Day and Secretary, Department of Family and Community Services

[2005] AATA 671

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 671

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/960

GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILIP DAY

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date14 July 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  This means Mr Day's application for review is unsuccessful.

...................[Sgd]...........................

EK Christie
  Member

CATCHWORDS

SOCIAL SECURITY - newstart allowance claim - Tribunal's power to backdate newstart allowance to an earlier date

Social Security (Administration) Act 1999 ss 11, 12, 13

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Burgess v Secretary, Department of Family and Community Services [2004] FCA 136

REASONS FOR DECISION

14 July 2005 Dr EK Christie, Member     

1.      This is an application by Philip Day for a review of the decision made by the Social Security Appeals Tribunal (“the SSAT”) on 29 November 2004 that granted Mr Day newstart allowance from 1 October 2004.  Mr Day’s employment with Brisbane Real Estate Pty Ltd was terminated on 17 September 2004.  Mr Day’s application for review is for payment of newstart allowance to commence from a date prior to 1 October 2004.

2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1].

3.      The applicant represented himself at the hearing and elected to appear by conference telephone and not in person.  The respondent was represented by Ms C Heffner, a Departmental Advocate.

Issues Before The Tribunal

4.      The only issue for the Tribunal to decide was whether Mr Day can be paid newstart allowance from any date prior to 1 October 2004.  The relevant legislation to decide Mr Day’s application is the Social Security (Administration) Act 1999 (“the Act”).

Facts

5.      Mr Day acknowledged the following facts at the commencement of the hearing:

(a)that he had contacted Centrelink in relation to making a claim on 1 October 2004;

(b) that he had lodged a claim for newstart allowance on 4 October 2004; and

(c)that he had not received any social security entitlements prior to receiving newstart allowance on 1 October 2004.

6.      At the commencement of the hearing, Mr Day acknowledged that the information he had provided at the hearing before the SSAT was correct.  The “Summary of Information” provided at the SSAT hearing was as follows:

“.       Before his employment was terminated, [Mr Day] was not given three warnings as required.  After he finished work, a union representative who also worked for the same real estate agency contacted him and told him that he was entitled to certain allowances such as two and a half weeks holiday pay and that he should have been given three official warnings before his employment was terminated.

.[Mr Day] did not apply to Centrelink earlier because he thought he would receive his entitlements from his employer.  In the end the employer told him that if he pursued his entitlements then he would not give Mr Day a positive reference should a prospective employer contact him.

.During the time that he waited to receive the allowances from his previous employer his savings were sent down South due to family circumstances.”  [T2, folios 5, 6]

7.      The respondent’s position in relation to the facts have been summarised in the Statement of Facts and Contentions prepared by Ms Heffner which were sent to Mr Day on 16 May 2005 and filed with the Tribunal on 18 May 2005.

8.      On the basis of the following facts -

(a)17 September 2004:  Mr Day’s employment with Brisbane Real Estate Pty Ltd was terminated (T4, folio 15);

(b)1 October 2004:  Mr Day contacted Centrelink regarding a claim for newstart allowance (T5, folio 16).  On the same day he was sent a notification letter (T6, folios 17-19);

(c)4 October 2004:  Mr Day attended Centrelink and lodged a preliminary claim form (T7, folios 20-21) and on 11 October 2004, Mr Day attended his newstart allowance new claim interview (T9, folios 23-26);

(d)11 October 2004:  Centrelink decided to grant Mr Day newstart allowance from 1 October 2004 (T11, folio 28),

Ms Heffner submitted that:

(i)Mr Day qualified for newstart allowance (under section 593 of the Act) on the date he contacted Centrelink, i.e. 1 October 2004.

(ii)Mr Day was provided with a written notice by Centrelink, acknowledging this contact, by way of the notification letter dated 1 October 2004.

(iii)Mr Day lodged his claim with Centrelink on 11 October 2004 – which was within the prescribed statutory period of 14 days of his initial contact on 1 October 2004.

(iv)That there were no provisions within the Act that would permit Mr Day’s claim for newstart allowance to be backdated to his termination date (17 September 2004); and

(v)The earliest possible date that he could receive newstart allowance was 1 October 2004.

The Tribunal’s Decision-Making Powers

9.      “The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal:  see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]”. There is only one decision possible in this application for review: whether Mr Day’s newstart allowance can be backdated to an earlier date – the date his employment was terminated on 17 September 2004.

10.     Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time:  see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal considers all the evidence and information before the Tribunal at the date of the hearing.

Statutory Requirements

11.     As stated by Wilcox J in Burgess v Secretary, Department of Family and Community Services [2004] FCA 136:

“12.     I think it is clear that the general scheme of the legislation is to fix the commencement date for benefits by reference to the first day on which the Department is contacted by or on behalf of the applicant, provided the person lodges a formal claim within 14 days of that first contact.”

12. Section 11(1) of the Act states that a person who wants to be granted a social security payment must make a claim for the payment. Mr Day has complied with this requirement.

13. Section 13 of the Act requires the date of first contact about a claim for social security payment to be taken as the date the claim is made, when certain requirements are satisfied. Section 13(1) of the Act is the relevant subsection in this case and sets out the following requirements:

“(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.”

14.     Applying the statutory requirements to Mr Day’s factual situation, Mr Day first contacted Centrelink about making a claim for newstart allowance on 1 October 2004.0  He lodged his claim on 4 October 2004 as well as attending his newstart allowance new claim interview on 11 October 2004 i.e. both dates were within 14 days after he contacted Centrelink.

15. In addition, Centrelink complied with its statutory requirements under section 13(1) of the Act by giving Mr Day a written notice [on 1 October 2004] acknowledging his contact made on 1 October 2004.

Consideration Of The Issues

16. On consideration of the above facts in relation to the statutory requirements imposed by section 11 and section 13 of the Act, the Tribunal concludes that, in Mr Day’s situation, all of the statutory requirements have been adhered to by both Mr Day and Centrelink. Given the statutory requirements and the relevant dates (see paragraphs 5, 8 and 14), the Tribunal can make no other finding than to conclude that Mr Day has made a claim for newstart allowance on 1 October 2004. As a result, the date Centrelink decided to grant him newstart allowance from 1 October 2004, is correct.

17. Given that Mr Day was not legally represented, the Tribunal has carefully considered provisions under the Act that may give the Tribunal discretion to backdate the time Mr Day’s newstart allowance commenced e.g. to the date his employment was terminated on 17 September 2004.

18. In this regard, the Tribunal has considered section 12(3) of the Act and the decision of Wilcox J in Burgess’ case (26 March 2004). The judicial analysis in this case makes it clear that section 12(3) of the Act may provide an exception – but only in quite a specific factual situation. That is, where a person is receiving an income support payment and while receiving the payment becomes qualified for another income support payment and, in turn, the Secretary determines that the person is to be transferred to the other payment.

19. However, in Mr Day’s factual circumstances, section 12(3) of the Act cannot be applied. He commenced newstart allowance on 1 October 2004. Mr Day acknowledged, at the commencement of the hearing, that he did not receive any other social security entitlements prior to receiving newstart allowance on 1 October 2004 i.e. between the termination of his employment on 17 September 2004 and the date newstart allowance commenced, 1 October 2004. Therefore, there can be no transfer from one income support payment to another for the period 17 September 2004 to 1 October 2004 and so section 12(3) of the Act does not assist Mr Day.

20. The Tribunal further considered section 15 of the Act as it permits backdating, subject to some qualifications, where a person makes an “incorrect claim”. However, this section of the Act cannot assist Mr Day as there is no indication that newstart allowance was not the correct benefit to be paid to him at the time he became unemployed.

21. Because neither section 12(3) nor section 15 of the Act has any application to Mr Day’s factual situation, the Tribunal has no power under the Act to backdate payments of newstart allowance to the termination date of Mr Day’s employment.

22.     The Tribunal makes the observation that:

“A person who is claiming a Newstart Allowance may also be subject to a waiting period before payments can commence.  In [Mr Day’s] case, as it was determined that you were in severe financial hardship, your normal waiting period was waived.” (T17, folio 39)

23.     For all of the Tribunal’s reasons, the decision under review is affirmed.  The earliest possible date for Mr Day to receive newstart allowance is 1 October 2004.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:                 Denise Burton

Administrative Assistant

Date/s of Hearing  1 July 2005
Date of Decision  14 July 2005      
The Applicant appeared by conference telephone
For the Respondent                  Ms C Heffner, Departmental Advocate