Colleen Menzies and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 521
[2013] AATA 521
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5459
Re
Colleen Menzies
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 24 July 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether start date of payment is correct – date of actual lodgement of claim form – earlier date on which application is deemed to be lodged – criteria not met – no discretion – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) ss 13, 16, 107
REASONS FOR DECISION
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
The decision of the Social Security Appeals Tribunal (SSAT) dated 25 October 2012 which affirmed Centrelink's decision that the Applicant was not entitled to receive Newstart allowance prior to 27 April 2012.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether the Applicant should be paid Newstart allowance prior to 27 April 2012.
BACKGROUND
On 5 December 2011 the Applicant telephoned Centrelink and discussed making a claim for Newstart allowance. Centrelink’s online record notes:
"Cus[tomer] stated is employed with their[ s]on working 50 hours per week as her ptr [partner] has a medical condition.
Cus[tomer] stated is not looking for work as she works 50 hours per week or more in their sons business being a full time book keeper with duties that involve completing BAS Statements, chasing up payments, washing trucks, collecting parts for motor vehicles, invoices customers, plus following up other duties..."
On the same day, Centrelink sent a letter to the Applicant which acknowledged her intention to make a claim.
On 6 December 2011 Centrelink sent a letter to the Applicant advising her of the documents that she would need to lodge if she wished to make a claim for Newstart allowance.
On the same day Centrelink sent a letter to the Applicant advising her that she was not entitled to be paid Newstart allowance as she was not considered to be unemployed. The letter advised the Applicant of her right to seek review by an Authorised Review Officer (ARO), and informed her that any request for review should be made within 13 weeks of being notified of the decision.
On 27 April 2012 the Applicant again contacted Centrelink in relation to making a claim for Newstart allowance. Centrelink sent a letter to the Applicant which acknowledged her intention to make a claim. According to the SSAT decision, the Applicant and her husband ('Mr Menzies') attended a Centrelink office in Port Macquarie later that day and lodged a claim for payment of Newstart allowance.
On 28 April 2012 the Applicant contacted Centrelink and made a verbal statement which Centrelink recorded as follows:
I Colleen Anne Menzies confirm that I have not been employed for the past 30 years. During this time I have been supported by my partner however due to a medical condition he is no longer able to work...
Centrelink accepted the Applicant's claim with effect from 27 April 2012, the date of contact.
On 23 May 2012 Mr Menzies contacted Centrelink and requested review of Centrelink's decision dated 6 December 2011 to reject the Applicant's claim for Newstart allowance. Mr Menzies stated that the decision was incorrect as the Applicant was not working at the time. He advised Centrelink that they did not receive a letter about the rejection of the Applicant's claim for Newstart allowance. On internal review Centrelink determined that the decision to reject the Applicant's claim for Newstart allowance on 5 December 2011 was correct, and even if a decision favourable to the Applicant had been made, the earliest date from which Newstart allowance could have been paid was 23 May 2012, which was after the date on which the Applicant had been granted Newstart allowance, namely 27 April 2012. That decision was affirmed by the SSAT.
CONSIDERATION
I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. The parties agreed that the decision could be made on the papers.
The relevant legislation is to be found in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 ('the Administration Act').
Did the Applicant make an effective claim for Newstart allowance?
I do not understand there to be any dispute that the Centrelink record of the telephone conversation of 5 December 2011 is an accurate record of the conversation. It was recorded that the Applicant advised that she was not looking for work because she was working 50 hours per week.
Centrelink records also note that in that discussion the Applicant was informed that if she wished to appeal Centrelink's decision, she would need to lodge various verification documents, including a customer declaration form (the approved form for claiming Newstart allowance).
Section 11 of the Administration Act provides that a person who wants to be granted a social security payment; must make a claim for the payment or card in accordance with s 16 of the Administration Act which provides:
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.
The Applicant did not lodge a written claim in accordance with s 16 of the Administration Act. Neither the ARO nor the SSAT discussed whether the Applicant had made a valid claim for Newstart allowance.
I appreciate that it may appear somewhat odd to Mrs Menzies that, having been told on the phone that she was not eligible for Newstart allowance, was expected to nonetheless make a claim which would then be formally refused, and only then would she have a decision from which she could seek review. However, as an Application for Newstart allowance can only be made in accordance with s 16, and she has not done so, hence she had made no valid claim. The letter of 6 December 2011 purporting to be a decision to reject the claim was therefore a nullity.
Even if I were able to find that the Applicant had made a valid application by virtue of the telephone conversation, and that she was informed at that time that she had no entitlement to Newstart allowance, her position is not assisted. Centrelink claims that it sent her a letter on 6 December 2011 informing her that that she had no entitlement to Newstart allowance. Section 107 of the Administration Act deems the Applicant to have received that letter if it were sent to her last known address, which from the records it was. A rejected claimant has 13 weeks in which to seek review of a decision. The Applicant took no steps to seek any review of that decision until the next contact on 27 April 2012, which is well outside the 13 week period. In fact that contact was somewhat equivocal and is more in the nature of a fresh enquiry. Centrelink records that a request for a review was first made on 23 May 2012. Even if I were find that it is possible to consider the contact of 27 April 2012 as a request for review that date, as I have discussed above, is more than 13 weeks from her contact of 5 December 2011 and the purported ‘decision’ of 6 December 2011.
I find the earliest date from which Mrs Menzies can be paid Newstart allowance is 27 April 2012, and there is no legislative basis on which she can be paid arrears.
Notwithstanding the decision I must make, I accept that Mrs Menzies may have found her dealings with Centrelink to be confusing and frustrating. However, it was entirely unclear why Mrs Menzies may have continued to endure some financial hardship when she could have contacted Centrelink to follow up on her earlier contact.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. ......[Sgd]..................................................................
Associate
Dated 24 July 2013
Date of hearing 22 July 2013 Applicant In person Solicitors for the Respondent C Hutchins, DHS Litigation Review Branch
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