Duncan and Department of Family and Community Services

[2000] AATA 858

DECISION AND REASONS FOR DECISION [2000] AATA 858

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/461
GENERAL  ADMINISTRATIVE  DIVISION)                 
           Re:     BRENT DUNCAN   

Applicant

And:    SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES            

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member         

Date:26 September 2000

Place:Melbourne

Decision:      The decision under review is set aside.   The Tribunal substitutes a decision that, from the first pay day in June 1999, the applicant is entitled to be paid youth allowance.

(sgd) H.E. Hallowes
           Senior MemberSOCIAL SECURITY —  youth allowance — whether claim form lodged — no record at Centrelink — advice received that applicant dependent full-time student — mother paid family tax payment
Social Security Act 1991 ss.5(6), 547, 548, 554, 554B, 900AA, 900AD
Re Flynn and Director-General of Social Security (1982) 4 ALN N282

Re Messina and Director-General of Social Security (AAT 1091, 20 June 1983)
Re Secretary, Department of Employment, Education, Training and Youth Affairs and Coward

(1997) 49 ALD 698

REASONS FOR DECISION

26 September 2000   Mrs H.E. Hallowes, Senior Member        

1. The only issue in this matter is when the applicant, Brent Duncan, lodged a claim for youth allowance. He was granted youth allowance payable from 3 December 1999, but it is his contention that he lodged a claim under sections 554 and 554B of the Social Security Act 1991 ("the Act") on or about his 16th birthday, 24 May 2000.

2. Brent was represented at the hearing by his mother, Mrs S. Duncan, and the Secretary was represented by Ms K. Cunningham, an advocate with Centrelink. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Ms Cunningham had provided Mrs Duncan and the Tribunal with a statement of the Secretary's case.

3. In lodging Brent's application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 March 2000, Mrs Duncan had advised that:

   . . .
   I request this review due to the following:

• By accepting that the application was posted, the Tribunal should have found that Centrelink were deemed to have received the application.

• The Tribunal was wrong in finding the claim was lodged 17th December 1999, due to the fact that there was a sufficient act of acceptance when I placed the initial claim into the post in May 1999.

  I would also like to make note that the History quotes that I posted the initial claim prior to 24th May, 1999 (Brent's 16th birthday), when in fact I received Centrelinks letter telling me that Family Allowance was no longer payable to Brent dated 20th May, hence, postage may take up to 2 days.

She had also provided a letter dated 18 January 2000 to the SSAT, including advice that:

. . . I went across to Centrelink in May 1999 and filled out forms with Debbie to change my "Parents Allowance" over to "Partners Allowance."   Brent and I both remember filling out the "Youth Allowance" form at home around the time of his birthday.   It was posted by mail at the same time, not handed in at an interview, as you claim.
Brent's payment before he turned 16 years, had always been put into John's (father) bank account at the A.N.Z. bank as we have an agreement with the bank for the money to be transferred directly to our mortgage.   Due to this arrangement with the bank, we do not check on the money each fortnight and knowing that we had filled out the appropriate form for Brent's payments to be forwarded after he turned 16, we assumed everything was fine.
The A.N.Z. bank issue account statements every 6 months.   Due to this, we were not aware that the money was not being credited to our account.   . . .
My husband (Brent's father) had a very serious heart attack and 6 strokes early July of this year.   He was in hospital in Melbourne for a period of 2 months.  I spent every day in hospital with him and have been caring for him at home ever since.   It has been a tremendous stress on the entire family, emotionally and financially.   . . .   

• I was talking to Steve Laws on the phone on 11th January, 2000.

• I never said I lodged a form at an interview before Brent's 16th birthday.   I said I wasn't sure of the date the form was lodged.   I remember it being near/after Brent's birthday.

• The only interview I had with Debbie at Centrelink was to fill out a form for my "Parent Allowance" to be changed to "Partner Allowance."

• I never said I handed the "Youth Allowance" form in at an interview at all.

  . . .
  When I was speaking to Centrelink in December, they said Brent was still on the computer as a child, yet I was taken off "Parent Allowance" in May.   Brent must be entitled to some form of payment when his father is on the "Disability Pension."   I understand "No form, No pay", but I honestly posted the form in May.   . . .

1. The documents include a claim for youth allowance signed by Brent on 17 December 1999, lodged with Centrelink on that day.   He was born on 24 May 1983.   A decision was apparently made on 17 December 1999 to pay youth allowance but no copy of that decision is amongst the documents or the Tribunal.   In referring the matter to the authorised review officer ("ARO") for review, it was noted by the original decision-maker that:

   Brent's record was still a child record.   There were no doc's on either parent about a YA claim.   There was no file in the file room, & there was nothing in either parent's file.

2. The documents include printouts from the Centrelink computer with respect to Mrs Duncan's entitlements under the Act. On 7 April 1999 it is recorded, amongst other things:

   . . . FPA/C16 FTP FSU+07 APR 99 CROSS, M F MRW XWW HST 119
   C16 RECEIVED FOR BRENT INELIGIBLE FOR FPA AS WILL GET ABSTUDY . . .
   PgA will be suspended if reminder form not returned by 26 APR 99
   . . .

Ms Cunningham explained at the hearing that the computer entries disclose that Brent was turning 16 years and that a review form was sent by Centrelink to Mrs Duncan about two months before Brent's 16th birthday seeking advice from her as to whether Brent would remain a student.   A package, including a youth allowance claim form, was also sent to Mrs Duncan.   Mrs Duncan returned the review form advising that Brent was a dependent full-time student. 

1. Mrs Duncan gave evidence that she could not recall receiving the package but, as she returned one of the forms to Centrelink which indicated that she would be ineligible for family allowance as Brent was to be paid Abstudy (now youth allowance), the Tribunal is satisfied that she did receive the package.   She apparently also provided information to Centrelink on 21 May such that she was paid partner allowance, as assessed on 31 May, as she was no longer qualified for parenting payment.   In October she attended Centrelink to claim carer's allowance in respect of her husband.  

2. The relevant provisions of the Act are as follows:

   547.        A youth allowance is not payable to a person who is qualified for youth allowance . . .

   (a)before the person's provisional commencement day (see Subdivision B); or

   . . .

   548.Subject to this Subdivision, a person's provisional commencement day is the day on which the person claims a youth allowance.

   . . .
   554.(2)     For the purposes of subsection (1), if:

   (a)a claim for youth allowance is made by or on behalf of a person; and

   (b)at the time the claim is made, the claim cannot be granted because the person is not qualified for youth allowance;

   the claim is taken not to have been made.    
   . . .

   554B.      To be a proper claim, a claim must be lodged:

   (a)at an office of the Department; or

   (b)at a place in Australia approved for the purpose by the Secretary; or

   (c)with a person in Australia approved for the purpose by the Secretary.

If a form is sent out by Centrelink to a claimant some time before a valid claim can be lodged, it may be easy for a person to overlook the claim form and forget to send it in.   On the other hand, a claimant needs to be alerted to their possible entitlement in plenty of time in case they are away from home about the time of their 16th birthday.   There is only a small window of opportunity in which to lodge a claim form so that a claimant ensures that they do not miss out on any payment when they are qualified.  

1. By letter dated 20 May 1999 Mrs Duncan was advised by Centrelink

   . . .
   You will be paid $7.70 for Brent every second Thursday, starting on 3 June 1999.
   We cannot pay you Family Allowance any more.   This is because there are no dependent children living with you for whom we can pay Family Allowance.
   . . .
   Family Allowance cannot be paid for a student for whom Abstudy or a similar Commonwealth Student Assistance Scheme (CSAS) payment, is also being made by Centrelink.   You have indicated that your student is eligible or has applied for a CSAS payment.    . . .

Family allowance was cancelled on 3 June 1999 following her advice but no action was taken to activate payment of youth allowance to Brent, a claim form apparently not having been acted on.   Mrs Duncan said that she could not recall taking any action when she received the letter dated 20 May 1999.   She had apparently obtained a copy of Brent's birth certificate about 31 May 1999, a copy of which was received by Centrelink on 20 December 1999.   The next text from the computer included in the documents relevant to this application is an entry on 17 December 1999:

. . . A/n rang to check on account number that she authorised her sons yal to be paid into.  There is no record of son being on yal and it appears no payments have ever been made.   Son is still as a child on mothers record.   A/n states she filled in forms and posted to above office in May when son turned 16.   plse investigate.  . . .

Ms Cunningham advised the Tribunal that there were also computer entries on 21 December 1999, ". . . mother claims she brought claim in when son turned 16 in May this year".   Mrs Duncan has been consistent in her contentions with respect to posting a claim form for youth allowance for Brent to Centrelink in May ever since she discovered that he was not in receipt of that payment.   Ms Cunningham advised the Tribunal:

. . . The Secretary would acknowledge, as did the Social Security Appeals Tribunal, that in all likelihood, Mrs Duncan posted Brent's application for Youth Allowance.   . . . 

1. As advised in the letter dated 20 May 1999, a decision was made to pay Mrs Duncan family tax payment of $7.70 under Division 2, Part 2.17AA of the Act. A person needs to have at least one "FTP child" to qualify for payment under section 900AD. Ms Cunningham told the Tribunal the dependent child must be under 18 years and a full-time student. Section 900AA(1A) provides a definition of dependent child:

   900AA(1A)  A person (the young person) who is receiving a youth allowance is taken to be a dependent child of another person for the purposes of this Division if:

   (a)but for paragraph 5(6)(b), the young person would be a dependent child of that other person; and

   (b)the young person is not independent within the meaning of section 1067A; and

   (c)the young person is under 18 years of age and is undertaking full-time secondary study.   (emphasis added)

Paragraph 5(6)(b) provides:

5.(6)     A young person cannot be a dependent child for the purposes of this Act if:

(a). . .

(b)the young person is receiving a social security benefit; or

. . .

Turning to section 1067A, the Tribunal is satisfied that Brent is not independent within the meaning of that section.  

1. Ms Cunningham, who has been responsible at some stage for opening mail at several regional offices, outlined the procedure within a regional office to the Tribunal.   To her knowledge no audit is kept of the number of letters which are received and passed on to the relevant officers.   In Re Flynn and Director-General of Social Security  (1982) 4 ALN N282 Mr A.N. Hall, Senior Member (as he then was), said:

   I do not think that there can be any doubt that a claim which is posted is not "lodged with a Director" until it is actually received in his office.

In Re Messina and Director-General of Social Security (AAT 1091, 20 June 1983) the Tribunal said that:

. . . posting of the claim does not meet the requirement of section 98; the claim must be lodged with a Director.

1. As already indicated, the SSAT found that Mrs Duncan had posted Brent's youth allowance claim form to Centrelink and Ms Cunningham did not dispute that fact.   Following Mrs Duncan's evidence to the Tribunal, it is satisfied, on the balance of probabilities, that she posted the claim form shortly after Brent turned 16 years and probably when she received the copy of extract of his birth certificate.   In light of the high probability of that claim having been "received" by Centrelink, and in light of the decision made to pay her family tax payment, noting the provisions of subsection 900AA(1A) and the text of the letter sent to Mrs Duncan on 20 May 1999 stating that ". . . You have indicated that your student is eligible or has applied for a CSAS payment.   . . .", the Tribunal is satisfied that the claim form was lodged with Centrelink early in June 1999.   In Re Secretary, Department of Employment, Education, Training and Youth Affairs and Coward (1997) 49 ALD 698 the Tribunal heard evidence with respect to an audit carried out by KPMG on Australia Post's domestic letter service performance. It said, at page 703:

   (10)        . . . the audit showed that Australia Post delivered 93.9 per cent of all letters early or on time, and 98.7 per cent of letters were delivered on time or not more than one working day after your delivery undertakings.   The comparable figures for the 12 months ended 30 June 1996 were 93.2 and 98.6 per cent respectively.
   In our opinion a 95 per cent confidence level and with a maximum weighted actual precision limit of 0.1 per cent, these results represent fairly the performance of your domestic letter service for the year ended 30 June 1997.

The contrary has not been proved and the Tribunal is satisfied that, in the ordinary course of post, the claim form, posted by Ms Duncan, was lodged with Centrelink but that there was some failure within the regional office to activate the claim, or that it went missing from somebody's in-tray.   Ms Cunningham further advised the Tribunal that:

. . . Morwell Customer Service Centre's procedure for processing Youth Allowance new claims is to book an appointment for the customer to attend an interview.   . . .  

Perhaps no interview was booked because the claim form, including evidence with respect to Brent's date of birth, was already in the hands of the regional office.

1. The Tribunal will therefore set aside the decision under review and substitute a decision that, from the first pay day in June 1999, Brent is entitled to be paid youth allowance.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member

   (sgd)      Catherine Thomas
                 Personal Assistant

   Date of Hearing:  05.07.00
   Date of Decision:  26.09.00
   Solicitor for the Applicant:           Mrs S. Duncan
   Solicitor for the Respondent:       Ms K. Cunningham, Departmental Advocate