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

[2019] AATA 4206

Fernandez and Secretary, Department of Social Services (Social services second review) [2019] AATA 4206 (27 September 2019)

Division:GENERAL DIVISION

File Number(s):  2018/7336

Re:Adolphus Fernandez

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:           Dr N A Manetta, Senior Member

Date of oral reasons:           27 September 2019

Date of written reasons:        11 October 2019

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal:

i.sets aside the decision under review;

ii.substitutes a finding that Mr Fernandez had made a valid claim in writing for an age pension on 5 October 2017; and

iii.remits the matter to the Respondent for calculation and back-payment of pension arrears.

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Dr N A Manetta, Senior Member

Catchwords

SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Start date – Where Applicant not qualified for age pension at date of initial claim – Where Applicant provided documentation demonstrating qualification after the rejection of the initial claim – Whether re-execution of new old claim form or submission of new claim form necessary - Decision under review set aside and remitted to the Respondent.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Nil

Secondary Materials

Nil

REASONS FOR DECISION

Dr N A Manetta, Senior Member

11 October 2019

1. At the conclusion of the hearing of this matter, I delivered my decision and gave oral reasons for my decision.  The Respondent requested written reasons. 

2. I have reviewed the transcript of my reasons and made minor amendments to it.  I formally adopt it as a written statement of my reasons in answer to the Respondent’s request.  I attach a copy of the transcript as amended.

I certify that the following 24 paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.

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Legal and Administrative Assistant

Date of hearing:	17 September 2019
Applicant:	In person
Respondent’s Representative:	Mr Morris, Secretary, Department of Social Services

ORAL DECISION OF SENIOR MEMBER MANETTA               

1. This is an application by Mr Adolphus Fernandez seeking a review of a Level 1 decision of this Tribunal dated 7 December 2018.  In its decision, the Tribunal affirmed decisions taken earlier in the respondent’s Department that Mr Fernandez was ineligible to receive a backdating of his age pension to October 2017.  I shall describe shortly the circumstances which Mr Fernandez maintains entitle him to the backdating. 

2. At the hearing before me, Mr Fernandez represented himself.  Mr Morris appeared for the respondent. The salient facts are largely agreed between Mr Fernandez and the respondent.  I summarise them as follows.

3. Mr Fernandez signed and lodged a claim form for an age pension in May 2017.  He filled out the requisite form and provided all relevant information.  The respondent’s officers rejected Mr Fernandez’ claim because his assets level was excessive and his age pension entitlement was nil.  Mr Fernandez does not dispute this assessment.

4. Mr Fernandez reordered his affairs.  On 5 October 2017, Mr Fernandez lodged further information in writing at a Centrelink office, demonstrating that his financial affairs had been reordered so that he now satisfied the assets test.  As I have said, he informed Centrelink of this reordering of his assets, but he was not told he needed to lodge a fresh claim form.

5. Mr Fernandez believed that his claim form, filed on 5 May 2017, as amended by the new information he provided on 5 October 2017, would be sufficient to warrant payment of a pension to him.  That was an entirely reasonably supposition on his part in the absence of contrary information from Centrelink.

6. The respondent does not dispute that Mr Fernandez satisfied the assets test on 5 October 2017.  The respondent further accepts that had Mr Fernandez submitted a new claim form on that date, he would properly have been granted an age pension on the basis of that new form.  Indeed, in the course of oral argument, Mr Morris submitted that if Mr Fernandez, on 5 October 2017, had simply re-signed and redated his May claim form and appended to it the new assets information, he would have satisfied the legal requirement that a “new” claim form in writing should be submitted.

7. Mr Fernandez made enquiries in due course of the respondent’s officers, both in person and by phone, querying why his application for an age pension was taking such a long time to grant.  He was told that his application was in order, but that his was not a priority case and his case would simply have to wait in the queue until Centrelink found time to process it.  Eventually, Mr Fernandez was told, in January 2018 when he made a further inquiry, that what he had assumed was a proper claim from the respondent’s perspective and one he had made on 5 October 2017, was now considered defective because Mr Fernandez had not completed a new claim form.  Mr Fernandez promptly filled out a new claim form and was granted the age pension. 

8. Mr Fernandez seeks a backdating of his pension, on the basis that he made a proper claim on 5 October 2017.  The respondent disputes that it is obliged to backdate the pension notwithstanding the course of events I have described.  The respondent maintains that the respondent is prevented in law from accepting that a valid claim was made on 5 October 2017.  A significant sum is in issue, in the order of $4,500.

9. Hearing the matter afresh on the evidence adduced before me, I must decide whether the respondent’s submission in this regard  is correct.  I have decided that the respondent’s submission is not correct. 

10. Mr Morris submitted on behalf of the respondent that Mr Fernandez’ claim for an age pension, filed on 5 May 2017 was “legally spent” and could not be revived, except by the re-signing, redating and resubmission of the old form together with the updated material on 5 October 2017.  Alternatively, a new form had to be submitted.  As neither had occurred on 5 October 2017, the respondent could not lawfully act to grant an age pension with effect from that date.

11. Mr Morris accepted that the logic of his submission was that the respondent was unable in law to agree with Mr Fernandez explicitly that the claim form of 5 May 2017, supplemented by the additional information provided in October 2017, would satisfy the respondent’s legal obligation to act on a claim that is made in writing. I refer in this connection to section 16 of the Social Security (Administration) Act 1999 (“the Administration Act”).

12. In was legally necessary, in Mr Morris’s submission, for a new form to be executed, or for the old form be re-signed, redated and resubmitted. I do not accept this argument. There is nothing explicit in the Administration Act that requires this result. It is not an inference I am prepared to draw. It is manifestly inconvenient. There is no reason why an officer of the respondent could not have explicitly indicated to Mr Fernandez that the claim form of 5 May 2017, as supplemented by the further information provided on 5 October 2017, would be taken by the respondent to constitute Mr Fernandez’ claim in writing as required by section 16 of the Administration Act.

13. As I say, I do not see any legal reason why the respondent’s officers could not have explicitly agreed this with Mr Fernandez. Mr Morris’s argument that the May 2017 claim was “legally spent” seems to me not to be quite on point. Mr Fernandez does not submit that he is entitled to a pension from May 2017. He accepts that his May 2017 claim was properly rejected. Mr Morris’s submission does not meet the argument that the claim form Mr Fernandez filed in May 2017, taken together with the further and more up-to-date asset information filed in October 2017 may together comprise a claim in writing, for the purposes of section 16 of the Administration Act with a date of lodgment of 5 October 2017, if that is what the respondent’s officers agreed to.

14. There is, in my opinion, no legal impediment in section 16, or elsewhere, to the respondent, explicitly or implicitly, agreeing to proceed in this way if he or she so chooses. It follows, in my opinion, that the only question in this case is one of fact, namely, whether the respondent’s officers either explicitly or implicitly agreed that the respondent would accept Mr Fernandez’ May 2017 claim form, amended by the updated information filed on 5 October 2017, as a sufficient claim in writing for the purposes of section 16, with a lodgment date of 5 October 2017.

15. Mr Fernandez’ evidence, which Mr Morris very fairly accepted, was that he was told on more than one occasion that his claim form was in order, that he did not need to do anything further, and that the sole reason for the delay in its processing was simply that his was not a priority case.  Indeed, Mr Fernandez made the telling point that had he not “kept on Centrelink’s back”, so to speak, with his persistent enquiries, his claim might simply have languished.   Mr Fernandez only learned in January 2018, upon further inquiry, that the respondent had formed the view at that point that he needed to lodge a new form.

16. In my opinion, the proper inference to be drawn from the facts is that the respondent’s officers  in their dealings with Mr Fernandez, from October 2017 onwards to January 2018, implicitly, if not explicitly, accepted that the May 2017 claim form, taken together with the updated information provided in October 2017, constituted a valid and sufficient claim in writing for the age pension with a filing date of 5 October 2017.  Otherwise, Mr Fernandez would have been told to fill out a new form.

17. In the circumstances, as I have decided that there is no legal impediment to the applicant and respondent proceeding in this manner, I find as a fact that the applicant made a claim in writing with the respondent, on 5 October 2017, consisting of the earlier claim form of May 2017, as amended by the updated financial information filed on 5 October 2017; and I further find that the respondent’s officers accepted this manner of proceeding. 

18. That being the case, it follows in my opinion, that the decision under review should be set aside; that I should substitute a finding to this effect; and that Mr Fernandez should be back-paid arrears of his pension. 

19. Finally, I do wish to make mention of a further matter Mr Morris raised.  Mr Morris pressed me with the submission that there is a compensation scheme operating outside the Social SecurityAct and the Administration Act. The scheme, he submitted, operates in the discretion of the respondent to deal with difficult cases such as the one before me today.

20. I would make two points in respect of that submission.  First, since the compensation scheme is not a statutory scheme, its existence cannot inform the proper interpretation of provisions in the Social SecurityAct or the Administration Act. That is to say, the fact that the respondent has chosen, outside the regulatory regime, to pay compensation in respect of difficult cases in his or her discretion does not bear upon the question of what is, or is not, the preferable interpretation of particular statutory provisions in either of those Acts.

21. Secondly, Mr Morris indicated to me in the course of the hearing that payment from the compensation scheme was not usually considered until all review mechanisms had been exhausted, including applications to this Tribunal.  I think that practice should be revisited.  Mr Fernandez’ case would clearly have warranted discretionary compensation had I ruled in favour of Mr Morris’s submissions.  That is, there is no doubt that Mr Fernandez has been poorly treated.  It is not clear to me why a discretionary payment from the compensation scheme in a clear case like this one should await a decision from the Tribunal. 

22. This matter could have been handled without a hearing, with the same practical result to Mr Fernandez by the making to him of a discretionary payment.  It seems unfortunate that the Tribunal’s finite resources, as well as the Secretary’s resources, not to mention Mr Fernandez’ time, have been expended when this was a matter that could be fairly said to have required on any view of the facts a discretionary payment, even if the legal position had been as the respondent submitted it was. 

23. I accept that the application and the operation of the scheme do not fall within this Tribunal’s jurisdiction, but I wish to raise my concerns for the respondent’s further consideration in the interests of good public administration. 

24. That concludes my reasons.  The order has been drawn up; so I shall ask the assistant to hand it to you now.