Dewan and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 24
•10 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 24
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/707
GENERAL ADMINISTRATIVE DIVISION ) Re ASMA DEWAN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms Naida Isenberg, Senior Member Date10 January 2008
PlaceSydney
Decision The decision under review is affirmed.
..…………[sgd]……………
Ms Naida Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – parenting payment (partnered) – whether start date can be backdated – no written notice acknowledging contact – no claim lodged within required time period – medical condition of gestational diabetes – care for disabled daughter – special circumstances – incapacitated claimant – decision under review affirmed.
Social Security (Administration Act) 1999 – sections 11, 13, 16, 29 and Schedule 2
REASONS FOR DECISION
10 January 2008 Ms Naida Isenberg, Senior Member DECISION UNDER REVIEW
1. Mrs Dewan (“the Applicant”) seeks review of a decision made by a Centrelink Authorised Review Officer on 27 November 2006 to pay Parenting Payment (Partnered) (“PPP”) from 28 February 2006, and not from any earlier date. This decision was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 5 February 2007.
BACKGROUND
2. Mrs Dewan received PPP from 1996 until 2004, when it was cancelled on the basis of her earnings and other income.
3. On 29 August 2005, Mrs Dewan resigned from her employment when she was pregnant with her fourth child.
4. On 31 August 2005, Mrs Dewan’s husband, Mr Nazrul Islam, attended Blacktown Centrelink office and completed a fortnightly claim for Newstart Allowance.
5. On 3 January 2006, Mrs Dewan and her husband lodged a Claim for Maternity Payment, Maternity Immunisation Allowance and Family Tax Benefit (“FTB”) in respect of their baby.
6. On 28 February 2006, Mr Islam contacted Centrelink to enquire about FTB. Mr Islam was informed that his wife had not received parenting allowance since 25 November 2004.
7. On 1 March 2006, Mrs Dewan contacted Centrelink regarding a claim for PPP. On the same day Centrelink wrote to her confirming the contact.
8. On 16 March 2006, Mrs Dewan lodged a PPP claim form and payment was granted with effect from 28 February 2006. The decision to pay from 28 February 2006, and not an earlier date, was affirmed on internal review and by the SSAT.
ISSUE BEFORE THIS TRIBUNAL
9. The issue before the Tribunal is whether the start date of Mrs Dewan’s PPP can be an earlier date than 28 February 2006.
LEGISLATION
10. The relevant legislation is contained within the Social Security (Administration Act) 1999 (“the Administration Act”).
11. The only way of making a claim is to lodge a written claim pursuant to subsections 16(1) and (2) of the Administration Act. Lodging a written claim is done by an approved form being delivered to a person or place approved by the Secretary: subsection 16(4).
12. Once a valid claim has been made, and the claimant meets the qualification criteria, the social security payment start date is worked out in accordance with Schedule 2 of the Administration Act. Generally, the start date for payment is the day on which the claim is made: clause 3 in Schedule 2. Clause 11, however, provides an exception by making provision for an incapacitated claimant’s start date to be backdated, provided each of the following sub-elements are met:
11 Incapacitated claimant
…
(2) If:
(a)a person becomes incapacitated for work as a result of a medical condition; and
(b)the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and
(c) the Secretary is satisfied that:
(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and
(ii) the medical condition was the sole or principal cause of the person’s failure to make the claim within 5 weeks after the day on which the incapacity began;
the person’s start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.
13. Section 13 of the Administration Act also contains provisions which allow the start date to be backdated. Provided all the requirements in subsection 13(1) are satisfied, the date the Department was contacted about a claim for a social security payment is deemed to be the date the claim was made. Section 13 provides, so far as is relevant, that:
13(1) 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; 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.
13(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
(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 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.
13(3) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b)the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii)throughout that period, the other person suffered from a medical condition; and
(iii)the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;
the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.
13(3A) 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; 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 more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) 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.
CONSIDERATION OF THE EVIDENCE
14. In coming to the correct and preferable decision, I considered all the evidence, submissions, case law and relevant legislation.
15. Mrs Dewan told me that her casual job picking mushrooms required her to reach up high and climb on a “trolley”. When she was in about her fifth month of pregnancy her doctor advised her to give up work, and she finished on 16 August 2005.
16. Mr Islam said that he was obliged to attend Centrelink fortnightly to claim his Newstart Allowance. His wife went with him on 31 August 2005. Mr Islam said there was no need for his wife to attend Centrelink with him in respect of his Newstart Allowance, and had done so on this occasion in order to enquire about PPP. They were “very aware” of having to tell Centrelink if their circumstances changed so he told the Centrelink Customer Service Officer (“CSO”), who he believed was named “Sonia”, that his wife was no longer working. Mr Islam said they gave his wife’s name and her reference number to the CSO, but it was just not recorded. He asked if they needed to do anything more. They were told they would be “getting payments”, by which they understood PPP. They understood they would not need to lodge PPP claim forms. It was of no surprise that no forms or any letter were sent to them, because they believed that there was nothing more for them to do.
17. Centrelink acknowledged that Mrs Dewan’s customer record does not record a contact for 31 August 2005 although Centrelink’s records for Mr Islam confirm the contact on that date in respect of his Newstart Allowance. The note of the contact does not record the CSO who attended Mr Islam, unlike the entries for other dates.
18. I was impressed with Mr Islam and Mrs Dewan’s adamant contention that they knew they were to advise Centrelink of every change in their circumstances and that they believed they had done so.
19. However, I am obliged to apply the legislation in respect of the appropriate start date. Even if the contact with Centrelink in August 2005 is taken as a claim for PPP, the Secretary did not give the applicant a written notice acknowledging that contact had been made in respect of a claim, as provided in subsection 13(1) of the Administration Act.
20. More relevantly, the Respondent contends that because Mrs Dewan did not lodge a claim form within 14 days of the date of contact, the deemed claim provisions in subsection 13(1) of the Administration Act do not apply.
21. I considered if Mrs Dewan was suffering from a medical condition, and whether that medical condition, or circumstances related to that medical condition, had a significant adverse effect on her ability to lodge the claim earlier: subsection 13(2).
22. Mrs Dewan gave evidence that she suffered gestational diabetes (“pregnancy diabetes” as she described it). I considered whether, throughout the period starting on the day on which the Department was contacted (31 August 2005) and ending on the day on which the claim was lodged (16 March 2006), she might have been unable to lodge a claim form.
23. Her evidence, however, was that while her elder children and her husband assisted in household chores she would go to the shops “for an outing”. On her doctor’s advice she did plenty of walking. I do not consider that the gestational diabetes had a significant adverse effect on her ability to lodge the claim earlier.
24. Following the birth, the diabetes resolved. Although Mrs Dewan had undergone a caesarean birth, she was able soon after to attend to her family. I do not consider that the birth had a significant adverse effect on her ability to lodge the claim earlier. In any event, I do not consider childbirth, without complications, to amount to “a medical condition”.
25. I note, too, that subsection 13(2) has the same requirements for the Secretary to give a written notice acknowledging that contact had been made in respect of a claim, as in subsection 13(1) of the Administration Act. There is also the requirement for the claim to be lodged within 13 weeks after contact, and this did not occur.
26. I considered if subsection 13(3) of the Administration Act might apply. Mrs Dewan gave evidence that throughout the period, starting on the day on which the Department was contacted and ending on the day on which she lodged the claim, she was caring for her disabled daughter, who requires continual care. However, the evidence was that the daughter could go to school, except for an average of about one day per week when she was ill. I do not consider that Mrs Dewan’s care of her daughter had a significant adverse effect on the applicant’s ability to lodge the claim earlier. In any event, subsection 13(3) has the same requirements for the Secretary to give a written notice acknowledging that contact had been made in respect of a claim, as in subsection 13(1) of the Administration Act. There is also the requirement for the claim to be lodged within 13 weeks after contact, and this did not occur.
27. I considered if subsection 13(3A) of the Administration Act applied. I do not consider that there were special circumstances in this case, such that it was not reasonably practicable for Mrs Dewan to lodge the claim earlier. Again, subsection 13(3A) contains the same notice and time requirements as discussed above.
28. Finally, I considered if Mrs Dewan might obtain the benefit of section 11 of the Administration Act in respect of incapacitated claimants. While Mrs Dewan may have become incapacitated for work as a result of a medical condition and she “made a claim” more than five weeks after the day on which the incapacity began, she did not continue to suffer the medical condition from the day on which the incapacity began until the claim was made. In any event, the medical condition was not the sole, or principal, cause of her failure to make the claim within five weeks after the day on which the incapacity began: she did not lodge a claim because she did not think she had to.
29. There is therefore no basis on which Mrs Dewan’s claim can be backdated beyond 28 February 2006.
OTHER OBSERVATIONS
30. In the course of the hearing the advocate for the Respondent noted that the Applicant has brought a claim for compensation for Detriment Caused by Defective Administration. I make the following observations which may be relevant in the consideration, elsewhere, of that matter.
31. I accepted the evidence of Mrs Dewan and Mr Islam, who impressed me as genuine and hard working citizens, who had an honest belief that they had no more to do to have the PPP reinstated. As Mr Islam said, there was no need for his wife to attend Centrelink with him in respect of his Newstart Allowance. He said they gave his wife’s name and her reference number to the CSO, but it was just not recorded. It was of no surprise that no acknowledgment letter or claim forms were sent out to them because they believed that there was nothing more to do. I was impressed with their adamant contention that they knew they were to advise Centrelink of every change in their circumstances and that they had a genuine belief that they had done so. No evidence was called by Centrelink to contradict their contentions.
32. Mrs Dewan’s main concern is that she believed she had an entitlement to PPP from a much earlier time than that which the legislation allows, given her advice to Centrelink on 31 August 2005 that her circumstances had changed.
33. I have accepted that Centrelink was notified of her circumstances. No notation was made on her file and no written notice acknowledging that contact had been made in respect of a claim. This alone would be fatal to her claim to have her PPP backdated to 31 August 2005. That error was not of her doing but was a mistake by Centrelink staff.
DECISION
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member
Signed: [sgd]
AssociateDate of Hearing 21 December 2007
Date of Decision 10 January 2008
Representative for the Applicant Self-represented
Representative for the Respondent Ms Glenda Heggen, Centrelink Legal Services
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