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

French and Secretary, Department of Social Services (Social services second review) [2021] AATA 4779 (22 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3206
Re:Angela French
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:22 December 2021
Place:Canberra

The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
...............[sgd].............................................
Member W Frost
Catchwords
SOCIAL SECURITY – whether entitled to parenting payment – social security payment start date – deemed claims – whether payments can be backdated - whether special circumstances – registering of intention to claim – coronavirus provisions – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Social Security (Administration) Act 1999 ss 11, 13, 14A, 16, 41, 42, 179
Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018 ss 4, 5
Social Security (Coronavirus Economic Response – 2020 Measures No. 1) Determination 2020
Social Security (Coronavirus Economic Response – 2020 Measures No. 9) Determination 2020
Cases
Aljbour and Secretary, Department of Social Services [2020] AATA 762
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Dranichnikov v Centrelink [2003] FCAFC 1333
Griffiths and Secretary, Department of Social Services [2021] AATA 3016
Groth and Secretary Department of Social Security [1995] FCA 1708
REASONS FOR DECISION
Member W Frost
22 December 2021
INTRODUCTION

This decision is in relation to whether the Applicant, Ms Angela French, can receive the Parenting Payment from a date earlier than when she lodged her claim for that social security payment. On 23 March 2020, Ms French registered her intention to claim Parenting Payment with the Department of Human Services (now Services Australia and referred to in this decision as the Agency). However, Ms French did not lodge that claim until some seven weeks later, on 12 May 2020.
The Agency granted Parenting Payment to Ms French from the date her claim was lodged. Ms French sought review of the Agency’s decision not to pay her Parenting Payment from the date she registered her intention to claim that payment. An Authorised Review Officer (ARO) found the Agency’s decision was correct. Ms French subsequently applied for review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), which affirmed the Agency’s decision. Ms French applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of the AAT1 decision.
The Tribunal considered all documents filed in this proceeding, including those lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act),[1] together with Ms French’s witness statement, the statement of her husband and representative at the Tribunal hearing, Mr Simon Plummer, and a letter from Dr Melinda Lattimore dated 23 August 2021.[2] For the following reasons, the Tribunal affirms the AAT1 decision, meaning Ms French’s application is unsuccessful and Parenting Payment is not payable from a date earlier than when she made her claim on 12 May 2020.
[1] Exhibit 1.
[2] Exhibits 2, 3 and 4, respectively.
ISSUE
The issue for determination by the Tribunal is whether Ms French can be paid Parenting Payment from an earlier date than when she lodged her claim on 12 May 2020.
BACKGROUND
On 24 December 2019, Ms French’s second child was born.[3]
[3] Exhibit 1, T5, page 45.
On 28 February 2020, Ms French attended the Outpatient Department at the Young Health Service (Outpatient Department).[4]
[4] Exhibit 1, T12, page 93.
On 19 March 2020, Ms French twice attended the Outpatient Department.[5] These attendances were recorded as being at 8.35am and 10.37pm.[6] The discharge notes from the Young District Hospital stated that Ms French was admitted at 8.35am and discharged at 12.20pm on 19 March 2020 from the Emergency Department.[7] There was no further evidence in relation to Ms French’s second admission on this date.
[5] ibid.
[6] ibid.
[7] Exhibit 1, T13, pages 97-99.
On or around 23 March 2020, Ms French registered her intention to claim Parenting Payment using her online myGov account.[8] The notification on myGov stated that: ‘You’ve registered your intention to make a claim. We’ll contact you to let you know what the next steps are. We’re sorry, this may take some time due to a high volume of claims. You only need to register once. If you’re eligible for a payment, you’ll be back-paid from today’.[9]
[8] Exhibit 1, T9, pages 73-75.
[9] ibid., page 73.
On 27 March 2020, Ms French created an online claim for Parenting Payment in a form approved by the Respondent.[10]
[10] Exhibit 1, T7, pages 49-68.
On 12 May 2020, Ms French submitted her claim for Parenting Payment to the Agency.[11] The claim listed Ms French as having two children, not having undertaken paid work in the past 12 months, holding two active bank accounts with a total of almost $20,000 in cash and her 50% interest (with the balance held by her husband) in 10 residential properties receiving a total of $174,980 in gross rental income. The Agency’s file note from 12 May 2020 stated that Ms French ‘has been requested to return’, among other documents, the most recent council rate notices for the properties, income tax returns for her and Mr Plummer and proof of her children’s birth.[12]
[11] ibid.
[12] Exhibit 1, T14, page 128.
On 6, 8, 20 and 23 July 2020, according to the Agency’s file notes, Mr Plummer contacted the Agency requesting an update on Ms French’s claim for Parenting Payment.[13]
[13] ibid., pages 118, 131 and 132.
On 27 July 2020, the Agency granted Parenting Payment to Ms French from 12 May 2020.[14] Ms French was paid $4,448.51 for the period 12 May to 27 July 2020. From 12 August 2020, Ms French was paid a regular payment of $760.38, which included $202.48 for ‘Parenting Payment Partnered’ and $550 for the ‘Coronavirus Supplement’. The letter from the Agency noted that in calculating the Parenting Payment it had determined that Ms French and Mr Plummer held combined assets totalling $458,726.[15] The Agency’s two file notes of telephone correspondence with Mr Plummer on 27 July 2020 relevantly stated that:[16]
Advised Parenting Payment has been granted and the arrears to be paid. Ptr was not content with the start date. Advised a claim is not considered lodged until all documents are submitted. In cus case, all the docs were lodged, and thus the claim submitted on 12/5/20. Cus stated lodged an intent to claim. Advised special provisions were put in place for Corona regarding backdating, however, to backdate to the earlier lodged intent to claim, a submitted claim needs to have been received by 8/5/20.
…
Advised ptr of his appeal rights, and ptr has requested a review.
…
Cus believes should have the claim backdated to the intent to claim date. Cus has been advised to be backdated, was required to lodge by 8/5/20. Cus believes due to the volume of documents cus needed to provide should give cus special consideration and allow the claim to be backdated.
[14] Exhibit 1, T8, pages 69-71; T14, page 119.
[15] ibid., page 69; Exhibit 1, T14, page 110.
[16] Exhibit 1, T14, pages 119 and 138.
On 28 July 2020, Ms French formally sought reconsideration of the Agency’s decision to grant her Parenting Payment from 12 May 2020 and not from the date she registered an intention to claim that payment on 23 March 2020.[17] Mr Plummer wrote to the Agency on Ms French’s behalf relevantly stating that:[18]
The special circumstances we seek for the Secretary to consider is the quantity of information that was automatically requested. Angela was asked to provide 43 separate documents to support the claim, amounting to close to 300 pages.
Many of these documents such as the ~150 pages of mortgages were already held by Services Australia so were unnecessarily requested. Further, Angela does not have immediate access to many of the documents so was unable to gather and submit the within 14 days. A special circumstances has arisen due to:
1.     The enormity of the documents requested
2.     The fact many documents were unnecessarily requested as they were already on file
3.     The fact Angela did not have the documents readily available to her
[17] Exhibit 1, T9, pages 73-75.
[18] ibid., page 75.
On 28 October 2020, an ARO affirmed the decision to grant Parenting Payment to Ms French from 12 May 2020 and not an earlier date.[19] Following a discussion with Mr Plummer on 23 October 2020, among the ARO’s findings of fact contained in its decision conveyed to Ms French were that: ‘Your partner advised your claim was not submitted on your contact date, or prior to 12 May 2020, because of the large volume of documents required to be lodged, some of which were required to be obtained from third parties and some which the agency already held’.[20] In the ARO’s record of its discussion with Mr Plummer on 23 October 2020, it relevantly noted that:[21]
In our conversation Mr Plumer [sic] confirmed the reasons for the appeal, as per his letter. He stated that the documents needed to be compiled and information such as profit and loss, balance sheet etc as well as family trust documents from his accountant and other documents form [sic] the bank.
I asked him whether in the 8 week[s] before 27.03.20 any of the vulnerable claimant circumstances applied. He advised the customer was hospitalised overnight on 27.02 and had a day visit on 18.02 but that none of these hospitalisations meant she was unable to have lodged her claim. He confirmed that between the contact date and the date the claim was lodged the sole reasons for the delay was tat they were trying to get the documents together and there was nothing else impacting.
[19] Exhibit 1, T10, pages 76-81.
[20] ibid., page 78.
[21] ibid., page 80.
On 15 December 2020, Ms French stopped receiving Parenting Payment.[22] The letter from the Agency to Ms French dated 16 December 2020, stated that: ‘Your Parenting Payment has been cancelled at your request’. According to the Agency’s records, between 12 May 2020 and 15 December 2020, Ms French received $11,161.69 in Parenting Payment and related supplements from the Agency.[23]
[22] Exhibit 1, T11, pages 82-83.
[23] Exhibit 1, T14, page 109.
On 14 January 2021, Mr Plummer applied to the AAT1, on behalf of Ms French, for review of the ARO decision regarding the start date for her Parenting Payment.[24] The application stated the decision was wrong for the following reasons:[25]
[24] Exhibit 1, T12, pages 84-96.
[25] ibid., page 86.
On or around 23/03/2020 Angela registered her intention to make a claim for Parenting Payment through the MyGov portal. Angela was unable to make her application through the regular Services Australia portal due to IT system issues from an increase in users caused by the Covid-19 pandemic. The process to register an intention to make a claim was created specifically as a workaround to these IT system issues.
The MyGov portal confirmed that ‘If you’re eligible for a payment, you’ll be back-paid from today’ (Annexure A).
Further, social media posts by Services Australia advised that when you register an intent to claim, ‘We’ll backdate your payment to 23 March 2020’ (Annexure B).
Services Australia’s IT system issues were resolved, and a claim was subsequently made through the regular portal.
Angela was asked to provide 43 separate documents to support the claim, amounting to close to 300 pages. This was completed on 12/05/2020.
Services Australia posit that the start date of Parenting Payment should be 12/05/2020, rather than the date the intention to make a claim was made on 23/03/2020.
It is requested that the AAT consider three aspects, being:
1. Registration of the intention to claim should be interpreted to be a claim submission under the Act.
2. The Secretary ought to consider the Special Circumstances as allowed by the Act, specifically, Part 3, Division 1, Subdivision B, Section 13, 3A of the Social Security (Administration) Act 1999.
The special circumstance the Secretary ought to have considered is the quantity of information that was systematically requested. Angela was asked to provide 43 separate documents to support the claim, amounting to close to 300 pages.
Many of these documents such as the ~150 pages of mortgages were already held by Services Australia so were unnecessarily requested. Further, Angela does not have immediate access to many of the documents so was unable to gather and submit them within 14 days. A special circumstance has arisen due to:
a. The enormity of the documents requested
b. The fact many documents were unnecessarily requested as they were already on file
c. The fact Angela did not have the documents readily available to her
As such, it would be reasonable for the Secretary to accept that Special Circumstances existed and backdate the payment to 23/03/2020 as the documents were submitted within 13 weeks of first contact.
3. Angela falls within the definition of ‘class of persons’ as defined by the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018. This is since Angela was hospitalised in the eight weeks prior to contact being first made. This hospitalisation is supported by a letter from the Murrumbidgee Local Health District (Annexure C ).
As Angela meets this definition, subsection 13 (2) of the Act allows for ‘lodgement’ of the claim up to 13 weeks after contact is first made and backdating of the payment to the contact date.
Once due consideration is given to these aspects, it would be reasonable to conclude that the payment ought to be backdated to 23/03/2020.
The outcome sought is orders that the payment is backdated to 23/03/2020.
On 21 April 2021, the AAT1 affirmed the decision not to pay Parenting Payment to Ms French from a date earlier than 12 May 2020.[26]
[26] Exhibit 1, T2, pages 7-14.
On 19 May 2021, Ms French applied to this Tribunal for review of the AAT1 decision.[27] Ms French claimed that decision was wrong for the same reasons as set out in her application to the AAT1, which were reproduced above in these reasons.[28]
LEGISLATION
[27] Exhibit 1, T1, pages 1-6.
[28] Exhibit 1, T1, page 5; T12, page 86.
Social security payment claims
The general rule in subsection 11(1) of the Social Security (Administration) Act 1999 (Administration Act) is that:
Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
Section 16 of the Administration Act relevantly provides that:
(1) A person makes a claim for a social security payment or concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
…
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
…
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
Social security payment start day
Subsection 41(1) of the Administration Act states that, unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s ‘start day’ in relation to the social security payment.
Section 42 of the Administration Act provides that a person’s ‘start day’ is worked out in accordance with Schedule 2 to the Administration Act. Subclause 3(1) of Schedule 2 provides the following general rules for a start day:
(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.
Deemed claims
Section 13 of the Administration Act relevantly provides that:
(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
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; 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.
...
(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
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; 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.
Class of persons determination
Section 14A of the Administration Act relevantly provides that the Minister may, by legislative instrument, determine a class of persons for the purposes of subsections 13(2)(aa) and (3A)(aa), which are set out immediately above in these reasons. Such an instrument, being the Social Security (Administration) (Class of Persons-Intent to Claim) Determination 2018 (Class of Persons Determination), was made on 29 June 2018.
Section 5 of the Class of Persons Determination, relevantly provides that:
For the purposes of paragraphs…(2)(aa)…and (3A)(aa)…of the [Administration] Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:
…
(c) hospitalised or suffering from a temporary incapacity arising from a medical condition;
…
(k) subject to other special circumstances beyond the person’s control.
Section 4 of the Class of Persons Determination defines ‘contact day’ to mean the day on which the Department is contacted by or on behalf of a person in relation to a claim for a social security payment and ‘relevant period’ is defined to mean ‘the period of 8 weeks ending on the contact day’.
Tribunal’s jurisdiction
For completeness, the Tribunal notes that, under section 179 of the Administration Act, an application may be made to the Tribunal for review of a decision of the AAT1 made under subsection 43(1) of the AAT Act. As previously mentioned, the AAT1 made a decision pursuant to subsection 43(1)(a) of the AAT Act affirming the ARO decision that Parenting Payment could not be paid to Ms French from a date earlier than 12 May 2020. This Tribunal therefore has jurisdiction in relation to Ms French’s application for review of the AAT1 decision.
CONSIDERATION
When was the claim made?

As set out above in these reasons, subsection 11(1) of the Administration Act provides that a person who wants to be granted a social security payment must make a claim for that payment. Pursuant to subsection 3(1) of Schedule 2 of the Administration Act, the general rule is that, if the person is qualified for the social security payment, the start day for the person to receive that payment is the day on which the claim is made.
Based on the evidence before the Tribunal, the date on which Ms French registered her intention to claim Parenting Payment is unclear. Mr Plummer, on behalf of Ms French, contended that it was 23 March 2020. However, there was no documentary evidence to support this proposition. Mr Plummer provided an undated screenshot from Ms French’s online myGov account which confirmed that she had registered an intention to make a claim. Additionally, Mr Plummer provided screenshots from the Agency’s Facebook and Twitter accounts from 24 and 25 March 2020, respectively, regarding registering an intent to claim. Despite this uncertainty, for the avoidance of doubt, the Tribunal accepts that on or around 23 March 2020, Ms French registered an intention to claim Parenting Payment.
However, the Tribunal does not accept that registering an intention to claim this social security payment equates to making such a claim in accordance with the Administration Act. On the available evidence, the Tribunal is satisfied that Ms French lodged her claim for Parenting Payment on 12 May 2020. The Agency granted Ms French’s claim from this date. However, Ms French contended that she should be paid Parenting Payment from on or around 23 March 2020, being the date it is accepted that she registered with the Agency an intention to lodge a claim for Parenting Payment. As stated in her application to the Tribunal, Ms French submitted that registration of ‘the intention to claim should be interpreted to be a claim submission under the Act’.[29] She also contended that the Agency’s public communications on or around 23 March 2020 regarding registering an intention to claim a social security payment and being backdated to 23 March 2020, ‘due to the Agency’s inability to receive internet traffic to complete the approved form,’[30] amounted to the Respondent approving this as a manner in which to make a claim.
[29] Exhibit 1, T1, page 5.
[30] ‘Applicant’s Response to the Secretary’s Statement of Issues, Facts & Contentions’ dated 28 October 2021.
Pursuant to section 16 of the Administration Act, a person makes a claim for a social security payment by lodging a written claim for the payment in accordance with a form approved by the Respondent or in a manner approved by the Respondent. The Tribunal is not satisfied that registering an intention to claim a social security payment met the requirements of section 16 of the Administration Act, because it was not in a form or manner approved by the Respondent for making a claim at any time, including on or around 23 March 2020. In this regard, the Respondent’s public communications via various social media channels regarding the process by which a person could then register an intention to claim did not provide for, or amount to, that registration process being an approved manner in which to make a claim. Registering an intention to claim and making a claim are separate and distinct processes. For the foregoing reasons, the Tribunal finds that Ms French did not make a claim for Parenting Payment when she registered an intention to claim that payment on or around 23 March 2020.
In this regard, as the Tribunal found in Griffiths and Secretary, Department of Social Services [2021] AATA 3016 at [26]:[31]
an application cannot be treated as having been made unless, and until, the final declaration on the application process has been completed and lodged: see Aljbour and Secretary, Department of Social Services [2020] AATA 762…The social security law clearly requires a claim to be made in every case, and we consider that a claim requires, at least, the final steps of declaration and lodgement contended for by the Secretary.
[31] See also, Aljbour and Secretary, Department of Social Services [2020] AATA 762.
Ms French created the claim form for Parenting Payment on 27 March 2020, however she did not complete and lodge this claim until 12 May 2020. As a result, the Tribunal finds that Ms French did not make a claim for Parenting Payment in accordance with the requirements of section 16 of the Administration Act before 12 May 2020.
Despite this finding, Ms French may be deemed to have made her claim for Parenting Payment on the day she contacted the Agency if she meets the relevant requirements in section 13 of the Administration Act. The Tribunal considers those requirements and makes associated findings below.
Was Ms French suffering from a medical condition throughout the relevant period that had a significant adverse effect on her ability to lodge the claim earlier?
Ms French contended that she was suffering from a medical condition which had a significant adverse effect on her ability to lodge the claim for Parenting Payment earlier than 12 May 2020 and that therefore her claim should be taken to have been made on the day she contacted the Agency, accepted by the Tribunal as being on or around 23 March 2020.
As set out above in these reasons, section 13 of the Administration Act sets out the applicable deemed claim provisions for a social security payment. Relevantly, subsection 13(2) of the Administration Act provides that:
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
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; 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.
Based on the terms of this provision, Ms French is required to satisfy all of the above criteria in order for subsection 13(2) of the Administration Act to apply so that she would be taken to have made a claim for Parenting Payment on 23 March 2020. For the following reasons, the Tribunal finds that Ms French does not satisfy subsection 13(2)(e) of the Administration Act and therefore cannot satisfy subsection 13(2).
Regrettably, there was little evidence of the medical condition said to have affected Ms French’s ability to lodge her claim for Parenting Payment earlier than when it was submitted on 12 May 2020. As previously detailed in these reasons, the Tribunal had evidence before it from Murrumbidgee Local Health District that Ms French attended the Outpatient Department at the Young Health Service once on 28 February 2020 and twice on 19 March 2020.[32] A discharge referral letter from Young District Hospital on 19 March 2020 stated that Ms French’s presenting complaint was: ‘Pain, chest’.[33] She was admitted and discharged from the Emergency Department within four hours following what was recorded to be an adverse reaction to an undisclosed drug.[34]
[32] Exhibit 1, T12, page 93.
[33] ibid., page 97.
[34] ibid., pages 98-99.
On 23 March 2020, following these attendances at the Young Health Service, Ms French contacted the Agency to register her intention to claim Parenting Payment.
The letter from Dr Lattimore dated 23 August 2021, provided for the purpose of this proceeding, stated that she saw Ms French on 20 March 2020, that is, before Ms French registered her intention to make the claim for Parenting Payment, ‘at which time she was quite unwell with complex medical problems and had recently been in hospital’.[35] Dr Lattimore said that she saw Ms French again on 27 April 2020 and:
she continued to suffer from significant symptoms of her medical illness. For this reason she would have been too unwell to lodge paperwork and supporting documentation with Centrelink by 23/03/2020.
[35] Exhibit 4.
Ms French provided a witness statement in this proceeding dated 24 August 2021, which relevantly stated as follows:[36]
I suffered from various post-partum medical issues in the eight weeks prior to the contact day of 23/03/2020 and was hospitalised on 19/03/2020 due to these medical issues.
I was required by the Department of Social Services to provide 43 separate documents, comprising close to 300 pages, in order for lodgement of the claim to occur.
These medical issues caused an inability for me to lodge the claim on 23/03/2020.
On 23/08/2021 my doctor provided a letter confirming the above.
I was also unable to lodge the claim on 23/03/2020 due to the IT issues the Department of Social Services was experiencing.
I was also unable to lodge the claim on 23/03/2020 in person due to the NSW Government direction that people only consider travel when it is essential.
[36] Exhibit 2. Mr Plummer also provided a witness statement in this proceeding dated 24 August 2021, being Exhibit 3, which was in similar terms to that provided by Ms French.
Notably for the Tribunal’s consideration of the requirements under subsection 13(2)(e) of the Administration Act, while Ms French’s witness statement refers to ‘various post-partum medical issues’ she suffered in the eight weeks before she contacted the Agency on 23 March 2020 making her unable to lodge the claim by this date, it does not refer to the state of her medical condition throughout the relevant period between 23 March and 12 May 2020. Mr Plummer’s witness statement also does not refer to this period of time.
The evidence, including the letter from Dr Lattimore, does not support a finding, as required by subsection 13(2)(e) of the Administration Act, that throughout the period starting on the day on which the Agency was contacted, being 23 March 2020, and ending on the day on which Ms French lodged the claim, being 12 May 2020, Ms French was suffering from a medical condition. There was evidence that Ms French attended the Outpatient Department on three separate occasions over two days before she registered her intention with the Agency to lodge a claim for Parenting Payment on 23 March 2020. The evidence from Dr Lattimore was that Ms French was ‘quite unwell’ on 20 March 2020, being the day following her last attendance at the Outpatient Department with undisclosed ‘complex medical problems’. Dr Lattimore stated that Ms French continued to ‘suffer from significant symptoms of her medical illness’ when she saw her on 27 April 2020, but there was no evidence of Ms French’s state of health in the following two weeks and up until the time she made her claim with the Agency on 12 May 2020. Dr Lattimore’s letter was silent as to Ms French’s health after her consultation on 27 April 2020, noting that the letter was dated 23 August 2021, some 16 months after this last referenced attendance on her by Ms French. In this way, the letter from Dr Lattimore provides no detail in relation to Ms French’s medical condition, including its severity and duration.
In support of the contention that Ms French had an ongoing medical condition throughout the relevant period from the time she registered her intention to claim and the lodgement of that claim, at the hearing, Mr Plummer referred to Ms French’s Medicare claims history and a medical service provided on 28 May 2020, which appears to be in relation to a blood test, and to an ultrasound performed on 21 July 2020.[37] These two episodes of service were outside the relevant period and do not disclose the nature or reason for attendance and whether it related to Ms French’s medical condition the subject of her application. In this way, there was no conclusive independent evidence to satisfy the Tribunal that Ms French was suffering from a medical condition throughout the relevant period, being 23 March to 12 May 2020, for the purpose of subsection 13(2)(e) of the Administration Act. In this regard, it is not ‘unreasonable’, as submitted on behalf of Ms French,[38] for the Tribunal to not be satisfied of her medical condition after 27 April 2020 due to a lack of evidence. Such evidence could have been in the form of a detailed medical report regarding Ms French’s condition and its duration, including over the relevant period for the purpose of subsection 13(2)(e) of the Administration Act, and why this medical condition had a significant adverse effect on Ms French’s ability to lodge the claim earlier than 12 May 2020. For the foregoing reasons, the Tribunal is not satisfied, on the available evidence, that throughout the period from 23 March to 12 May 2020, Ms French was ‘suffering from a medical condition’ as required by subsection 13(2)(e)(i) of the Administration Act.
[37] Exhibit 1, T13, page 102.
[38] ‘Applicant’s Response to Secretary’s Statement of Issues, Facts & Contentions’ dated 28 October 2021.
The Tribunal is also not satisfied, based on the above evidence and findings, that Ms French’s medical condition, or circumstances related to that medical condition, had a significant adverse effect on her ability to lodge the claim earlier than when she did on 12 May 2020, as required by subsection 13(2)(e)(ii) of the Administration Act. There was insufficient evidence before the Tribunal to be satisfied that Ms French suffered a medical condition throughout the relevant period and that it had a significant adverse effect on her ability to lodge the claim earlier than 12 May 2020. In this regard, the Tribunal notes that the purported impact of Ms French’s medical condition on her ability to lodge the claim earlier than 12 May 2020 was only raised as a reason in her application to the AAT1 in May this year. Before this time, it was contended on behalf of Ms French that she was unable to make her claim any earlier than 12 May 2020 because of the volume of documentation requested by the Agency to consider her eligibility for the Parenting Payment and because she did not have immediate access to much of the documentation.[39] In addition, Ms French’s witness statement in this proceeding (and Mr Plummer’s) did not refer to her suffering from a medical condition throughout the time from when she registered her intention to claim and finally made that claim and also explain why her medical issues had a significant adverse effect on Ms French’s ability to lodge her claim for Parenting Payment earlier than 12 May 2020; it merely stated that the medical issues from which she suffered ‘in the eight weeks prior to the contact day’ led to ‘an inability for me to lodge the claim on 23/03/2020’.[40] For reasons set out below in this decision, the Tribunal finds that, from the time Ms French registered her intention to claim Parenting Payment, the reason for her delay in making that claim was because she did not have immediate or ready access to the required documentation to substantiate that claim.
[39] Exhibit 1, T14, page 119; T9, page 75; T10, page 80
[40] Exhibits 2 and 3.
As a result of the Tribunal’s finding in relation to subsection 13(2)(e) of the Administration Act and the conjunctive nature of subsection 13(2), requiring all criteria in that subsection be satisfied, it follows that Ms French cannot be deemed to have made a claim for Parenting Payment on the day on which she contacted the Agency on 23 March 2020 pursuant to subsection 13(2) of the Administration Act.
Was it not reasonably practicable to lodge the claim earlier in the special circumstances of the case?
Ms French also contended that there were special circumstances that made it not reasonably practicable for her to lodge the claim for Parenting Payment earlier than 12 May 2020 and that therefore her claim should be taken to have been made on the day she contacted the Agency, accepted by the Tribunal as being on or around 23 March 2020.
As set out above in these reasons, section 13 of the Administration Act sets out the applicable deemed claim provisions for a social security payment. Relevantly, subsection 13(3A) of the Administration Act provides that:
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
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; 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.
Based on the terms of this provision, Ms French is required to satisfy all criteria in order for subsection 13(3A) of the Administration Act to apply so that she would be taken to have made a claim for Parenting Payment on 23 March 2020, rather than when she lodged her claim on 12 May 2020. For the following reasons, the Tribunal finds that Ms French does not satisfy subsection 13(3A)(e) of the Administration Act and therefore cannot satisfy the requirements of subsection 13(3A).
What are special circumstances?
While the phrase ‘special circumstances’ is not defined in the relevant social security legislation, it has been considered in numerous decisions of the Tribunal and the Federal Court of Australia. For example, in Dranichnikov v Centrelink [2003] FCAFC 1333 at [66], the Full Federal Court said that ‘[t]here will be a requirement that the circumstances are such that take the case out of the ordinary’.
In Groth and Secretary Department of Social Security [1995] FCA 1708 at [12], Justice Kiefel (as she then was) stated that special circumstances:
would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case…It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
Finally, in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, the Federal Court at [33] stated that ‘there must be something that distinguishes the case from the ordinary or usual case’.
Ms French contended there were three relevant factors amounting to special circumstances, such that the deemed claim provisions should apply from when she registered her intention to claim Parenting Payment on 23 March 2020 and not when her claim was lodged on 12 May 2020. These circumstances were, the voluminous documents requested by the Agency in support of Ms French’s claim for Parenting Payment, the associated waiver of the assets test and her medical condition. The Tribunal considers those factors below in these reasons.
Did the Agency’s request for documentation amount to special circumstances?
As set out above in these reasons, Ms French’s application for review to this Tribunal (and the AAT1) contended that the request by the Agency for her to provide documentation in support of her claim for Parenting Payment amounted to special circumstances which meant that it was not reasonably practicable for her to lodge that claim earlier than 12 May 2020. Specifically, Ms French submitted that:[41]
The special circumstance the Secretary ought to have considered is the quantity of information that was systematically requested. Angela was asked to provide 43 separate documents to support the claim, amounting to close to 300 pages.
Many of these documents such as the ~150 pages of mortgages were already held by Services Australia so were unnecessarily requested. Further, Angela does not have immediate access to many of the documents so was unable to gather and submit them within 14 days. A special circumstance has arisen due to:
a. The enormity of the documents requested
b. The fact many documents were unnecessarily requested as they were already on file
c. The fact Angela did not have the documents readily available to her
[41] Exhibit 1, T1, page 5.

At the hearing, Mr Plummer, on behalf of Ms French, emphasised that the requirement of the Agency for Ms French to provide documentation to support her claim when the usual eligibility criteria to receive Parenting Payment had been waived due to the COVID-19 pandemic made the request unusual or out of the ordinary. This specifically related to the assets test, which, it appears on the evidence, Ms French would not satisfy given her interest in multiple residential properties. That is, Ms French would likely not have ordinarily been eligible to receive Parenting Payment.
The Tribunal agrees with the submission of the Secretary that it is a novel contention that being requested to provide documentation, even if considered voluminous, to support a claim for a social security payment amounts to special circumstances. The Tribunal does not accept the contention that such a requirement is unusual or out of the ordinary, including in circumstances where the normal eligibility criteria for the payment had been waived such that the assets test was no longer applicable due to the Commonwealth’s economic response to the COVID-19 pandemic, noting again that such test would likely have made Ms French ineligible for the Parenting Payment in normal circumstances. In this regard, the Tribunal is not satisfied that the Agency’s request or supporting documentation, despite the assets test being waived, can be classified as unjust or unfair, including because Ms French received a social security payment for which she ordinarily would not have been eligible due to that assets test waiver.
Furthermore, the Tribunal does not accept the submission, made on behalf of Ms French, that ordinarily a claimant for Parenting Payment would not have to submit an equivalent amount of documentation because ‘they would simply not have the assets that the Agency requires the details of’. While it may be that most claimants for Parenting Payment fall into this category, it does not follow that all claimants would not have some assets that need to be disclosed and verified by way of supporting documentation. That is why there is a claims process undertaken by the Agency: to determine a person’s eligibility for a social security payment. The Tribunal is not satisfied that being required to provide more documents than may ordinarily be required when applying for a social security payment is a special circumstance. It is not unusual or out of the ordinary for applicants for a social security payment to be required to provide evidence of their financial situation and it is not remarkable that Ms French was required to do the same in relation to her claim for Parenting Payment. In this regard, and for the avoidance of doubt, the Tribunal is also not satisfied that the waiver of the assets test in relation to the Parenting Payment is a special circumstance that made it not reasonably practicable for Ms French to lodge the claim earlier than 12 May 2020. The Tribunal is not satisfied that the Parliament intended for the provision of documentation to support a claim and a waiver of the assets test to be capable of being classed as special circumstances such that a claim should be deemed to have been made earlier than when it was lodged with the Agency. To this end, for the reasons set out above, these circumstances are not distinguishable from the ordinary or usual case and do not involve the occurrence of something that is unfair, unintended or unjust.
As referred to above in these reasons in relation to the criterion in subsection 13(2)(e) of the Administration Act, the Tribunal finds that the reason Ms French did not lodge her claim earlier than 12 May 2020 was because she did not until that time have access to the requisite documentation to make her claim for Parenting Payment. The contemporaneous evidence in this proceeding supports this finding. For example, Mr Plummer told the Agency in his request for review of its decision that Ms French ‘does not have immediate access to many of the documents so was unable to gather and submit them within 14 days’.[42] In the ARO’s file note of a telephone call with Mr Plummer, it stated that he confirmed that ‘between the contact date and the date the claim was lodged the sole reasons for the delay was that they were trying to get the documents together and there was nothing else impacting’.[43] At the hearing, Mr Plummer told the Tribunal he did not recall saying such a thing to the ARO, it would be ‘odd’ to have been asked the relevant questions and he refuted the veracity of the conversation recorded in the file note. The Tribunal does not accept this evidence and prefers the contemporaneous file note of the ARO, which is supported by other evidence previously referred to in these reasons regarding the basis for Ms French’s failure to lodge the claim any earlier than 12 May 2020. The Tribunal considers it reasonably likely the ARO asked such questions of Mr Plummer in order to identify the bases of Ms French’s claim and to make an appropriate determination in its review.
[42] Exhibit 1, T9, page 75.
[43] Exhibit 1, T10, page 80.
On the available evidence, while Ms French did provide a large amount of documentation in support of her claim for Parenting Payment, a requirement to provide such documents in order to allow the Agency to assess her personal and financial circumstances and therefore eligibility for that social security payment is, in the Tribunal’s view, entirely normal. It certainly does not rise to the level of being special. In this regard, there was nothing about the requirement of the Agency for Ms French to provide supporting documents that distinguishes it from the ordinary or usual case such that special circumstances could be found by the Tribunal. Accordingly, the Tribunal is not satisfied that the Agency’s request for documentation in relation to Ms French’s claim amounted to special circumstances such that it was not reasonably practicable for her to lodge that claim earlier than when she did on 12 May 2020.
Does Ms French’s medical condition amount to special circumstances?
The Tribunal is also not satisfied that Ms French’s medical condition amounted to special circumstances that made it not reasonably practicable for her to lodge the claim for Parenting Payment earlier than when she did on 12 May 2020. The weight of evidence does not support such a proposition.
As previously detailed in these reasons, Ms French’s undisclosed medical condition led her to attend the Outpatient Department on three separate occasions, once on 28 February 2020 and twice on 19 March 2020, all of which were before she registered her intention to lodge a claim for Parenting Payment on or around 23 March 2020.
The letter from Dr Lattimore dated 23 August 2021 stated that she saw Ms French on 20 March 2020, also before she registered an intention to claim Parenting Payment. However, Dr Lattimore’s correspondence did state that she later saw Ms French on 27 April 2020, ‘at which time she continued to suffer from significant symptoms of her medical illness’.[44] Dr Lattimore proceeded to state that due to her condition Ms French ‘would have been too unwell to lodge paperwork and supporting documentation with Centrelink by 23/03/2020’. The specific medical condition suffered by Ms French remained undisclosed in this proceeding, and she did not give evidence at the hearing, but it appears to relate to post-partum issues following the birth of her second child in December 2019. In her witness statement dated 24 August 2021, Ms French said that she ‘suffered from various post-partum medical issues in the eight weeks prior to the contact day of 23/03/2020 and was hospitalised on 19/03/2020 due to these medical issues’.[45] While Ms French did not state that her medical condition continued beyond the date she registered her intention to lodge a claim for Parenting Payment on 23 March 2020, the Tribunal accepts, on the evidence of Dr Lattimore, that these issues continued until 27 April 2020 when Ms French attended her treating doctor.
[44] Exhibit 4.
[45] Exhibit 2.
However, the Tribunal is not satisfied on the available evidence that Ms French’s medical condition amounts to a special circumstance that made it ‘not reasonably practicable’ in the terms of subsection 13(3A) of the Administration Act, to lodge her claim any earlier than when she did on 12 May 2020. While Dr Lattimore’s written evidence was that Ms French ‘would have been too unwell to lodge her paperwork and supporting documentation’ by 23 March 2020, the evidence demonstrates that this was not the issue faced by Ms French in order to lodge her claim by this date or before 12 May 2020. Dr Lattimore’s letter does not provide any detail regarding Ms French’s medical condition or the basis upon which it is said to have prevented her from lodging her claim on 23 March 2020. The weight of evidence leads to the conclusion that Ms French did not have the required documentation to make her claim on 23 March 2020, not that she was prevented from doing so because of her medical condition. The requirement to provide supporting documentation for her claim was the reason Ms French initially sought review by the ARO of the decision not to grant her Parenting Payment from a date earlier than 12 May 2020.
For the reasons set out above in this decision, the Tribunal has found that the requirement for Ms French to provide supporting documentation was not a special circumstance. For completeness, the Tribunal again notes that a contemporaneous file note of a discussion with Mr Plummer on 20 July 2020 stated that: ‘Cus believes due to the volume of documents cus needed to provide, should give cus special consideration and allow the claim to be backdated’.[46] There was no mention at that time of Ms French’s medical condition. By letter dated 28 July 2020, Mr Plummer advised the Agency that the basis for the special circumstances claim was ‘the enormity of the documents requested’, many documents were already held by the Agency and Ms French ‘did not have the documents readily available to her’.[47] Again, there was no mention of Ms French’s medical condition. Furthermore, the ARO’s contemporaneous file note of a discussion with Mr Plummer on 23 October 2020 recorded that he confirmed the reasons for the appeal were as set out in his letter to the Agency and ‘none of these hospitalisations [before 23 March 2020] meant she was unable to have lodged her claim’. In addition, the file note states that Mr Plummer confirmed that ‘between the contact date [23 March 2020] and the date the claim was lodged [12 May 2020] the sole reasons for the delay was that they were trying to get the documents together and there was nothing else impacting’.[48] In this regard, the file note did not record Ms French’s medical condition as being a reason for the claim not being made earlier than 12 May 2020. As set out above, Mr Plummer told the Tribunal that he did not recall making these statements, refuted that they were made and said the line of questioning from the ARO as recorded in the file note would have been ‘odd’. However, the Tribunal has found that the contemporaneous file note is an accurate record of the conversation and reflects the basis of Ms French’s claim for Parenting Payment to be paid from 23 March 2020 at the time of the Agency’s decision, being the requirement to provide documentation. Accordingly, the ARO’s questioning of Mr Plummer as recorded in the file note appears entirely appropriate in the circumstances.
[46] Exhibit 1, T14, page 138.
[47] Exhibit 1, T9, page 75.
[48] Exhibit 1, T10, page 80.
In addition, the applications to the AAT1 and this Tribunal did not raise Ms French’s medical condition as being a reason for the special circumstances provision to be applied in her case; the special circumstance referred to was the quantity of documentation requested by the Agency to support the claim. The AAT1 decision records Mr Plummer having described at the AAT1 hearing the special circumstances applicable to Ms French that prevented her from lodging her claim until 12 May 2020.[49] These circumstances concerned the documentation and not Ms French’s medical condition. On the available evidence, the Tribunal does not accept that Ms French’s medical condition was unusual or out of the ordinary to make it a special circumstance as required by subsection 13(3A)(e) of the Administration Act. For the abovementioned reasons, the Tribunal is not satisfied, on the totality of the evidence, that Ms French’s medical condition was a special circumstance such that it made it not reasonably practicable for her to lodge her claim for Parenting Payment earlier than 12 May 2020. Therefore, Ms French cannot be deemed to have made her claim on the day the Agency was contacted on or around 23 March 2020. Accordingly, Ms French was correctly paid Parenting Payment from the date she made her claim on 12 May 2020, pursuant to section 42 and Schedule 2 of the Administration Act.
[49] Exhibit 1, T2, page 11 at [21].
For all of the above reasons, the Tribunal is not satisfied that section 13(3A)(e) of the Administration Act applies in relation to Ms French’s claim for Parenting Payment. Accordingly, Ms French cannot satisfy subsection 13(3A) and her application to be paid Parenting Payment from a date earlier than when she lodged her claim on 12 May 2020 is unsuccessful.
Coronavirus provisions
For completeness, the Tribunal is satisfied that the provisions inserted into section 13 of the Administration Act by the Social Security (Coronavirus Economic Response – 2020 Measures No. 1) Determination 2020 and the Social Security (Coronavirus Economic Response – 2020 Measures No. 9) Determination 2020, being sections 13(3B), (3C) and (3D) are not applicable, because in order for them to be enlivened a person was required to have lodged a claim for a social security payment by no later than 19 April 2020 and 8 May 2020, respectively. The first of these Determinations deemed a person to have made a claim for a social security payment, if eligible, if they made an unsuccessful attempt to contact the Agency between 23 and 28 March 2020, but lodged a claim no later than 19 April 2020. The second of the Determinations amended this date to be no later than 8 May 2020.
As set out above in these reasons, while Ms French contacted the Agency on or around 23 March 2020 to register her intention to claim Parenting Payment, she did not lodge that claim until 12 May 2020. Accordingly, Ms French cannot rely on these Determinations and the Tribunal accordingly finds that they are not applicable.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.............[sgd]...........................................................
Associate
Dated: 22 December 2021

Date of hearing: 10 December 2021

Applicant’s Representative:

Solicitor for Respondent:

Mr Simon Plummer

Mr Damien Carroll, King & Wood Mallesons

[2021] AATA 4779

22 December 2021

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