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

[2022] AATA 320

Elcheikh and Secretary, Department of Social Services (Social services second review) [2022] AATA 320 (18 February 2022)

Division:GENERAL DIVISION

File Number(s):      2020/3756

Re:Haitham Elcheikh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member L Rieper

Date:18 February 2022

Place:Sydney

The Tribunal affirms the decision under review.

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

Member L Rieper

CATCHWORDS

SOCIAL SECURITY – carer payment – request for start date of payment to be backdated – where first claim made and rejected – second claim made and approved – no request for review within 13 weeks for first claim -  decision under review is affirmed.

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 29

Electronic Transactions Act 1999 (Cth) s 14A

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) s 13, 107, 237

Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018, s 5

REASONS FOR DECISION

Member L Rieper

18 February 2022

1. Mr Elcheikh seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal (“AAT1”) on 18 May 2020.

2. The issue to be determined is the correct start date for Mr Elcheikh’s carer payment.

3. A hearing was held on 21 January 2022 via Microsoft Teams. Mr Elcheikh appeared on his own behalf, and the Secretary was represented by Mr Lozynsky of Services Australia.

4. Mr Elcheikh says the start date of his carer payment should be 3 January 2019, being the date he made his first claim. The Secretary says that it should be 17 June 2019 which is the date he lodged his second claim.

   BACKGROUND

5. The Social Security Act 1991 (Cth) (“the Act”) provides that, in order to be paid, a person must lodge a claim in an approved form. It is not in dispute that Mr Elcheikh lodged claims on 3 January 2019[1] and 17 June 2019.[2]

   [1] T5

   [2] T9

6. Generally, the start date for a claim is the date on which that claim is lodged (Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), except that the start can be backdated in some limited circumstances (section 13 of the Administration Act).

7. Mr Elcheikh’s initial claim was rejected on 25 January 2019 on the basis he had not responded to correspondence sent to him by Centrelink.[3]

   [3] T6

8. Centrelink’s documents do not show any contact from Mr Elcheikh between 25 January 2019 and 17 June 2019 when he attended a Centrelink office enquiring about the rejection of his claim[4], although Mr Elcheikh gave some oral evidence about making contact during that period.

   [4] T23

9. Mr Elcheikh made a further claim on 17 June 2019.[5] After some requests for further information and an initial rejection of the claim, the claim was granted on 20 December 2019 with a start date of 17 June 2019, which was the date he lodged the claim.[6]

   [5] T9

   [6] T17

10. The decision regarding the start date was affirmed by a Centrelink authorised review officer on 24 March 2020[7] and AAT1 on 18 May 2020.[8]

    [7] T22

    [8] T2

    FIRST CLAIM

11. The letter rejecting Mr Elcheikh’s first claim was addressed to him at the residential address he provided in the claim form he submitted on 3 January 2019. He provided the same address in his second claim.

12. The letter included the following notice:

    If you do not agree with a decision we have made

    Contact us so we can check the details and explain the decision.

    Contact us and ask for a review of the decision. We will change it if it is wrong.

    Contact the Administrative Appeals Tribunal (AAT) if you do not agree with the review officer’s decision.

    If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au

    All of the above are free of charge.

    If you do not agree with a decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

13. The notice contains a summary of section 107 of the Administration Act, which sets the general rule regarding the date of effect of determinations relating to claims. Essentially, if a person seeks a review of a decision rejecting their claim for a social security payment more than 13 weeks from the date they were given notice of that decision, and a decision that the claim is to be granted is made as a result of that request for a review, the determination to grant the claim takes effect on the date the person requested the review.

14. Mr Elcheikh gave evidence that he was living at the address printed on the letter at the relevant time, but that he did not receive the letter.

15. The Secretary’s position is that the letter was sent to Mr Elcheikh by prepaid post.

16. Although the reasons for decision of AAT1 indicate that Mr Elcheikh gave evidence on that occasion that he located the letter online “sometime later”, Mr Elcheikh did not have a clear recollection of that when giving evidence on this occasion.

17. Section 237 of the Administration Act provides that if a notice of a decision is sent by prepaid post to the postal address of the person last known to Centrelink, then notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved. A similar provision is contained in section 29 of the Acts Interpretation Act 1901 (Cth) (‘Interpretation Act’).

18. The Tribunal has no basis on which to reject the Secretary’s contention that the letter was sent to Mr Elcheikh by prepaid post. A file note dated 25 January 2019[9] indicates that Mr Elcheikh’s claim was rejected on that day and that a customer service officer had “actioned record.” It is apparent that a letter addressed to Mr Elcheikh at his last known address, which was later used as his residential address for his second claim, was generated and the Tribunal is satisfied that it would have been sent to Mr Elcheikh by prepaid post in accordance with Centrelink’s usual practice.

    [9] T23, p. 127

19. The effect of section 29 of the Interpretation Act and section 237 of the Administration Act is that even if Mr Elcheikh did not receive the letter dated 25 January 2019, he is deemed to have been given it sometime shortly after it was sent because it was sent to his last known address held by Centrelink. Even if it is assumed that he would have received it a week later, the 13-week period established by section 107 would have expired on 3 May 2019.

20. The Tribunal notes that Mr Elcheikh gave inconsistent evidence to the Tribunal as to whether he received the letter electronically through MyGov. At one point he said that he thought he saw it sometime after April or May 2019, but he later said he could not recall whether he saw it in his MyGov account at all. If it was sent to him electronically then section 14A of the Electronic Transactions Act 1999 (Cth) says that the time of receipt is the time it was capable of being retrieved by the addressee.

21. Mr Elcheikh prepared a written statement in support of his case dated 22 March 2021.[10] In his statement, Mr Elcheikh said that he called and visited Centrelink on several occasions throughout January and February. He stated he rang Centrelink on 15 February 2019 regarding his claim but could not get through after being on hold for over 45 minutes. He said that his time was then taken up with a medical emergency and that his father was in hospital from 2 March 2019 to 4 April 2019. His oral evidence was that he spent a further month assisting his father recuperate. In his statement he said that on 6 May 2019 he made contact with Centrelink by telephone. He was told that his claim had been rejected in January 2019 and that he had to apply again because he had exceeded the 13 week appeal period.

    [10] A1

22. Centrelink’s papers do not contain any record of a call from Mr Elcheikh on 6 May 2019 and he does not appear to have recalled it when he spoke to the authorised review officer on 20 March 2020 or when he gave evidence to AAT1. It is also inconsistent with a Centrelink note dated 17 June 2019 which indicates that Mr Elcheikh attended a Centrelink office on that day and was provided with the information he now recalls being given on 6 May 2019.  It states:

    customer enquiring about CAR/REJ, stating he was caring for his father and he is self employed.  I have explained to the customer he needs to submit CAR OLC and there’s NO backpayment as outside 13 weeks of rejection. customer understood.

23. Even if a call did take place on 6 May 2019 as Mr Elcheikh says in his statement, he took no further action until 17 June 2019. He made a further claim on that day and it was subsequently granted from that day. Section 107 of the Administration Act does not allow a more favourable outcome.

    SECOND CLAIM

24. Section 13 of the Administration Act only allows the start date for payment of a benefit to be a date prior to the date on which the claim was lodged in some limited circumstances. In each of the sets of circumstances set out in section 13, one of the requirements is that the person is in a ‘class of persons’ specified in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Determination).

25. Section 5 of the Determination describes who is in a ‘class of persons’ to which section 13 of the Administration Act would apply. The must be:

    (a)subject to domestic or family violence;

    (b)homeless;

    (c)hospitalised or suffering from a temporary incapacity arising from a medical condition;

    (d)released from prison or psychiatric confinement;

    (e)experiencing high stress associated with a relationship separation;

    (f)a parent of a dependent child born during the relevant period;

    (g)affected by the death during the relevant period of an immediate family member;

    (h)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;

    (i)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;

    (j)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

    (k)subject to other special circumstances beyond the person’s control.

26. Mr Elcheikh’s evidence was that he was very tired when he lodged his first claim, he was dealing with his father’s hospitalisation in March and early April 2019 and with his father’s recovery in the month after he left hospital on 4 April 2019. There is no evidence that he fell within any of the categories set out in the Determination. The Tribunal is therefore satisfied that none of the circumstances provided for by section 13 apply in Mr Elcheikh’s situation.

27. Although it was not raised by either of the parties, the Tribunal also notes that Schedule 2 to the Administration Act also sets out some circumstances in which a claim may be backdated. An example is if the claimant makes a claim within five weeks of being incapacitated. The Tribunal is satisfied that none of the circumstances set out in Schedule 2, which might allow Mr Elcheikh’s claim to be granted from an earlier date, apply here.

28. The Tribunal is therefore satisfied that there is no basis on which Mr Elcheikh’s claim can be granted from a date any earlier than 17 June 2019.

    CONCLUSION

29. The Tribunal has reached the same conclusion as AAT1.  That means that the decision under review must be affirmed.

    DECISION

30. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member L Rieper.

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

Associate

Dated: 18 February 2022

Date(s) of hearing:	21 January 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Mr G. Lozynsky, Services Australia