Catherine Tinsey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 290

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/2800

Re

Catherine Tinsey

APPLICANT

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 10 May 2013

Place East Maitland, NSW
The decision under review is affirmed.
........................[sgd].............................................
Mr S. Webb, Member
SOCIAL SECURITY – rate of payment – defined benefits superannuation income stream – intention to claim Widow Allowance – Centrelink administrative errors – informal advice about eligibility not comprehensive – claim not lodged prior to commencement of amending legislation – subsequent claims lodged and payments made – failure to provide notice affects operation of claim lodgement deeming provisions – decision affirmed
Social Security Act 1991 (Cth) ss 9, 23, 1099A, 136 of Schedule 1A
Social Security (Administration) Act 1999 (Cth) ss 13, 15, 179, 181, 236, Schedule 2
Formosa and Anor v Secretary, Department of Social Security (1988)46 FCR 117
REASONS FOR DECISION
Mr S. Webb, Member
10 May 2013

Catherine Tinsey receives a defined benefits superannuation pension. She also receives social security payments, presently Age Pension. The rate of her social security payments is affected by her superannuation pension income – part of her superannuation pension income is applied when calculating the rate of her social security payments. The legislative provisions governing the amount of superannuation pension to be included in this calculation changed in 2007, and a less generous formulation came into effect. Mrs Tinsey identified an error in the calculation of her social security payments and asserts that the more generous provisions should continue to be applied in her case.
The Secretary accepted that errors were made in the calculation of Mrs Tinsey’s social security payments from August 2007. It appears that her defined benefits Public Sector Superannuation pension was mis-coded as a Commonwealth Superannuation Scheme pension, in consequence of which the ‘deductible amount’ defined by s 9(1) of the Social Security Act 1991 (Cth) (the Social Security Act) was fixed rather than indexed periodically. This resulted in an under-payment of social security payments. The errors were corrected on review by an Authorised Review Officer and compensation for detriment caused by defective administration was paid. But this did not address the balance of Mrs Tinsey’s concern that the more generous pre-amendment provisions should continue to apply in her case, and she pressed her rights of review. The Social Security Appeals Tribunal affirmed the Review Officer’s decision on this point.
The brief facts arising from the materials follow.
Mrs Tinsey purchased a defined benefits Public Sector Superannuation pension in 1995, using a lump sum superannuation amount. From 2001 she was paid widow allowance. She is a Certified Practicing Accountant, but she suffers from medical conditions that affect her capacity to work. She undertakes voluntary work with the Anglican Church.
In or about March 2006, Mrs Tinsey was offered six months paid work by the Church. She promptly informed Centerlink of this change in her circumstances and her Widow Allowance was ceased. Mrs Tinsey’s contract with the Church was extended by two further periods, and it came to an end in April 2007.
Mrs Tinsey says that very soon thereafter, on or about 14 April 2007, she attended the Centrelink office in Toronto, New South Wales, in order to enquire about resuming Widow Allowance payments. She says that she was given a claim form to complete and she was told that she should return it after receiving her final monthly payment from the Church employment (apparently she was paid by the Church on a monthly basis). Centrelink has no record of this contact. Nevertheless, it appears that the contact occurred and Mrs Tinsey returned to the Toronto Centrelink office on 27 April 2007 in order to lodge the completed claim form.
What occurred when she attended the Toronto Centrelink office that day is a matter of controversy. Mrs Tinsey resolutely maintains that she intended to lodge a claim for Widow Allowance and, when this was denied her by the Centrelink officer, she wanted to claim Sickness Allowance on account of her medical conditions and work restrictions. It appears that the Centrelink officer informed her that she was not eligible for a Widow Allowance, although Centrelink denies that any determination or decision was made. Mrs Tinsey maintains that the Centrelink officer advised her to claim Newstart Allowance as she may be eligible, even though she explained her difficulties in respect of employment and seeking work. In the result, Mrs Tinsey says that she did not want to apply for Newstart Allowance and she left, taking the Widow Allowance claim form with her.
The Centrelink record of this contact[1] sets out the following notes –
Sum: CSO CLM WDA Ext Detail: Cust attended TON:WDA Clm
Txt:Customer Service Officer actioned record on 27 APR 2007 regarding Claim for Widow Allowance. Information was obtained via Liaison Advice using Personal – In Office. Document created by WKR on 27 APR 2007.
Cust attended TON office to lodge WDA Claim.
Cust advised she had been working FT since she last received WDA in Mar06. Cust confirmed that she has been working FT for the whole 13 mth period. I advised cust that as she had recent workforce exp she would not be eligible for WDA. Explained that she could apply for NSA and if she has no workforce exp she could reapply for WDA after 9 mths. Cust advised that she did not wish to look for work and would come back in 9 mths. She took claim with her and did not wish to lodge.
NSA was offered but cust did not wish to claim.
[1] ST2 folio 374.
As can be seen, Mrs Tinsey was provided with advice that she was not eligible for Widow Allowance and this appears to have caused her to not lodge the claim she had prepared for that payment. Furthermore, even though she was ‘offered’ Newstart Allowance, she did not want to claim that payment. Centrelink did not provide Mrs Tinsey with any written confirmation of this contact or notice of her consequential rights or claim options.
Mrs Tinsey says that she made a number of contacts with Centrelink after this event, but she could not recall the precise dates. She asserts that it was difficult for her to survive on her superannuation pension and that her finances were becoming increasingly straitened and difficult in the absence or income support payments from Centrelink.
On Centrelink’s records, Mrs Tinsey contacted Centrelink by telephone on 1 June 2007. The record sets out the following notes –
Sum:CUS ENQ CLM CCD Ext Detail: Eligibility
Txt:Customer contacted CC ADELAIDE on_1 JUN 2007 regarding General Enquiry, Claim, for Customer Contact Details. Information was obtained via Phone Call. Document created by KSU318 on_1 JUN 2007.
Contacted at 09:57 Rec No: 632864
Enq Eligibility for widows/newstart DOV:01/06/2007
Caller was advised of general eligibility criteria for: widows/newstart
Caller was not advised eligible or non-eligible for – customer advised has had recent workforce experience of at least 20 hours a week for 13 weeks or more during last 12 months – discuss newstart activity test for over 55 years old – customer did not wish to continue with claiming at present time
Details updated on CCD screen were: jsk
Caller was invited to fully test eligibility.[2]
[2] ST2 folio 373-374.
In respect of this contact, Mrs Tinsey says that she “asked what had to be done to obtain sickness benefit or the invalid pension”[3].
[3] Applicant submissions, 1 May 2013, page 2 at [5].
Following this contact, Centrelink send Mrs Tinsey a notice[4] setting out the following information –
Your Intention to Claim
We confirm that Centrelink was contacted on 1 June 2007 about your intention to claim a payment or concession card.
If a completed claim is returned to us on or before 15 June 2007, and if you were qualified on your contact date of 1 June 2007, your contact date will be used as the day on which your claim was made…
Please contact Centrelink immediately if you have any difficulty in returning your claim by the required date.
…
[4] T1 folio 72.
Mrs Tinsey did not lodge a claim by 15 June 2007.
On the Centrelink records before me, Mrs Tinsey’s next contact with Centrelink appears to have occurred on 14 August 2007 in respect of her intention to claim a health care concession card[5].
[5] Exhibit 2, attachment, pp 1 to 10.
The records reveal that Centrelink had two Customer Reference Numbers (CRNs) for Mrs Tinsey – the records of contact on 27 April 2007 and 1 June 2007 are on her primary CRN, whereas the records of contact on 14 August 2007 are on her second or ‘shelf’ CRN. I was assured during the hearing that all the records attached to Mrs Tinsey’s shelf CRN had been provided (Exhibit 2), including records from 2001 and 1997. It is troubling that Centrelink has two CRNs for Mrs Tinsey, with different records attaching to each number. I was informed that this has now been addressed, and the second CRN has been discontinued. Nevertheless, this occurrence raises doubts about the completeness of the relevant records in these proceedings. Further searches were undertaken by Centrelink, as directed, but no additional records were identified.
On 24 August 2007, the Centrelink records reveal that Mrs Tinsey contacted Centrelink regarding a claim for Newstart Allowance, which was granted[6]. A Preliminary Claim was created and a notice was issued to Mrs Tinsey[7] -
Confirmation Of Your Intention To Claim
We confirm that Centrelink was contacted on 24 August 2007 about your intention to claim Newstart Allowance. Your contact date of 24 August 2007 will be used as the day on which your claim was made if you were qualified on this date and you lodge the enclosed Preliminary claim form by 7 September 2007. If you do not return a signed claim form on or before 7 September 2007 it may result in any payment made to you being paid from a later date.
…
[6] ST2 folio 372-373.
[7] See T1 folios 62 and 63.
Notices concerning payment of Newstart Allowance were sent to Mrs Tinsey on 24 August 2007[8].
[8] T1 folios 64 and 65.
On 31 August 2007, Mrs Tinsey lodged a medical certificate from her treating doctor covering 29 August 2007 to 28 November 2007[9]. A Notice concerning payment of Newstart Allowance was sent to her on 31 August 2007[10]. This Notice informed her that she was exempt from the Activity Test requirements for the duration of the medical certificate.
[9] ST2 folio 370.
[10] T1 folio 60.
On 11 September 2007, Mrs Tinsey was sent another Notice concerning payment of Newstart Allowance[11]. On the same day she underwent a Job Capacity Assessment and was found to have a temporary incapacity for work – “… work capacity of 0-7 [hours per week] to the 29/02/08…” and a future work capacity, when not temporarily reduced, of 15 to 22 hours per week[12].
[11] T1 folio 59.
[12] ST2 folio 369.
On 20 September 2007, Mrs Tinsey contacted Centrelink regarding Disability Support Pension, which was granted[13].
[13] ST2 folios 367-368.
On 24 September 2007, Mrs Tinsey was sent a Notice informing her that “Your Newstart Allowance has been stopped from 22 September 2007 because you have not provided additional documents to prove your identity as previously requested”[14]. This Notice does not set out any information concerning Mrs Tinsey’s review rights in respect of the decision to stop her Newstart Allowance. Nevertheless, on 28 September 2007, she was sent another Notice concerning her regular Newstart Allowance payment[15].
[14] T1 folio 58.
[15] T1 folio 57.
On 3 October 2007, Mrs Tinsey lodged a Treating Doctor’s Report[16] in support of her claim for Disability Support Pension.
[16] T1 folios 52-55.
On 11 October 2007, Centrelink wrote to Mrs Tinsey to inform her of an appointment with a Job Capacity Assessor –
To help us offer you the most suitable payment and services, we need more information about your ability to work and/or your medical condition.
We have referred you to a Job Capacity Assessor to help us gather this information.
…[17]
[17] T1 folio 56.
On 18 October 2007, Centrelink wrote to Mrs Tinsey asking for more information in respect of her claim for Disability Support Pension, namely “40 points of identification”[18].
[18] T1 folio 48.
On 1 November 2007, Centrelink notified Mrs Tinsey that –
Your Newstart Allowance has been cancelled from 20 September 2007 because you are already receiving a payment from Centrelink or another Government Department.
On 5 and 6 November 2007, Centrelink paid Mrs Tinsey Disability Support Pension in arrears from 20 September 2007 to 19 October 2007, and from 20 October 2007 to 2 November 2007, respectively[20].
[20] T1 folio 36.
On 1 October 2010, Centrelink sent Mrs Tinsey a Transfer to Age Pension form, which she completed and lodged on 15 October 2010[21]. The transfer took effect on 3 December 2010.
[21] T12 folios 265-269.
On 6, 7 and 11 July 2011, Mrs Tinsey sought an explanation from Centrelink about deductions from her superannuation income stream applied when calculating her Age Pension[22].
[22] ST2 folios 350-351.
On 27 October 2011, an Authorised Review Officer decided that Mrs Tinsey’s Age Pension had been incorrectly calculated and it should be recalculated from 6 July 2011. The Officer decided that Mrs Tinsey’s payments should be calculated by application of the legislative formulation that commenced on 1 July 2007, whereby the untaxed portion of her superannuation income would be deducted from her ordinary income. The Officer also referred the matter for consideration of payment of compensation for detriment caused by defective administration[23]. Subsequently, Mrs Tinsey was paid an amount of compensation equal to the amount she had been underpaid from 24 August 2007 applying the post-July 2007 formulation.
[23] T21.
Mrs Tinsey sought review[24].
[24] T24.
On 24 May 2012, the Social Security Appeals Tribunal affirmed the Authorised Review Officer’s decision[25].
[25] T1 folios 5-11.
Mrs Tinsey applied for review[26].
[26] T1.
The issue to be decided is the correct formulation that applies to the calculation of Mrs Tinsey’s social security payments from 2007. This requires determination of the correct method for calculating the ‘deductible amount’ of her defined benefit superannuation income stream. Before proceeding to address this issue, it is necessary to briefly address an issue of jurisdiction raised by the Secretary.
Jurisdiction
The Secretary raised an issue of jurisdiction in respect of whether Mrs Tinsey should be taken to have made a claim prior to 1 July 2007 and in respect of the start dates of the Newstart Allowance and the Disability Support Pension she was subsequently granted. As I understand this submission, the Secretary contends that these matters were not considered by the Social Security Appeals Tribunal, and the jurisdiction of the AAT conferred by s 179 and s 181 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) is limited to the matters considered by the SSAT.
I reject these submissions for two simple reasons. Firstly, the jurisdiction conferred by s 179, where the SSAT has affirmed a decision, is for the review of the SSAT decision; s 181 simply confines the review to a decision that has been reviewed by the SSAT. Thus, whether or not the SSAT considered and determined all relevant matters in its review of a decision, the jurisdiction of this Tribunal is to review the SSAT decision and to make a fresh decision. For that purpose, all relevant matters must be considered and dealt with.
Secondly, it is incorrect to suggest that the SSAT did not consider issues relating to whether Mrs Tinsey made a claim prior to 1 July 2007, or to whether the start dates of the payments she was subsequently granted could be back-dated. On a fair reading of the SSAT’s decision it did consider these matters, albeit briefly, and it dismissed them as not determinative. The SSAT said –
17. The research undertaken by the Tribunal led it to the conclusion that it was unnecessary to determine whether Mrs Tinsey should be taken to have made a claim for a payment prior to 1 July 2007. In the context of the present matter it therefore became unnecessary for the Tribunal to determine whether there was administrative error in not processing claims for payment properly prior to July 2007.
…
25. … Moreover, the delay (if there was one) in granting Mrs Tinsey a social security payment between April and July 2007 is of no consequence in the treatment of her defined benefit income stream from 1 July 2007.
26. This conclusion is reached having regard to the relevant part of the transitional provisions in section 136 of Schedule 1A of the Act…
27. …
b) … Mrs Tinsey ceased to receive an income support payment in February 2006; therefore, she was not receiving an income support payment continuously up to and including the trigger day of 1 July 2007.
…
28. As subclause 136(1)(b) does not apply to Mrs Tinsey, the transitional provisions do not apply and the deductible amount in relation to her income stream is, and has been since 1 July 2007, subject to the current formula in section 9 of the Act….
As can be seen, the SSAT considered issues relating to the existence of a claim or administrative error, and to the payability of a payment, prior to 1 July 2007, but concluded that it was not necessary to determine these issues as, in its view, Mrs Tinsey could not satisfy the requirements of s 136(1)(b) in any event.
In order to address the issues raised by s 136(1)(b) one must have regard to the meaning of ‘receiving a payment’ under s 23(2) –
23(2) For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day (emphasis added).
Thus, the conception of receiving a payment includes a payment that is payable to the person, whether or not it was paid. A social security payment is payable to a person from the date on which the person is qualified to receive the payment, applying claim provision in Division 1, Part 3 of the Administration Act and the start date provisions in Schedule 2 of that Act.
It follows that in order to address the issues raised in Mrs Tinsey’s case, it is necessary to determine whether a social security payment was payable to her for a continuous period immediately prior to 1 July 2007. If it was, the transitional provisions relating to the definition of ‘deductible amount’ under s 9(1) of the Social Security Act may apply. In order to make that determination, it is necessary to determine whether Mrs Tinsey made or is deemed to have made a claim for which she was qualified prior to 1 July 2007, or whether the claims she made after that date may be back-dated to commence at an earlier date.
The deductible amount
Mrs Tinsey asserts that her efforts to obtain a social security payment from April 2007, and her qualification for such a payment at that time, should bring her case within the savings and transitional provisions of the amendments that commenced on 1 July 2007. She says that the formulation of ‘deductible amount’ that applied prior to 1 July 2007, whereby the taxed and untaxed components of her superannuation pension should be included in that amount, should apply in her case as provided for in the transitional provisions set out in s 136 of Schedule 1A.
The Secretary disagrees, submitting that Mrs Tinsey’s case does not satisfy the savings and transitional criteria set out in s 136. Essentially, the Secretary says that as Mrs Tinsey did not receive a social security payment for a continuous period immediately before 1 July 2007, being the applicable ‘trigger date’, her case is not preserved or ‘grandfathered’ under the savings and transitional provisions and it must be assessed under the operative provisions that were in force when her claim was made on 24 August 2007.

For the purposes of the Social Security Act, the amount of income a person obtains from a defined benefit superannuation stream is to be calculated under s 1099A –
Income—income stream is a defined benefit income stream
If the asset‑test exempt income stream to which this Subdivision applies is a defined benefit income stream, the amount that the person is taken to receive from the income stream each year is worked out as follows:
Annual payment – Deductible amount
where:
annual payment means the amount payable to the person for the year under the income stream.
deductible amount has the meaning given by subsection 9(1).
The definition of ‘deductible amount’ in s 9(1) prior to 1 July 2007 was in the following terms –
deductible amount, in relation to an income stream, means the amount that would be the deductible amount in relation to the income stream under subsection 27H(2) of the Income Tax Assessment Act, if the references in that subsection to an annuity were references to an income stream.
This was amended on 1 July 2007 and the following definition came into effect –
deductible amount, in relation to a defined benefit income stream for a year, means the sum of the amounts that are the tax free components (worked out under Subdivision 307‑C of the Income Tax Assessment Act 1997 or, if applicable, section 307‑125 of the Income Tax (Transitional Provisions) Act 1997) of the payments received from the defined benefit income stream during the year.
The new definition applied subject to related transitional provisions set out in s 136 of Schedule 1A –
136 Transitional definition of deductible amount (commencing 1 July 2007)
(1) This clause applies if:
(a)a person has received at least one payment from a defined benefit income stream before 1 July 2007, and is still receiving payments from the income stream; and
(b)the person receives income support payment in respect of a continuous period starting before, and ending on or after, the person’s trigger day (see subsection (5)); and
(c)the amount of the income support payment received before the person’s trigger day was affected by the deduction of a deductible amount (within the meaning of this Act or the Veterans’ Entitlements Act, as the case requires, apart from this clause) from the amount of the payments payable to the person for a year under the income stream; and
(d)if the person’s trigger day is after 1 July 2007—the income stream has not been partially commuted on or after 1 July 2007 and before the person’s trigger day.
Note 1: If the income stream is wholly commuted, this clause will stop applying because the person will no longer be receiving payments from the income stream (see paragraphs (1)(a) and (d)).
Note 2: For the deduction of a deductible amount from amounts payable under certain defined benefit income streams, see sections 1099A and 1099D of this Act and sections 46V and 46Y of the Veterans’ Entitlements Act.
(2)Despite the amendment of this Act by Part 2 of Schedule 8 to the Tax Laws Amendment (Simplified Superannuation) Act 2007, for the purposes of working out the amount of any income support payment (other than a service pension or income support supplement) received by the person on or after the trigger day in respect of the remaining part of the period mentioned in paragraph (1)(b), the deductible amount, in relation to the income stream for a year, is the greater of the following amounts:
(a) the deductible amount mentioned in paragraph (1)(c);
(b) the sum of the amounts that are the tax free components (worked out under subsections 307‑125(4) to (7) of the Income Tax (Transitional Provisions) Act 1997) of the payments received from the income stream during the year.
(3)However, this clause stops applying to an income stream immediately after the time (if any) that the deductible amount in relation to the income stream is, under subclause (2), the amount mentioned in paragraph (2)(b).
(4)For the purposes of this clause, without limiting paragraph (1)(b), if the form of a person’s income support payment mentioned in paragraph (1)(b) changes during a period, the continuity of the period is not broken by the change.
Example: The form of a person’s income support payment may change from one kind of payment (for instance, a service pension under the Veterans’ Entitlements Act) to another (for instance, a social security pension under this Act).
(5)In this clause:
trigger day, for a person, means:
(a)if the person is under 60 years at the end of 30 June 2007—the day the person turns 60; or
(b)if the person is 60 years or over at the end of 30 June 2007—1 July 2007.
As Mrs Tinsey was over 60 on 1 July 2007, the ‘trigger date’ is 1 July 2007.
There is no dispute that Mrs Tinsey satisfies s 136(1)(a) and (c). The key issue to be determined is whether she satisfies s 136(1)(b).
There is much force to the Secretary’s submissions, but the circumstances of Mrs Tinsey’s interactions with Centrelink from April 2007 raise some difficult questions. Principally among them is the question whether any social security payment was payable to her prior to 1 July 2007. If it was, then s 23(2) of the Social Security Act may apply to deem the payment as one that Mrs Tinsey was receiving from an earlier date, thereby potentially bringing her within the terms of s 136(1)(b) of the transitional provisions. If no social security payment was payable to her, and she did not receive such a payment immediately prior to 1 July 2007, then she cannot come within the terms of s 136(1)(b) and that is the end of the matter as there is no discretion to make any different finding.
Thus there are two aspects to consider. The first requires determination of whether Mrs Tinsey made or is deemed to have made a claim for an income support payment for which she was qualified prior to 1 July 2007. The second requires determination of whether the claims she made for income support payments after 1 July 2007 can be back-dated to either of the dates of Mrs Tinsey’s earlier interactions with Centrelink in April and June 2007.
Claim prior to 1 July 2007
Mrs Tinsey says that the dates of her contacts with Centrelink prior to 1 July 2007 should be applied as she intended to make a claim at that time but she was provided with deficient or incorrect information about allowances or benefits that she was eligible for. In her submission, if she had been provided with correct information reflecting the particular circumstances of her case, she would have lodged a claim and the rate of her subsequent payments would have been calculated under the pre-1 July 2007 rules applying to her superannuation pension income.
While the content of the interactions between Mrs Tinsey and Centrelink officers in April 2007 and on 1 June 2007 is not entirely clear, I am reasonably satisfied that she did not lodge a claim for an income support payment in the course of those interactions prior to 1 July 2007. I accept that Mrs Tinsey was provided with a claim form for Widow Allowance on her first contact with Centrelink on or about 14 April 2007 (even though no record exists). It appears that she completed the form and on 27 April 2007 she returned with it to the Toronto Centrelink office, with the intention of lodging the claim. But she did not do so. She was provided with further information on 1 June 2007, but she did not make a claim. It follows that no determination of her eligibility for a social security payment was made in the course of the informal discussions she had with Centrelink officers on or about 14 April, 27 April and 1 June 2007.
There are a number of things to say about this. Under Part 3 of the Administration Act, the general rule is that a person must lodge a written claim in order to be granted a social security payment. The requirement for a written claim is central to the administration of the social security scheme in respect of income support payments[27].
[27] Formosa and Anor v Secretary, Department of Social Security (1988)46 FCR 117, per Davies and Gummow JJ at 124.
Under s 236 of the Administration Act, a decision determining a claim, and the eligibility of a claimant for an income support payment, must be in writing – the informal discussion of likely eligibility prior to lodgement of a claim does not satisfy this requirement. It should be noted, however, that a decision that is recorded in a computer record may satisfy this requirement, as per subsection 236(2).
Even though Centrelink officers may commonly engage in informal discussion of a prospective claimant’s circumstances in terms of his or her likely eligibility for a social security payment, perhaps in order to facilitate the lodgement of appropriate claims or to minimise the lodgement of incorrect or inappropriate claims, there is an attendant risk that the information conveyed in such discussions may not be accurate, comprehensive or relevant in the particular circumstances. The difficulty confronting a Centrelink officer when formulating informal advice in reference to a prospective claimant’s circumstances highlights the risks associated providing such information or advice without a claim, setting out all the relevant information. This is especially troubling if the officer expresses opinion about the prospective claimant’s eligibility for a particular payment without a proper assessment being made.
Under s 13 of the Administration Act a claim may be deemed to have been lodged on the date the prospective claimant first contacted Centrelink in respect of an income support payment. To some extent, in some cases, this may serve to mitigate the risk of error and any consequent adverse consequences for a prospective claimant arising from such informal discussions prior to lodgement of a claim. These deeming provisions are essentially preconditioned by the Secretary issuing a written notice acknowledging the contact.
Centrelink failed to issue Mrs Tinsey with a written notice acknowledging her contact with Centrelink in respect of a prospective claim for an income support payment on or about 14 April and 27 April 2007. Whether or not these are reviewable decisions, as the Secretary contends, is beside the point. To my mind these failings constitute administrative errors that may have adverse consequences for a prospective claimant such as Mrs Tinsey at that time. If strictly applied, the failure to provide her with such a notice would render the deeming provisions under s 13 of the Administration Act inapplicable, with the effect that any subsequent claim would not be taken to have been made on the date of her first contact with Centrelink in relation to it. The legislation provides no express remedy for such an error. The provisions for working out, or back-dating, the start day of a social security payment in Parts 2 and 3 of Schedule 2 of the Administration Act do not assist where no claim has been made.
When construing the terms of s 13, it is necessary to consider the purposes of the section in the scheme of the social security law. The section has two key purposes – to treat a claim lodged within a period following contact between the claimant and Centrelink as effective from the date of the contact; and to fix the period. The function of a written notice issued for the purposes of s13 is to acknowledge the date of contact between the prospective claimant and Centrelink and to provide related information about the period in which a claim may be lodged without the detriment of delay on any subsequent eligibility for payment. Where no such notice of acknowledgement is given, a question arises whether the deeming provisions may apply in respect of any subsequent claim.
On the one hand, the giving of a notice is an essential precondition to the deeming provisions, but on the other hand, the deeming provisions operate in a beneficial manner for a claimant and it would be unusual in the context of beneficial legislation such as this for a compliant claimant to be denied the benefit as a result of an administrative error on the part of the Secretary. In the present circumstances, it is not necessary for me to determine this point as Mrs Tinsey subsequently made contact with Centrelink that resulted in her being given a notice prior to 1 July 2007.
Where an error has occurred and a notice of acknowledgement has not been given, it does not follow that any subsequent claim lodged by the person may be deemed to have been lodged on the unacknowledged date of contact between the person and Centrelink. Action within a reasonable period following the Centrelink contact is required on the part of the person intending to lodge a claim.
Mrs Tinsey contacted Centrelink by telephone on 1 June 2007 to enquire again about her eligibility for a social security income support payment. In this contact it appears that she was not given advice about her likely eligibility, although she was given information about the Newstart Allowance activity test.
She was given a notice acknowledging the contact, in which she was informed that if she lodged a claim by 15 June 2007, the claim would be taken to have been lodged on the contact date – 1 June 2007. This notice provided no information about circumstances that may result in a longer period of 13 weeks being applied, in respect of a medical illness or special circumstances for example. To that extent, the notice is deficient. Nevertheless, I note that it informed Mrs Tinsey to contact Centrelink if she encountered difficulty lodging a claim within the specified time.
Mrs Tinsey says that she could not comply with the 14 day limit, as she suffered from a medical condition and, in order for her to lodge a claim for Sickness Allowance or Disability Support Pension, she would have to obtain a report from her treating doctor. She maintains that this was not possible in the available time – obtaining an appointment with her doctor would require several days and, in any event, her treating doctor referred her to a specialist and that process required several weeks, at least.
This aspect of her case was not addressed by detailed evidence; nor was it challenged. Nevertheless, the evidence of Dr Cornish on 29 August 2007 is that Mrs Tinsey suffered from long standing lower back pain and polyarthralgia from February 2007; both of which were “Likely to persist”[28]. I note that Dr Cornish indicated that further tests were required. On this basis, I am reasonably satisfied that Mrs Tinsey suffered from a medical condition that persisted throughout from 1 June 2007 to 31 August 2007.
[28] T1 folio 61.
But there is no evidence that Mrs Tinsey made any effort to inform Centrelink that there would be a delay in her lodging a claim as a result of a delay in obtaining a medical appointment. There is no compelling evidence that she intended to make a claim in the weeks following the contact with Centrelink on 1 June 2007.
On 24 August 2007 Mrs Tinsey lodged a Preliminary Claim for Newstart Allowance[29]. On 31 August 2007, precisely 13 weeks after her contact with Centrelink on 1 June 2007, she lodged further documents, including a medical certificate and she was granted exemption from the Newstart Allowance activity test[30].
[29] T1 folio 62; ST2 folios 372-373 refer.
[30] T9 folio 158; ST2 folio 370.
Having regard to these facts and to s 13(2) of the Administration Act, I am reasonably satisfied that she satisfies s 13(2)(a), (c), (d) and (e)(i). Two questions remain – was she qualified for Newstart Allowance, albeit with an exemption from the activity test, on 1 June 2007; and did her medical condition, or circumstances relating to it, have a significant adverse effect on her ability to lodge the claim earlier.
As to the question of qualification for Newstart Allowance, it appears that the Centrelink officer Mrs Tinsey consulted on 27 April 2007 ‘offered’ her Newstart Allowance. There is no evidence that Mrs Tinsey was in employment – she was unemployed on 1 June 2007. Whether or not she was qualified for Newstart Allowance on that day is to be determined, although I do not understand this to be a point of any controversy.
The question concerning the effect of her medical condition and related circumstances on her ability to lodge the claim earlier is attended by two difficulties. Firstly, there is only scant evidence addressing this point. Mrs Tinsey gave evidence at the hearing that she discussed sickness benefits with the Centrelink officer she had contact with on 1 June 2007. Her evidence is that that the officer informed her that she would require a medical certificate from her doctor to be excused from the requirement to look for work under the Newstart Allowance activity test. In the written submissions dated 1 May 2013, Mrs Tinsey says –
14 days is not a reasonable time to lodge an application for sickness benefits given that the application must be supported by a doctor’s certificate. The normal waiting time for a doctor’s appointment in Toronto is between 7 and 14 days. Then the doctor would not normally fill the lengthy form in immediately. In my own case I had just started to suffer with arthritis in addition to my existing conditions and my GP wanted a specialist report. The normal waiting time to see a specialist starts at 6 weeks but is commonly much longer.
Secondly, in the notice acknowledging Mrs Tinsey’s contact on 1 June 2007, Centrelink did not provide her with information about the period in which she could lodge a claim if she was suffering from a medical condition. She was notified that a claim would need to be lodged by 15 June 2007 for it to be treated as an effective claim from 1 June 2007. This deficiency meant that Mrs Tinsey was not given notice that was relevant to her circumstances and that, if given, may have enabled her to obtain relevant materials from her doctors and to lodge a claim at an earlier time.
I am reasonably satisfied that the circumstances of Mrs Tinsey’s medical conditions did not have a significant adverse effect on her ability to lodge the claim for Newstart Allowance at an earlier date. The fact is that she lodged a Preliminary Claim for Newstart Allowance without a medical certificate on 24 August 2007. I can find no reason why she could not have done this much earlier, on or before 15 June 2007, if she had chosen to do so. The claim she lodged on 31 August 2007 attached a medical certificate, but there is no evidence that this was attendant upon a specialist medical opinion, or that it was in a long form. The document at T1 folio 61 suggests that it was not. Thus, even accepting what Mrs Tinsey says about the delays associated with obtaining a medical appointment in Toronto, there is no sufficient basis to conclude that her medical conditions or any related circumstances had a significant adverse effect on her ability to lodge the claim earlier than 24 August 2007. Even if one accepts that there may have been a delay of some weeks in obtaining an appointment with her treating doctor, and for the doctor to complete a medical certificate, it appears to me that this could have been completed prior to 1 July 2007 and it cannot now be said that this had a significant adverse effect on her ability to lodge a claim earlier than 24 August 2007. I am satisfied that it did not.
I considered whether any other provisions of s 13 might apply, in terms of special circumstances under s 13(3A) for example. I am reasonably satisfied that none of those provisions are applicable and, particularly, the evidence does not indicate the presence of special circumstances, even though Centrelink errors were made.
The fundamental difficulty for Mrs Tinsey is that for a claim to be lodged, the claimant must take action to lodge it in writing. This did not occur until 24 August 2007. There is no firm evidence to support the proposition that her medical conditions or any other circumstances adversely affected her ability to lodge an earlier claim or render it not reasonably practical for her to do so.

Thus, in sum on this point, Mrs Tinsey’s claim for Newstart Allowance on 24 August 2007 cannot be taken to have been lodged on 1 June 2007 or any other date prior to the coming into effect of the amending legislation on 1 July 2007.
The start date
Finally, I considered whether the provisions in Schedule 2 of the Administration Act could be applied to establish a start date prior to 1 July 2007. The general rule is that the start day is the day on which a claim is made for a social security payment for which the person is qualified. Mrs Tinsey says that the claims she made for Newstart Allowance and Disability Support Pension in August and September 2007 respectively should be back-dated to the date of her contacts with Centrelink in either April or June 2007. She asserts that in these contacts she was not provided with information about social security payments that may have been relevant to her medical circumstances prior to 1 July 2007 – had she been provided with correct or relevant information, she would have made a claim.
The extent to which Mrs Tinsey’s medical circumstances were discussed in the contact she had with Centrelink officers in April and June 2007 is not clear. Even if she is correct that such matters were discussed and she was erroneously not provided with relevant information, and I make no such finding, it would not assist her case.
The back-dating provisions set out in Part 3 of Schedule 2 are not applicable in the circumstances of her case.
It was open for Mrs Tinsey to make a claim and to test the information she was provided, but she elected not to do so. Without a claim, the transfer provisions set out in s 15 of the Administration Act cannot apply.
It follows that the start date applying to the claim for Newstart Allowance on 24 August 2007 and for Disability Support Pension on 20 September 2007 cannot be back-dated.
Conclusion
The present evidence does not establish on the balance of probabilities that any circumstances exist relating to Mrs Tinsey’s medical conditions that had a significant adverse effect on her ability to lodge a claim earlier that 24 August 2007; nor is it established that any special circumstance exists that rendered it not reasonably practical for her to do so. While unfortunate, the administrative errors of Centrelink did not impede Mrs Tinsey ability to lodge a claim for a social security payment prior to 1 July 2007.
On 1 June 2007 Mrs Tinsey was given notice informing her that if she made a claim by 15 June, it would be effective from 1 June and to contact Centrelink if she encountered difficulties doing so within the allotted time. She did not do so and the claims she made on 24 August and 20 September 2007 cannot be deemed to have been lodged and cannot be back-dated to 1 June 2007 or to either of the dates on which she had contact with Centrelink in April of that year.
It follows that she did not receive a social security payment for a continuous period immediately prior to 1 July 2007 and her case is not within the scope of the transitional provisions applying to the amendments that came into effect on that date. The rate of her social security payments is to be calculated taking account of income she obtains from her defined benefits superannuation income stream, applying s 1099A and the current definition of ‘deductible income’ in s 9(1).
In effect, that is what has been done, albeit that administrative errors were made and Mrs Tinsey was paid compensation for defective administration.
In conclusion, therefore, the present evidence does not establish that Mrs Tinsey was receiving, or is deemed to have been receiving, an income support payment for a continuous period immediately prior to 1 July 2007. She does not satisfy s 136(1)(b). The definition of ‘deductible amount’ in s 9(1) of the Social Security Act that commenced on 1 July 2007 applies in her case.
I considered the calculation of the rates of Mrs Tinsey’s Newstart Allowance, Disability Support Pension and Age Pension. It appears to me that the manner in which the deductible amount derived from her defined benefit income stream has been calculated by the Review Officer is correct. I note that she successfully claimed compensation for defective administration to address underpayments that resulted from Centrelink errors from 24 August 2007. I am reasonably satisfied that the ‘deductible amount’ has been correctly calculated and applied.
That being so, the decision under review must be affirmed.
Before closing, it is appropriate to address one further matter.
Mrs Tinsey argued that in April and June 2007 Centrelink had a duty to inform her of the effect of the legislative amendments that were then due to commence on 1 July 2007 on the rate of any prospective social security payment she might claim. While it is most desirable for Centrelink to provide information that is correct, I do not accept that Centrelink is obliged or under a duty to inform prospective claimants, such as Mrs Tinsey was at the time, of the potential effects of amending legislation on the rate of social security payments that might be payable if a claim is made and granted. To my mind, that is not a reasonable expectation. One might expect that relevant information about the effect of legislative changes should be provided to recipients of social security payments. But that does not assist Mrs Tinsey in the circumstances that pertained prior to 1 July 2007 where she was not a social security recipient.
It can be accepted that prior to 1 July 2007 Mrs Tinsey did not know of the amendments to the Social Security Act that commenced on that date, and that she did not understand the potential effects of the legislative changes on the rate of any social security payment she might claim and be granted thereafter. It may also be accepted that Centrelink did not inform her of these changes. But Mrs Tinsey is a Certified Practising Accountant and, as a (then) prospective social security claimant, she, more than many social security claimants, would have the capacity to understand that the level of her superannuation income would affect the rate of her payments, as it must have done prior to February 2006 when she was in receipt of Widow Allowance, and to enquire about the rate of payment if a claim was lodged and granted. While she levels blame at Centrelink for not informing her of the legislative changes before they came into effect, even though it may have been desirable for that to have occurred if Mrs Tinsey had provided sufficient information about her circumstances to warrant it, Centrelink was not obligated to inform a prospective claimant, as she then was, of such matters in the particular circumstances, where no claim had been made and when Mrs Tinsey expressly decided not to claim Newstart Allowance.
Furthermore, the social security law is comprised of myriad provisions in a number of enactments that are amended from time to time. It is difficult to see how an assessment of which specific provisions might apply in a particular case without a claim being made setting out details of the prospective claimant’s circumstances and income. As I have said, there are difficulties attaching to Centrelink officers providing informal advice about eligibility in such circumstances and it is not reasonable to expect Centrelink to provide information about the effect of amendments to prospective claimants, where no claim has been made and any particular amendment may or may not be applicable in the particular circumstances of the person.
There is no doubt in my mind that if Mrs Tinsey had lodged a claim for Newstart Allowance prior to 1 July 2007, albeit with a medical certificate perhaps, as she did in August 2007, her case would have been within the terms of the transitional provisions set out in s 136 of Schedule 1A of the Social Security Act. But, even though this option was discussed with her in April and June 2007, she decided not to do so until 24 August 2007. That was a matter for her.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
...........................[sgd]..........................................
Associate
Dated 10 May 2013

Date of hearing 11 April 2013

Date final submissions received 6 May 2013

Applicant In person

Advocate for the Respondent Mr G. Lozynsky

Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch

[19] T1 folio 43.

[2013] AATA 290

10 May 2013

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Administrative Errors

Deductible Amount

Compensatory Damages

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2800
Re	Catherine Tinsey
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	10 May 2013
Place	East Maitland, NSW

Date of hearing	11 April 2013
Date final submissions received	6 May 2013
Applicant	In person
Advocate for the Respondent	Mr G. Lozynsky
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch