Connor and Secretary, Department of Social Services (Social services second review)

Connor and Secretary, Department of Social Services (Social services second review) [2021] AATA 1768 (16 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7636
Re:Brian Connor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:16 June 2021
Place:Sydney

The correct and preferable decision is to set aside the decision under review and in substitution find that the Applicant was entitled to receive JSP from 29 March 2020.
..........................[sgd]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
JOBSEEKER PAYMENT – application for Jobseeker to be backdated – Coronavirus Economic Response - Intent to Claim determination – medical condition causing significant adverse effect on ability to lodge claim –special circumstances – decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Coronavirus Economic Response Package Omnibus Act 2020 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bortolazza v Comcare [1997] FCA 515, (1997) 75 FCR 385
SECONDARY MATERIALS
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018
Social Security (Coronavirus Economic Response – 2020 Measures No. 1) Determination 2020
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
xx June 2021

The Applicant seeks review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) dated 22 October 2020, which affirmed a decision of an Authorised Review Officer (ARO) made on 2 September 2020.
The ARO affirmed a decision made by Centrelink on 14 May 2020 to grant the Applicant’s JobSeeker Payment (JSP) from the 14 May 2020.
The Applicant completed an online claim form for JobSeeker Payment (JSP) on 14 May 2020, and it was duly approved from that date.[1] The Applicant asked for his payments to be backdated to 29 March 2020, his date of first contact with Centrelink for the purpose of making a claim. His request was rejected by Centrelink, the Authorised Review Officer (ARO) and the Social Services and Child Support Division of the Tribunal (AAT1).
[1] T4/32; T10/ 48.
The matter was heard by the Tribunal by teleconference on 14 May 2021. No witnesses were called and the applicant was self-represented.
The Respondent provided the Tribunal with materials relating to the matter pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The Applicant says that he is in his sixties and infirm in that he suffers from a heart condition, and that the pandemic created circumstances beyond his control which affected his ability to make a claim. He said that he had not previously claimed any social security benefits and had been living on his superannuation after he finished work but that it was now all used up. He said that he had seen the Prime Minister on television warning people not to go into Centrelink because of the pandemic. He was not computer savvy and relied upon his friend Jasmine in his dealings with Centrelink. He said that he was reassured by a Centrelink officer that he was entitled to have his claim backdated to the date of first contact.
There is no doubt that the Applicant’s friend Jasmine, acting as his agent, contacted the Department on 29 March 2020. The Applicant said that this was for the purpose of making a claim on his behalf. He said that Centrelink told Jasmine that the first step was to “get him onto the system”, and to that end, he subsequently provided Centrelink with the necessary documents to establish his identity. A Centrelink file note records that on 29 March 2020 he lodged “intent to claim JSP”.[2]
[2] T9/56
The relevant law is to be found in:
(a) the Social Security (Administration) Act 1999 (the Administration Act);
(b) the Social Security (Coronavirus Economic Response – 2020 Measures No. 1) Determination 2020 (the Coronavirus Determination); and
(c) the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Claim Determination).
The general rule that a social security payment commences on the date of claim.[3] There are however exceptions to this general rule. The Applicant says that his case comes within those exceptions.
[3] Administration Act, Schedule 2, Clause 3
I accept on the basis of his evidence and the Centrelink file note that he did (by proxy) make contact with Centrelink on 29 March 2020 and expressed an intention to lodge an application for JSP.
I also note that he attended a Centrelink office in person for the purpose making a claim on 12 May 2020, returning on 14 May 2020 with a complete set of documents including passport, photo card and banking passbook.[4]
[4] T9/47.
I find that he made a valid written claim on 14 May 2020.[5]
[5] T4/32
The question for determination is whether his start date should be backdated to 29 March 2020, when he made first contact.
RELEVANT LEGISLATION
The Coronavirus Determination
In 2020 Parliament enacted the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (the Omnibus Act). Item 40A of Schedule 11 of the Omnibus Act authorised the Minister to determine by legislative instrument that a provision that relates to the qualification of persons for social security payments, is varied as specified in the determination.[6]
[6] See Appendix A.
The Social Security (Coronavirus Economic Response – 2020 Measures No. 1) Determination 2020 (the ‘Coronavirus Determination’) was duly made under item 40A. It is headed: Additional support for income support recipients. It came into effect on 25 March 2020.[7] I note that item 40A stated:
(2) The Minister must be satisfied that the determination is in response to circumstances relating to the coronavirus known as COVID‑19.
…
(5) An instrument made under this item has no operation after 31 December 2020.
(6) This item is repealed on 31 December 2020.
[7] T3/26
The temporary measures introduced in response to the pandemic permit variation of the claim date due to the pandemic. Specifically, section 13 of the Administration Act was varied by inserting two new provisions after subsection 3A, including subsection 3C which states:
(3C) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment on a particular day (the contact day); and
(b)the contact day occurs during the period starting on 23 March 2020 and ending on 29 March 2020; and
(c)the person:
(i)     is, on the contact day, qualified for the social security payment; or
(ii)    becomes, on a later day, qualified for the social security payment; and
(d)the person lodges a claim for the social security payment no later than 8 May 2020;
the person is taken to have made a claim for the social security payment:
(e)if the person was qualified for the payment on the contact day – on 23 March 2020; or
(f)if the person was qualified for the payment on a later day – on the later day.
The Applicant’s friend Jasmine made contact with Centrelink on 29 March 2020. This is accepted by Centrelink as the date he expressed an intention to make a claim. He did not however lodge a written claim until 14 May, six days after the cut-off date of 8 May 2020 specified in the Coronavirus Determination. There is no discretion to vary this cut-off date. Unfortunately, this special measure does not apply to the Applicant.
The Intent to Claim Determination
There is however a separate mechanism that may be relied upon to vary the effective date of claim.
Section 13 of the 'the Administration Act is entitled Deemed claim--person contacting Department about a claim for a social security payment. Section 13 sets out various circumstances where a person contacts Centrelink about a claim for a social security payment.[8] The relevant subsections are extracted below:
[8] T3 /12 -13
Deemed claim--person contacting Department about a claim for a social security payment
…
(2) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(aa)the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(d)the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that:
(i)      throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii)    that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…
(3A) For the purposes of the social security law, if:
(f) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(g)the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(h)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(i)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(j)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(4) A reference in this section to the Department being contacted includes a      reference to the Department being contacted by post or telephone or by the         transmission of a message by the use of fax, computer equipment or other     electronic means.
Section 13 applies only to the persons specified in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Intent to Claim Determination).
The Intent to Claim Determination is made under section 14A of the Administration Act and commenced on 1 July 2018.
The classes of person specified in the Intent to Claim Determination are as follows:
5 Class of persons to whom sections 13 and 14 of the Act apply
For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) and 14(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:
(k)subject to domestic or family violence;
(l) homeless;
(m)hospitalised or suffering from a temporary incapacity arising from a medical condition;
(n)released from prison or psychiatric confinement;
(o)experiencing high stress associated with a relationship separation;
(p)a parent of a dependent child born during the relevant period;
(q)affected by the death during the relevant period of an immediate family member;
(r)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;
(s)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;
(t)a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or
(u)subject to other special circumstances beyond the person’s control.
I note that under the Intent to Claim Determination, ‘contact day’ means the day on which the Department is contacted by or on behalf of a person in relation to a claim for a social security payment or concession card; and ‘relevant period’ means the period of 8 weeks ending on the contact day.
If the Applicant is a member of any of the classes specified, then he is entitled to be considered under the ‘deemed claim’ provisions contained in section 13.
As noted above, the Applicant (through his agent, Jasmine) first contacted Centrelink on 29 March 2020.
Dr Thompson, for the Respondent, argued that section 13(2) and (3A) have no application to circumstances arising by reason of the pandemic relating to COVID-19. Such cases could only be considered under subsection 13(3C) of the Administration Act (which is no longer in force - see paragraph 16 above].
It is accepted that the Applicant cannot rely on subsection 13(3C) given that his formal application was made outside the permitted time frame. The Tribunal was asked to conclude that it was the intention of Parliament in passing the Coronavirus Determination to convey an intention to restrict any factors pertaining to a delayed claim arising from the pandemic to subsection 13(3C).
I do not think that the statutory provisions should be construed in that way.
The Coronavirus Determination was passed as part of the Government’s broad response to the pandemic. It applied to any person who contacted Centrelink between 23 and 29 March and completed a valid claim before the cut-off date of 8 May. It was aimed to alleviate the well-publicised problems of large queues outside Centrelink offices. Unlike the Intent to Claim Determination, it was not specifically tailored to the special circumstances of individual claimants.
I note that under item 40A(5) the Coronavirus Determination ‘has no operation after 31 December 2020’. The effect is that subsections 13(3B) and 13(3C) are repealed.
I also note that as social legislation, one should construe the provisions in a beneficent manner. In Bortolazza v Comcare [1997] FCA 515, (1997) 75 FCR 385 at 388, Heerey J stated:
I accept the submission of counsel for the applicants that the Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees ...
It seems to me that the strict construction urged on the Tribunal is at odds with this approach.
There is an additional complication. The Intent to Claim Determination refers to certain classes of persons who are ‘unable to lodge a claim on the contact day because, at any time during the relevant period, the person is…’. The Determination then specifies various classes of persons. Does this raise a prior question of fact as to whether any person falling within the designated groups was ‘unable’ to lodge a claim?
I do not read the words ‘unable to lodge a claim’ in the Intent to Claim Determination so as to qualify or read down the statutory words in section 13. The test is not whether a person falling within one of the specified classes was in fact unable to lodge a claim, but whether such a designated person satisfies the requirements of section 13.
As noted above, subsection 13(2) applies where the medical condition from which the applicant was suffering had a significant adverse effect on the person's ability to lodge the claim earlier. A significant adverse effect suggests something less than a complete inability. Similarly, subsection 13(4) applies where, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier. Something that is not reasonably practicable may nevertheless be possible. In short, the words contained within the statute (‘significant adverse effect’ and ‘not reasonably practicable’) are not further qualified by the words ‘unable to lodge a claim’ in the Determination. The statutory words in section 13 should not be qualified or read down in such a fashion.
The Applicant suffered from a medical condition relating to heart operation he had some years ago. He was not comfortable with online processes and relied heavily on a friend in his dealings with government bureaucracy. He says that he received information from multiple sources to avoid high density areas and specifically Centrelink offices.
I am satisfied that as a vulnerable person in his sixties with a heart condition he was ‘subject to other special circumstances beyond his control’ and as such falls within paragraph 5(k) of the Intent to Claim Determination.
Subsection 13(2) applies where the application was lodged within 13 weeks of the initial contact and the person was suffering from a medical condition; and that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier. I am satisfied that as a designated person in his sixties he was suffering from a medical condition relating to his heart and circumstances related to that medical condition had a significant adverse effect on his ability to lodge the claim earlier.
I am also satisfied that in the special circumstances of the case, it was not reasonably practicable for him to lodge the claim earlier, despite it being potentially possible. Subsection 13 (3A) applies where, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier.
The Applicant lodged his written claim on 14 May, which is not more than 13 weeks, after the Department was first contacted on 29 March 2020. Under section 13(2) or subsection 13(3A) he is taken to have made a claim for JSP on the day on which the Department was contacted, that is, 29 March 2020.
I find that subsection 13(2) and 13(3A) of the Administration Act apply. The application of these provisions in the specific facts of this case is not precluded by the now repealed provisions of the Administration Act that were temporarily inserted by the Coronavirus Determination.
Finally, I note that the Applicant is a person who has come late to the social security system, having first relied heavily on his private superannuation savings.
DECISION
I am satisfied that the correct and preferable decision is to set aside the decision under review and in substitution find that the Applicant was entitled to receive JSP from 29 March 2020.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate
Dated: 16 June 2021

Date(s) of hearing: 14 May 2021

Applicant: Self-represented

Solicitors for the Respondent: Dr S Thompson (Services Australia)
APPENDIX A
Coronavirus Economic Response Package Omnibus Act 2020
2 Commencement
2(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Note: The provisions of a legislative instrument (the principal instrument) amended or inserted by this Act, and any other provisions of the principal instrument, may be amended or repealed by a legislative instrument made under the enabling provision for the principal instrument (see subsection 13(5) of the Legislation Act 2003).
Schedule 11—Additional support for income support recipients
40A Modifications of qualifications and payments under the social security law

(1) For any provision of the social security law relating to the qualification of persons for a social security payment, or to the rate of a social security payment, the Minister may, by legislative instrument, determine:
(a) for a provision that relates to the qualification of persons for a social security payment:
(i) that the provision is varied as specified in the determination; or
(ii) that the provision does not apply; or
(iii) that the provision does not apply and that another provision specified in the determination applies instead; or
(b) for a provision that relates to the rate of a social security payment:
(i) that the provision is varied as specified in the determination; or
(ii) that the provision does not apply and that a rate of payment specified in the determination applies instead.

(2)       The Minister must be satisfied that the determination is in response to circumstances relating to the coronavirus known as COVID‑19.
(3)       A determination under this item has effect accordingly.
(4)       In this item:
social security law has the same meaning as in the Social Security Act 1991.
social security payment has the same meaning as in the Social Security Act 1991.
(5)       An instrument made under this item has no operation after 31 December 2020.
(6)       This item is repealed on 31 December 2020.

[2021] AATA 1768

16 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	14 May 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Dr S Thompson (Services Australia)