Froeschl and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 79

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 79

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4448

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEF FROESCHL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date31 January 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – double orphan pension – application for payment prior to deemed claim date – no entitlement to payment from earlier date – decision affirmed

Social Security Act 1991 ss993, 999
Social Security (Administration) Act 1999 ss11, 13, 41

REASONS FOR DECISION

31 January 2008	Senior Member P McDermott, RFD
Introduction

1.      Mr Josef Froeschl has the care of a child who has a deceased father and an uncontactable mother.  

2.      I have to decide whether social security law permits the payment of double orphan pension to Mr Josef Froeschl from an earlier date: that is, when he made a claim for family tax benefit.

PRIOR DECISIONS

3.      On 29 March 2007 the respondent made a decision to pay a double orphan pension to Mr Froeschl with effect from 7 March 2007; the deemed date of claim. On 25 June 2007 an authorised review officer of Centrelink affirmed that decision not to pay this benefit from an earlier date.

4.      On 24 August 2007 the Social Security Appeals Tribunal affirmed that decision.

5.      Mr Froeschl has made an appeal from the Social Security Appeals Tribunal to this Tribunal to review the decision not to pay a double orphan pension from an earlier date.

ELIGIBILITY CRITERIA

6. The entitlement to a double orphan pension is conferred by s 999 of the Social Security Act1991 (“the Act”).

7. The Secretary quite properly concedes that Mr Froeschl has been qualified to receive double orphan pension since the death of the father of the child. The child’s father is deceased and the mother is uncontactable. I am satisfied that the child is an FTB child of Mr Froeschl. I am also satisfied the child is a double orphan within the meaning of s 993(2) of the Act. I therefore find the applicant is qualified for a double orphan pension pursuant to s 999 of the Act. I find that the child is a double orphan as required by s 999 of the Act. For privacy reasons, there is no need for me to discuss more of the circumstances of the child. I only wish to add that I have no doubt that Mr Froeschl is providing the child with the best of care.

8. I also mention that Mr Froeschl was not entitled to be paid double orphan pension until he made a claim for that benefit. This is as a consequence of s. 11 of the Social Security (Administration) Act 1999 (“the Administration Act”), It provides that a person must first make a claim for a benefit in order to be granted that benefit.

9. On 7 March 2007 Mr Froeschl contacted Centrelink to enquire about making a claim for a double orphan pension. He made a claim on 8 March 2007 which was within 14 days of his enquiries. Pursuant to s 13 of the Administration Act the deemed date of his claim was 7 March 2007.

ISSUE FOR DETERMINATION

10. I am required to determine whether social security law permits the payment of double orphan pension to Mr Josef Froeschl from a date earlier than the deemed date of his claim. I must consider s 41 of the Administration Act which provides for the payment of a claim to be made from the ‘start day’. The rules for working out a ‘start day’ are provided for in Schedule 2 of that Act. The effect of clause 3 of Schedule 2 is that the ‘start day’ is the date on which a qualified person makes a claim.

FINDINGS OF TRIBUNAL

11.     On 15 April 2003 Mr Froeschl lodged a claim form for family tax benefit. On that claim form one question asks: “Is this child an orphan?” Mr Froeschl did not answer that question (Supplementary T-Documents. [T1], fol. 20). I appreciate it was a stressful time for Mr Froeschl.

12.     Mr Froeschi first informed Centrelink about the orphan status of the child on 7 March 2007 when he enquired about his eligibility for a double orphan pension. I have mentioned earlier that date is the deemed date of his claim because of the operation of social security law

13. I do not consider that social security law permits the payment of double orphan pension to Mr Josef Froeschl from a date earlier than the deemed date of his claim. Section 41 of the Administration Act provides that the ‘start day’ is the date on which a qualified person make a claim.

14. For the sake of completeness I should mention that during the hearing I drew the parties’ attention to the words “Unless another provision of the social security law provides otherwise…” which appear at s 41 of the Administration Act. I rose for consideration whether those words made operative some other provision of the Act which enabled a payment to be made from an earlier date than the deemed date of claim. I am now satisfied, after receiving assistance from the advocate for the Secretary, there is no applicable provision of the Act in this instance which would enable a payment to be made from an earlier date.

DECISION 

15.     I affirm the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD

Signed:         .....................................................................................
  E. Young Legal Research Officer

Date/s of Hearing  10 December 2007
Date of Decision  31 January 2008
For the applicant  Self-represented  
For the respondent  Ms Brazier, a departmental advocate