not to proceed on Mr Castleman's intention to claim his Newstart Allowance should have been formally notified to Mr Castleman and provided in a timely manner.  The application of social security law is complex and reflects the complexity of the legislation. It is undoubtedly difficult for Officers when dealing with customers who may be in distress, incapacitated or unaware of their rights or responsibilities, to undertake their tasks.  It is not hard to see why mistakes are made giving the difficult tasks charged to such Officers. This does not excuse the responsibility for ensuring that Officers charged with delegated responsibilities have proper training to reflect those above mentioned difficulties.  Centrelink is often criticised for its mistakes.  Those staff undertaking the work of Centrelink must be adequately supported and trained to insure that mistakes such as occurred in Mr Castleman's circumstances do not occur again.

46.     Mr Castleman has referred to a number of cases which he submits provide guidance in this matter. In Re Formosa and Department of Social Security (supra), Deputy President Bannon QC, noted in circumstances different to Mr Castleman's, that the legislation, as it then stood, "makes the lodging of a claim in writing a prerequisite to the granting of any pension or benefit" and this was upheld in the Full Federal Court decision in that matter.  The situation in Re Formosa and Department of Social Security (supra) remains true under the provisions of the Administration Act, which govern Mr Castleman's circumstances. In Re Redpath and Department of Family and Community Services (supra), I am of the view that the decision in that matter does not support the ability to make an oral claim as asserted by Mr Castleman.  Furthermore, in Re Anderson and Director-General of Social Security (supra), the Tribunal finds that the circumstances in that case can be distinguished from Mr Castleman's circumstances as outlined by Mr Kenny.

47.     In relation to other cases referred to by Mr Castleman, Re Murphy and Repatriation Commission (supra), although concerning different legislation, acknowledges that a claim must be in writing but in a different form. The point is, Mr Murphy's circumstances were governed under the Veterans' Entitlements Act 1986 and Mr Murphy had lodged a claim form in writing. Mr Castleman had not.  In Re Marsden and Repatriation Commission (supra), again, governed by the Veterans' Entitlements Act 1986, subsection 14(3)(a) of that Act, as is then was, required a claim to be in writing in a form approved by the Commission. In Mr Marsden’s circumstances, attempts were made to lodge a claim for a Special Rate Pension earlier and were not accepted by the Commission. Ameliorating provisions were considered by Senior Member Blow to allow the payment of Special Rate at an earlier date. This differs from Mr Castleman's case in that he had not provided the correct or completed information nor made any declaration.

48. In all of the circumstances and for the reasons expressed above, I find that Mr Castleman did not complete, sign and lodge the approved Newstart Allowance claim form as required by the Administration Act at any time between 20 June 2001 and late February 2002. Accordingly, Mr Castleman cannot be paid a Newstart Allowance for this period, as there was no claim to be determined pursuant to subsection 36(1) and subsection 37(2) of the Administration Act. While mistakes were made by Centrelink in terms of issue of a Concession Card, requiring Mr Castleman to attend the Job Seeker Information Seminar and the use of terminology relating to a "claim", these mistakes do not allow any conclusions other than that there was no claim in the required form and hence no ability to force Centrelink to pay a Newstart Allowance. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.  

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member

Signed:         .......................................................................................
  Associate

Dates of Hearing  22 August 2003; 10 September 2003

Date of Decision  27 February 2004
Representative for the Applicant               Self-represented
Representative for the Respondent          Mr J Kenny, Departmental Advocate

SCHEDULE 1

EXHIBITS

Exhibit	Description	Date
A1	Documents Supplied by Mr Kenny to Mr  Castleman	18 August 2003
A2	Submissions from Mr Castleman	10 September 2003
A3	Mr Castleman's  Final  Written Submissions	9 October 2003
R1	Secretary's Statement of Facts and Contentions	9 August 2003
R2	Further Submissions from Mr J Kenny, Departmental Advocate	22 August 2003
R3	Respondent’s Final Written Submissions from Mr J Kenny, Departmental Advocate	1 October 2003

SCHEDULE 2

LEGISLATION

1. Section 11 of the Administration Act deals with claims and as relevant states:

“11 General rule

(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a)       a social security payment; or

(b)       a concession card;

must make a claim for the payment or card in accordance with this Division.

…”

2. Section 16 of the Administration Act deals with the manner in which a claim for payment or benefit is to be made. Its states, as relevant:

“16 How to make a claim

(1)       A person makes a claim for a social security payment or a concession card:

(a)       by lodging a written claim for the payment or card; or

(b)       by making the claim in accordance with subsection (7).

(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

(4)      A written claim is lodged by being delivered:

(a)to a person apparently performing duties at a place approved for the purpose by the Secretary; or

(b)to a person approved for the purpose by the Secretary; or

(c)in a manner, and to a place, approved for the purpose by the Secretary.

…

(6)The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.

(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

…”

3.Section 36 of the Administration Act states, as relevant:

“36 Obligation of Secretary to determine claim

(1)Subject to subsection (2), the Secretary must, in accordance with the social security law, determine a claim for a social security payment or a concession card, either granting or rejecting the claim.

…”

4. Section 37 of the Administration Act states, as relevant:

“37 Grant of claim

…

(2)The Secretary must determine that a claim for a newstart allowance is to be granted if the Secretary is satisfied that:

(a) the claimant is qualified, or is expected to be qualified, for the allowance; and

(b)      the allowance would be payable apart from:

(i)        the application of a waiting period; or

(ii)      the application of an activity test non-payment period; or

(iii) the application of an activity test breach rate reduction period where the activity test breach rate reduction reduces the rate of newstart allowance payable to the claimant to nil; or

(iv) the application of an administrative breach rate reduction period where the administrative breach rate reduction reduces the rate of newstart allowance payable to the person to nil; or

(v) the application of an income maintenance period where the rate of newstart allowance payable to the person is nil.

…”