FZMF and Secretary, Department of Social Services (Social services second review) - [2025] ARTA 2215

FZMF and Secretary, Department of Social Services (Social services second review) [2025] ARTA 2215 (22 October 2025)
Applicant/s:  FZMF
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/2053

Tribunal:Deputy President K Dordevic (second review)
Place:Sydney
Date:22 October 2025

Decision:The Tribunal affirms the decision under review.

.........................[Sgd]...........................................
Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – age pension – qualification for age pension - start date for social security payment – application of applicable law – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Formosa and Another v Secretary, Department of Social Security (1988) 81 ALR 687
Secondary Materials
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018
Statement of Reasons

This application is brought by FZMF (Applicant) who seeks payment of age pension from a date earlier than 27 June 2023.
RELEVANT BACKGROUND
The Applicant departed Australia in November 2019.
The Applicant met the age requirements for age pension in August 2020.
The Applicant returned to Australia on 24 June 2023.
On 27 June 2023 the Applicant submitted a claim for age pension and on 11 July 2023 Services Australia – Centrelink (Centrelink) granted the claim with effect from 27 June 2023.
The Applicant requested a review of the decision to pay him age pension from 27 June 2023 and not before.
On 1 September 2023 an authorised review officer affirmed the decision.
The Applicant requested independent merits review of the authorised review officer’s decision on 14 November 2023 by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT). The decision was affirmed on 20 March 2024.
On 4 April 2024 the Applicant sought review with the General Division of the AAT.
From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). This decision and statement of reasons is made by the Tribunal. [1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The hearing took place on 9 September 2025. Both parties participated by MS Teams Video. The Applicant was assisted at hearing by a Mission Australia case worker, Ms Dhaubhadel. Services Australia was represented by an internal lawyer Ms Shreya Kalia. The Tribunal had before it the hearing papers, including the Respondent’s Statement of Facts, Issues and Contentions, the section 25 documentation in addition to the Applicant’s filed statements.
ISSUES
The issue to be resolved in this matter is from what date is age pension is payable to the Applicant.
LEGISLATIVE SCHEME
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (Act) and the Social Security (Administration) Act 1999 (Administration Act).
Section 43 of the act outlines when a person is qualified for age pension:
43 Qualification for age pension
(1) A person is qualified for an age pension if the person has reached
pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age
pension;
(c) the person was receiving a widow B pension, a widow
allowance, a mature age allowance or a partner allowance,
immediately before reaching that age;
(d) if the person reached pension age before 20 March 1997—the
person was receiving a widow B pension, a widow allowance
or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
Note 2: For pension age see subsections 23(5A), (5B) (5C) and (5D).
Subsection 11(1) of the Administration Act states that the general rule is that, in order for a person to be granted a social security payment, the person must lodge a claim for the payment:
11 General rule
(1) 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.
Subsections 13(1) to (4) of the Administration Act states that if a Department is contacted by or on behalf of a person in relation to a social security payment and, provided other criteria are met including the person is in a class of persons determined under in an instrument, the person may be paid from the date of first contact in certain circumstances:
(1) 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
within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(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.
(3) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(aa) the claimant 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 claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(d) the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;
the claimant 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.
(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of fax, computer equipment or other electronic means.
(5) This section has effect subject to section 18.
The relevant instrument under section 14A of the Administration Act is the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Determination).
Section 5 of the Determination declares 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,[2] the person is:
[2] Defined at Clause 4 as the period of 8 weeks ending on the contact day.
(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.
Subsections 16(1), (4) and (7) of the Administration Act states that a person makes a claim for a social security payment by lodging a written claim or in the manner approved by the Secretary and the written claim is lodged by being delivered to a person performing duties at a place approved by the Secretary or in a manner and place approved by the Secretary:
16 How to make a claim
(1) A person makes a claim for a social security payment or a
concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
…
(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.
Subdivision B of Part 3, Division 1 of the Administration Act outlines cases where claims are not necessary including, at subsection 12(1), where a person becomes qualified for age pension when receiving another income support payment:
12 Deemed claim in certain cases
(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
Subsection 41(1) and section 42 of the Administration Act state when a social security payment commences:
41 Commencement
(1) 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.
(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.
42 Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
Subclause 3(1) of Schedule 2 to the Administration Act states that the general rule is that a person can only be paid from the date of a claim:
3 Start day—general rule
(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.
Note: Clause 4A applies instead of this subclause to claims for jobseeker payment and youth allowance in certain circumstances.
Subclause 4(1) of Schedule 2 to the Administration Act states that the general rule is that a person can only be paid from the date of a claim:
4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Clause 29 of Schedule 2 to the Administration Act states that the general rule is that a claim for age pension may only be made by a person who is an Australian resident and is in Australia:
29 General rule
(1) Subject to sections 30, 30A, 31 and 31A, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31 and 31A, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
CONSIDERATION
The Applicant’s evidence
The Applicant gave the following evidence at hearing, summarised as follows. He paid tax at all times when working. He did not work in easy jobs. He is entitled to age pension and is in fact more deserving than others to the payment. He left Australia in 2019 and went to Vietnam. He lived in a remote area for almost a year. COVID 19 hit and he could not return to Australia. He contacted the Australian consulate again and again to seek assistance, but none was forthcoming. They never assisted him in lodging an online claim for the pension; they were only interested in his passport. He was prevented from returning to Australia and then lost all his possessions that remained in Australia. He just could not believe it. He cannot understand why the Australian government did not protect his possessions that were held in storage whilst he was stuck in Vietnam. Consequently, he lost all his hard copy and electronic documents as well as both his email addresses. It was totally unfair that he was required to lodge his claim online when he has limited computer skills. It is an insult to return to Australia and only be provided the pension from the date of his claim. He should be backpaid the pension from the date he turned age pension age.
The Applicant stressed that he did not go overseas to live; if Centrelink says otherwise they must prove it. He went overseas on a “brief holiday” and then could not return because of COVID 19 lockdowns. His return ticket was cancelled and he had four or five return flights cancelled. He and other Australians stuck in Vietnam were given no assistance and were continually scammed. He was treated as a criminal.
He does not dispute that he did not lodge a claim for age pension prior to 27 June 2023. However, he stressed that this was because he was in Vietnam. He did have the use of a laptop for some time however a cleaner dropped it and he could not use it. He tried other ways of accessing Centrelink online, but was always asked to provide a government ID and another type of ID. He did not have the information available to him to access the system. He did not contact Centrelink because he did not have any contact numbers because he did not have a laptop and his phone was only basic and did not allow him to undertake internet searches. In any event, Centrelink should have contacted him, because he was stranded. He has lodged three appeals. It has been difficult. The bottom line is that the system needs to be more humane rather than just turning around and saying no. It has “stuffed up” his retirement.
From what date is age pension payable?
In Formosa and Another v Secretary, Department of Social Security (1988) 81 ALR 687 the Full Federal Court held, in relation to the preceding social security act that is largely reflected in the current provisions, that a claim in writing was a “of central importance” though substantial compliance was permissible.
The Applicant does not dispute the relevant facts. He was overseas from November 2019. He turned aged pension age in August 2020 and did not return to Australia until 24 June 2023. He lodged his first and only age pension claim some three days later and was paid the pension from that date. He made no formal or informal contacts with Centrelink from the date he turned aged pension age in August 2020 until 27 June 2023. I find accordingly.
I accept the Applicant’s evidence that he had no access to a smart phone or computer to enable him to lodge his claim before his return to Australia. However, this does not assist him, as not only is a person required to lodge a claim pursuant to section 13 of the Administration Act, but clause 29 of Schedule 2 to the Administration Act states that a claim for a social security payment can only be made by a person who is in Australia. Therefore, whether the Australian consulate or Centrelink should have provided him assistance in claiming the pension whilst he was in Vietnam is moot; even if he had received such assistance to lodge the claim whilst overseas he was still not in Australia as required.
The deemed claim provisions also do not provide any assistance to the Applicant. Again, the Applicant does not assert that he notified Centrelink of his intention to claim age pension in the 13 week period prior to 27 June 2023. Certainly, there is no evidence that he did. Therefore, there can be no backdating to a date he notified Centrelink of his intention to lodge a claim.
If follows that the Applicant cannot be paid age pension at any date prior to 27 June 2023 and the decision under review is correct.
I recognise that the Applicant finds that the outcome of this application is unfair and punitive given his work history and circumstances during the COVID 19 lockdowns. However, in the particular circumstances of his case, there is no legislative provision that provides me with a discretion to take these factors into account and order Centrelink to back pay him age pension for any period prior to 27 June 2023. As discussed at hearing the Applicant may be eligible for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (also referred to as the CDDA Scheme).[3] The Tribunal does not review matters under the CDDA Scheme.
[3] cellpadding="0" cellspacing="0"> Date(s) of hearing: 9 September 2025 Advocate for the Applicant: Ms P Dhaubhadel, Mission Australia Solicitors for the Respondent: Ms S Kalia, Services Australia