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

[2016] AATA 1042

El Azzi and Secretary, Department of Social Services (Social services second review) [2016] AATA 1042 (19 December 2016)

Division	GENERAL DIVISION
File Number	2016/2252
Re	Norma El Azzi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	19 December 2016
Place	Sydney

The decision under review is affirmed.

........................[sgd]................................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – Pensioner Education Supplement – start date of payments – qualification date – date on which a claim is deemed to have been made – whether payment can be backdated further than date of first contact – decision under review affirmed

Legislation

Social Security (Administration) Act 1999 (Cth), ss 11, 13, 16, Schedule 2, cls 3, 30-32

REASONS FOR DECISION

Dr L Bygrave, Member

19 December 2016

INTRODUCTION

1. The applicant, Mrs Norma El Azzi, commenced study for a ‘Diploma of Early Childhood Education and Care’ with Access Group Training on 16 March 2015.

2. On 15 October 2015, Mrs El Azzi contacted the Department of Human Services (the Department) by telephone about claiming the Pensioner Education Supplement (PES). She subsequently lodged a Claim for Pensioner Education Supplement form on 27 October 2015 and her claim was granted with effect from 15 October 2015. Mrs El Azzi sought internal review of the decision to grant PES from 15 October 2015 and not from an earlier date. By a letter dated 10 February 2016, an Authorised Review Officer (ARO) affirmed this decision.

3. Mrs El Azzi appealed the ARO’s decision to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal. The SSCSD affirmed the Department’s decision on 31 March 2016.

4. On 3 May 2016, Mrs El Azzi applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 8 December 2016. Mrs El Azzi attended the hearing by telephone and was assisted by an interpreter of the Arabic language.

   ISSUE

6. The determinative issue for the Tribunal is whether Mrs El Azzi can be paid the PES from a date earlier than 15 October 2015.

   RELEVANT LEGISLATION AND CONSIDERATION

7. The Social Security (Administration) Act 1999 (the Administration Act) sets out the payment of the PES. Relevantly, s 11 of the Administration Act establishes the general rule that a claim must be made for a social security payment and s 16 sets out the manner in which a claim may be made.

8. Mrs El Azzi made and lodged a written claim for the PES in accordance with ss 11 and 16 of the Administration Act on 27 October 2015.

9. Pursuant to s 41(1) of the Administration Act, when a person makes a claim for a social security payment, the payment ‘becomes payable’ on the person’s ‘start day’. Schedule 2 of the Administration Act sets out rules for working out the start date of a social security payment; cl 3 of the Schedule provides the general rule that a person’s ‘start day’ in relation to a payment is the day on which the claim is made.

10. Section 13 of the Administration Act allows for a person who contacts the Department in relation to a claim who then lodges the claim within 14 days to generally be deemed to have made the claim on the date of the initial contact.

11. I note that s 13 of the Administration Act also allows for the time limit on lodging a claim to be extended to 13 weeks if the following circumstances apply; the person had a medical condition that prevented them from lodging the claim, or there were special circumstances that prevented the person from lodging the claim. The Secretary contends, and the Tribunal accepts, that these circumstances do not apply to Mrs El Azzi.

12. Clauses 30 to 32 of Schedule 2 of the Administration Act provide for backdated start days in relation to PES payments. For payment to be backdated to the appropriate commencement date, PES claims must be lodged by either 31 March (for people starting their course in Semester 1) or 31 July (for people starting study in Semester 2) for full year study, or within four weeks of either commencing study in a short course or otherwise becoming qualified for the PES.

13. Mrs El Azzi qualified for the PES on 16 March 2015, which is the date she commenced study with Access Group Training. However, the earliest date she can be paid the PES is 15 October 2015. This is because her claim for the PES was not lodged within four weeks of commencing her course on 16 March 2015. Rather, her claim was lodged on 15 October 2015, seven months after she commenced her course. Consequently, Mrs El Azzi’s PES cannot be backdated and can only be paid from the date she made her claim.

14. At the Tribunal hearing, Mrs El Azzi confirmed that she did not contact the Department until 15 October 2015. She said that she only had spoken to her course provider, Access Group Training, about her claim for the PES prior to this date. Unfortunately for Mrs El Azzi, this does not constitute a claim for PES in accordance with the requirements in the Administration Act.

15. I am satisfied that the earliest Mrs El Azzi’s PES claim can be taken to have been made is 15 October 2015, as this is the date she contacted the Department in relation to a PES claim and she subsequently lodged a claim on 27 October 2015, which is within 14 days. Therefore, Mrs El Azzi’s claim is taken to have been made on 15 October 2015 and this is the start date for her PES.

    DECISION

16. The decision under review is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member. 

..........................[sgd]..............................................

Associate

Dated 19 December 2016

Date of hearing	8 December 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services