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

[2007] AATA 1570

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1570

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/843      

GENERAL ADMINISTRATIVE DIVISION			)
Re           BRIAN CLARK

Applicant

And         SECRETARY, DEPARTMENT    OF FAMILIES, COMMUNITY   SERVICES and INDIGENOUS   AFFAIRS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date23 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

…………[SGD]…………………  

RG Kenny

Member

CATCHWORDS

SOCIAL SECURITY – age pension – qualification requirements – need for a claim to be lodged – discussion at Centrelink office not sufficient – requirements not met – decision affirmed

Social Security Act 1991 (Cth) ss 23, 43
Social Security (Administration) Act 1999 (Cth) ss 11, 16, schedule 2 cl 3

REASONS FOR DECISION

23 July 2007     Mr RG Kenny, Member

Application

1.      On 7 February 2006, Brian Clark (the applicant) was granted the age pension with effect from that day.  Mr Clark sought to have payments backdated but this was rejected by an authorised review officer with Centrelink on 14 September 2006.  That decision was affirmed by the Social Security Appeals Tribunal on 30 October 2006. He now seeks review by the Administrative Appeals Tribunal.

Applicant’s case

2.      Mr Clark gave the following evidence.  He considered that age pension should have been payable to him from 15 January 2002.  He attended the Caboolture office of Centrelink on that date.  At that time, he spoke with a Centrelink officer named John about his age pension entitlements.  He took with him information about his Comsuper payments.  He had not previously been a recipient of income support payments under the Social Security Act1991 (the Act) and, accordingly, Centrelink had no file in his name.  John advised him that his income level was too high to be eligible for the age pension and that it would be a waste of time to complete any claim form.  Mr Clark relied upon this advice.  On 7 February 2006, he attended the Centrelink office in Kingaroy and made reference to the age pension.  On this occasion, he was given a claim form which he completed and lodged on that day.  Age pension payments were paid to him from then on. 

Respondent’s case

3.      Mr Avery submitted that there was no material in the Caboolture or any other Centrelink office which supported Mr Clark’s references to a contact with personnel in January 2002. He submitted that this matter fell to be determined under the relevant provisions of the Social Security (Administration) Act 1999 (the Administration Act). Further, he submitted that the earliest commencement date for age pension in Mr Clark’s case was the date of lodgement of his claim. He submitted there were no factors which would enable this to be extended.

Consideration

4. The qualification criteria for the age pension are set out in s 43 of the Social Security Act 1991 (the Act).  It is not disputed that Mr Clark would have met those requirements on his 65^th birthday.  However, meeting the qualifying criteria is, in itself, not sufficient for the age pension to be paid to him.

5. Age pension is a form of social security pension and social security payment in accordance with s 23 of the Act. Section 11 of the Administration Act provides that, as a general rule, a person who wants to be granted a social security payment must make a claim for it in accordance with the Administration Act. Section 16 of the Administration Act sets out the ways in which a claim for a social security payment may be made. This is done by lodging a written claim in the form approved by the respondent. This was done by Mr Clark on 7 February 2006. The start day for the purposes of the social security law is calculated in accordance with schedule 2 of the Administration Act. In that schedule, clause 3 provides, where a person who makes a claim for social security payment is qualified for the payment on the date of claim, the start day is the day of claim.

6.      The only claim form in Mr Clark’s case is that lodged on 7 February 2006. In the absence of any prior claim, age pension is not payable to him before that lodgement date.  Moreover, there is no statutory discretion which I am able to exercise in order to enable the age pension to be paid to him from any earlier date.

Decision

7.      The decision under review is affirmed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:…………[SGD]…………………………………….
           F. Kamst, Legal Research Officer

Date/s of Hearing  10 July 2007
Date of Decision   23 July 2007
The Applicant  was unrepresented
For the Respondent                  Mr B Avery, Departmental Advocate.