Ghanavi and Secretary, Department of Social Services (Social services second review)
[2022] AATA 552
•28 March 2022
Ghanavi and Secretary, Department of Social Services (Social services second review) [2022] AATA 552 (28 March 2022)
Division: GENERAL DIVISION
File Number: 2021/3853
Re:Gholamreza Ghanavi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date of decision: 28 March 2022
Place:Brisbane
The Tribunal affirms the decision under review.
..................SGD..........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Age Pension – date of claim – start day – decision under review affirmed
LEGISLATION
Social Security Administration Act 1999 (Cth)
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)REASONS FOR DECISION
Member D Mitchell
28 March 2022
INTRODUCTION
By way of application dated 4 June 2021, Mr Gholamreza Ghanavi (the Applicant) sought a second-tier review[1] of a decision made by the Social Services and Child Support Division (SSCSD)[2] on 12 May 2021.
[1] Exhibit 1, T-Documents, T1, pages 1-2, Application for Review.
[2] Exhibit 1, T-Documents, T2, pages 3-6, Decision of the SSCSD.
The decision the Applicant is seeking to be reviewed relates to the commencement date on which his grant of Age Pension should be paid.
BACKGROUND
On 13 August 2020, the Applicant attended one of the Respondent’s service centre offices to advise that his marital status had changed as he was now separated and to seek information about making a claim for Age Pension.[3]
[3] Exhibit 1, T-Documents, T13, page 116, Applicant’s Centrelink Document List and Customer Contact File Notes and Exhibit 2, Supplementary T-Documents, ST5, page 22, Applicant’s Centrelink Martial Status Screen.
The Applicant was provided with a letter outlining the requirements for completing a claim for Age Pension, the paper claim form and an income and assets form.[4]
[4] Exhibit 1, T-Documents, T4, pages 38-50 , Letter to the Applicant regarding eligibility for payment of Age Pension and attachments and Exhibit 2, ST1, pages 1-15, Income and Assets form.
On 28 August 2020, the Applicant contacted the Respondent and discussed his claim for Age Pension and advised that he was separated from his wife and they continued to live under the same roof.[5]
[5] Exhibit 1, T-Documents, T13, page 117, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 2 September 2020, the Applicant contacted the Respondent seeking assistance with applying for Age Pension using myGov to connect to Centrelink Online.[6] The Applicant then started an online claim for Age Pension.[7]
[6] Exhibit 1, T-Documents, T13, page 119, Applicant’s Centrelink Document List and Customer Contact File Notes.
[7] Exhibit 2, Supplementary T-Documents, ST6, page 23, Applicant’s Centrelink Assisted Customer Claim Screen.
On 4 September 2020, the Applicant contacted the Respondent in relation to his Age Pension claim. It was noted that he was separated but living under the same roof with his former partner and a Separated under One Roof form was sent to him.[8]
[8] Exhibit 1, T-Documents, T13, page 120, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 8 October 2020, the Applicant contacted the Respondent regarding his Age Pension claim.[9]
[9] Exhibit 1, T-Documents, T13, page 121, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 9 October 2020, the Applicant returned to the service centre office and advised that his paper forms were missing pages. He was provided with new paper forms for claiming the Age Pension and the Income and Assets form.[10]
[10] Exhibit 1, T-Documents, T13, page 120, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 12 October 2020, the Applicant again returned to the service centre office and lodged completed claim for Age Pension, Income and Assets and Separated under One Roof forms[11] which were uploaded to his Centrelink record.[12]
[11] Exhibit 1, T-Documents, T5, pages 51-88, Claim for Age Pension.
[12] Exhibit 2, Supplementary T-Documents, ST4, page 22, Applicant’s Centrelink Document Tools Screen.
On 22 October 2020, the Respondent sent a letter to the Applicant requiring him to provide further information so that his correct rate of payment for Age Pension could be determined.[13]
[13] Exhibit 2, Supplementary T-Documents, ST3, page 18, Letter from the Respondent to the Applicant – Request for Further Information.
On 4 November 2020, the Applicant attended the service centre office and provided the requested information and his claim was submitted for processing.[14]
[14] Exhibit 1, T-Documents, T13, page 122, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 18 November 2020, the Applicant was granted Age Pension from 12 October 2020.[15]
[15] Exhibit 1, T-Documents, T7, page 91, Decision letter .
On 10 December 2020, the Applicant sought review of the start date of his Age Pension as he said he had been advised that he would be paid from 13 August 2020.[16] A Subject Matter Expert reviewed the Applicant’s request and affirmed the decision.[17]
[16] Exhibit 1, T-Documents, T13, page 125, Applicant’s Centrelink Document List and Customer Contact File Notes.
[17] Exhibit 1, T-Documents, T13, page 126, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 14 December 2020, the Applicant requested an Authorised Review Officer (ARO) review the decision in relation to the commencement date of his Age Pension.[18]
[18] Exhibit 1, T-Documents, T8, page 94, Letter confirming the Applicant’s request for an ARO review and T13, page 127, Applicant’s Centrelink Document List and Customer Contact File Notes.
On 11 January 2021, an ARO reviewed and affirmed the decision to pay the Applicant from 12 October 2020.[19] The ARO provided the following reasons for their decision:[20]
[19] Exhibit 1, T-Documents, T10, pages 97-101, Decision and notes of the ARO.
[20] Exhibit 1, T-Documents, T10, page 98, Decision and notes of the ARO.
Reasons for the outcome
A payment is generally paid from the day a claim is submitted. However, payment may start earlier or later depending on the circumstances, including if the person is a vulnerable claimant.
You contacted us about making a claim on 13 August 2020 and submitted a claim on 12 October 2020. You are not considered to be a vulnerable claimant. This means the start day for your Age Pension is 12 October 2020.
You advised you would like to be paid Age Pension from 13 August 2020, the date you attended Nundah Service Centre, and was issued a paper claim for Age Pension. You stated you were told you are eligible from 13 August 2020 and not to lodge your claim until you had all the required information.
I acknowledge your statement and I apologise if a Services Australia representative has incorrectly given you advice. I am sorry this happened to you. It is unfortunate when we make an error and it may seem unfair, but this does not mean that a back payment can now be paid. There is no discretion under the law to backdate a claim for this reason.
You may be able to claim compensation from Services Australia under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA scheme), if Services Australia has made a mistake that caused you financial loss or injury.
Payments under the CDDA scheme are discretionary. This means there is no automatic entitlement to a payment, even if Services Australia has made a mistake.
Before making a claim, you should exhaust your review options, including requesting a review by the Administrative Appeals Tribunal.
For more information about the CDDA scheme, please go to
humanservices.gov.au/compensation
The Applicant applied to the SSCSD[21] for further review of the ARO decision. On 12 May 2021 the SSCSD affirmed the decision.[22]
[21] Exhibit 1, T-Documents, T11, pages 102-103, Request for review of decision by the SSCSD.
[22] Exhibit 1, T-Documents, T2, pages 3-6, Decision of the SSCSD.
By way of an application dated 4 June 2021, the Applicant sought a second-tier review of that decision from this Tribunal.[23] The Applicant provided that the reason he was seeking a review was:[24]
On 13 August 2020 I was issued a paper claim for Age Pension but all of the required documents were not included, with no returning date explaining I would be eligible from 13 August 2020. Some other documents were asked after this date. Consequently I submitted them gradually. You acknowledged and apologised that you made an error. It is not fair that you can not back date me. The reason for this wrong decision is you breached code of conduct of APS by providing false and misleading information.
[23] Exhibit 1, T-Documents, T1, pages 1-2, Application for review.
[24] Exhibit 1, T-Documents, T1, page 2, Application for review.
On 18 March 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
ISSUES
The issue before the Tribunal is whether the Applicant can be granted Age Pension from a date earlier than 12 October 2020.
THE LAW
The relevant law in determining the date on which a person’s social security payment starts is found in the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (the Determination).
Section 11(1) of the Administration Act provides that a person who wants to be granted a social security payment must make a claim for the payment in accordance with Division 1 of Part 3 of the Administration Act. In relation to the Applicant a claim for Age Pension can be made by lodging a written claim or by making a claim in a manner approved by the Respondent.[25]
[25] Sections 16(1) and (7) of the Administration Act.
Section 41 of the Administration Act provides that unless the social security law provides otherwise a payment becomes payable to a person on their start day in relation to the social security payment. The general rule is that a person’s start day is the day on which the claim is made if the person was qualified for the payment on that day.[26]
[26] Section 42 and Clause 3 of Schedule 2 of the Administration Act. Noting that the other provisions of Schedule 2 of the Administration Act do not apply in the Applicant’s case.
Section 13 of the Administration Act provides circumstances where a claim is deemed to have been made when a person contacted the Respondent about a claim for a social security payment. Section 13 of the Administration Act provides:
13 Deemed claim—person contacting Department about a claim for a social security payment
(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.
Section 5 of the Determination provides:
For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) and 14(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the 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:
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.
Note: A person may be considered to be physically present in a remote area during temporary absences (see subsection 14(2) of the Social Security Act 1991 (Cth).
CONSIDERATION
At Hearing the Applicant told the Tribunal that he was seeking to have his Age Pension paid from 13 August 2020 and that he did not agree that he made his claim for Age Pension on
12 October 2020. The Applicant told the Tribunal that he had gradually provided the required information to the Respondent from the end of August 2020.
At Hearing the Applicant made it clear that the main issue he had with his Age Pension not being paid from 13 August 2020 is due to the advice he says he received from the Centrelink officer on that day. The Applicant said he was issued a letter and forms that did not indicate a return date and when he queried that, he was told that he would be eligible for the Age Pension from that day regardless of when he returned the forms.
The Applicant told the Tribunal he works as an interpreter and is often involved in providing services in connection with Centrelink matters, so he was aware that usually a 14 day requirement is put in place to return documents being sought by Centrelink. He said that is why he challenged the advice he was given. The Applicant told the Tribunal that the Centrelink officer gave him misleading information and had breached the APS Code of Conduct. He also said they had insulted him and wasted his time.
The Applicant also told the Tribunal that he disputed that he made his claim for Age Pension on 12 October 2020 because, although he may have submitted forms that day but they were still not all of the forms, he was asked for further information after that time too. The Applicant indicated he was frustrated with not have been given a full list of what was required from him on 13 August 2020.
When taken through his points of contact with Centrelink that are recorded on his customer file (and noted in the Background provided above) the Applicant said he did not believe the records to be true as he believed that he had attended the Centrelink service office and had telephoned on more occasions than what was listed. He was however unable to identify any such instances that he said were missing from the records before the Tribunal.
On cross-examination, the Applicant accepted that the instances where he contacted the Respondent between 13 August 2020 and 12 October 2020 seeking further information about his Age Pension claim indicated that he was working on the forms at those times and that it was unlikely that he would have actually already have submitted the forms. The Applicant said he could not remember the exact details of his contacts with Centrelink to confirm whether the information reflected in the records were correct. The Applicant gave evidence that he could not remember when or what it was that he says he submitted prior to the occasion recorded on 12 October 2020, however he knows he gave information prior to that date.
Having considered all of the evidence before it as a whole, the Tribunal finds that the Applicant did not make his claim for Age Pension until 12 October 2020. There is no corroborating evidence to indicate that the Applicant submitted a claim form or any forms for that matter, prior to that date. While it is clear that he contacted Centrelink on many occasions between 13 August 2020 and 12 October 2020 and gave further information about his relationship status and was provided with further forms, he had not actually lodged a written claim for Age Pension with the Respondent.
The Applicant’s evidence in relation to the completion of the required forms was unclear other than he consistently told the Tribunal that if he had of not been told that he could get the forms in whenever he could and had instead been told he needed to return them as soon as possible, he would have done so. The crux of the Applicant’s case is that the delay between 13 August 2020 and any date that it is taken that he made a claim for Age Pension was due to the advice he received from the Centrelink officer and not due to his inaction.
There is no question of the Applicant’s eligibility to Age Pension before the Tribunal. Further for the reasons previously outlined, the Tribunal finds that the Applicant made his claim for Age Pension on 12 October 2020.
As such, unless the Applicant can establish that he met the requirements of section 13 of the Administration Act, such that his claim can be deemed to have been made on
13 August 2020, the general rule applies. Meaning that the start day of his Age Pension is 12 October 2020, being the day on which he made the claim.
For the purposes of section 13 of the Administration Act, the Tribunal notes that the Respondent does not dispute that the Applicant:
·
contacted the Respondent in relation to his claim for Age Pension on
13 August 2020;[27]
[27] Exhibit 3, Respondent’s Statement of Facts & Contentions, page 6, paragraph 32.
·was eligible to receive the Age Pension on 13 August 2020;[28]
[28] Exhibit 3, Respondent’s Statement of Facts & Contentions, page 6, paragraph 33.
·made his claim for Age Pension on 12 October 2020;[29]
[29] Exhibit 3, Respondent’s Statement of Facts & Contentions, page 3, paragraph 27.
·
did make his claim for Age Pension within 13 weeks of the contact made on
13 August 2020;[30] and
·
did not make his claim for Age Pension within 14 days of the contact made on
13 August 2020.[31]
[30] Exhibit 3, Respondent’s Statement of Facts & Contentions, page 6, paragraph 34.
[31] Exhibit 3, Respondent’s Statement of Facts & Contentions, page 6, paragraph 40.a.
Consequently, in order for the Applicant’s contact with the Respondent on 13 August 2020 to be deemed to have been a claim for Age Pension he must be able to establish that at any stage between 13 August 2020 and when he made his claim on 12 October 2020, that he was included in a class of persons set out in section 5 of the Determination[32] and that he made his claim within 14 days of that contact or that one of the identified circumstances had a significant adverse effect on his ability to lodge his claim earlier.[33]
[32] Sections 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Administration Act.
[33] Sections 13(1)(d), (2)(e), (3)(e) and (3A)(e) of the Administration Act.
The Respondent contended that the Applicant cannot rely on section 13 of the Administration Act as:[34]
·the evidence does not support him being in a class of person who was unable to lodge a claim on the contact day due to his circumstances;
·the consistent evidence of the Applicant has been that the reason he did not lodge on 13 August 2020 or shortly thereafter, was because of poor advice he received from a Centrelink Service Officer, and not because he was unable to do so due to the stress associated with ending his long term relationship;
·the Applicant’s evidence to the SSCSD was that if he was given the correct advice, he could have lodged the claim within days of 13 August 2020;
·the Applicant did not make his claim within 14 days of 13 August 2020;
·there is no evidence before the Tribunal that the Applicant was suffering from a medical condition between 13 August 2020 and 12 October 2020, or that he was caring for or was the partner of another person who was suffering from a medical condition which had a significant adverse effect on his ability to lodge the claim earlier; and
·there is no evidence before the Tribunal that establish that the Applicant’s circumstances were special and that as a result it was not reasonably practicable for him to lodge his claim for Age Pension at an earlier time.
[34] Exhibit 3, Respondent’s Statement of Facts & Contentions, pages 6-9, paragraphs 31-42.
The Applicant’s main contention was that any delay in submitting his claim for Age Pension after 13 August 2020 was due to the incorrect advice he received from the Centrelink officer that there was no timeframe attached to when he returned the forms he had been given. The Applicant told the Tribunal that had he have been aware that he needed to return the forms as soon as possible he would have done so. He would have simply completed what he could and returned them and then provided further information when he received it.
At Hearing when taken through the class of persons defined in section 5 of the Determination, the Applicant told the Tribunal that he did not fit into any of the listed classes of persons. Further when asked whether his ability to submit his claim for Age Pension was in any way effected by his ill health or that of someone else or special circumstances, he said it was not. The Applicant told the Tribunal that he was working during the period between 13 August 2020 and 12 October 2020.
Consequently, based on the evidence of the Applicant at Hearing, the contentions of the Respondent and in the absence of any evidence to the contrary, the Tribunal finds that on 13 August 2020 when the Applicant first contacted the Respondent in relation to Age Pension, he did not belong to a class of persons set out in section 5 of the Determination. As such the Tribunal finds that the requirements set out in sections 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Administration Act were not met.
Further, based on the evidence of the Applicant at Hearing, the contentions of the Respondent and in the absence of any evidence to the contrary, the Tribunal finds that between 13 August 2020 when the Applicant first contacted the Respondent in relation to Age Pension and when he made his claim for Age Pension he did not have a medical condition, was not caring for someone with a medical condition, nor did special circumstances arise that significantly affected his ability to lodge his claim earlier. As such, the Tribunal finds that the requirement set out in sections 13(2)(e), (3)(e) and (3A)(e) of the Administration Act were not met.
Having found that the Applicant made his claim for Age Pension on 12 October 2020, the Tribunal considers that the evidence clearly shows that the Applicant did not make his claim for Age Pension within 14 days of his contact with the Respondent on 13 August 2020. As such, the Tribunal finds that the requirement set out in section 13(1)(d) of the Administration Act were not met.
Based on the evidence before it, the Tribunal finds that section 13 of the Administration Act does not apply to the Applicant’s claim for Age Pension.
In the Applicant’s circumstances where section 13 of the Administration Act does not apply to deem his contact with the Respondent on 13 August 2020 to have constituted a claim for Age Pension, the start day for his Age Pension is the day on which he made his claim.
While the Tribunal understands that the Applicant believes he was incorrectly advised on 13 August 2020 that his Age Pension would start from that date without also being told about the associated timeframes within which he would need to complete and return the required forms to make an claim, there is no discretion within the Administration Act that allows the Tribunal to find that his Age Pension start day was earlier than the day on which he made his claim.
Based on the evidence before it, and as the Tribunal has previously found that the Applicant made his claim for Age Pension on 12 October 2020, the Tribunal finds that the Applicant’s Age Pension start day is 12 October 2020.
The issues raised by the Applicant in relation to his concerns with the conduct of the Respondent’s officers are not matters to be considered by this Tribunal. It is open for the Applicant to seek to explore other avenues in regard to those concerns of which were discussed with him at Hearing and were also outlined in the ARO decision and highlighted by the SSCSD. Considering whether to make a complaint to Centrelink or a claim for compensation under the Scheme for Compensation for detriment caused by Defective Administration (the CDDA scheme) are matters for the Applicant.
DECISION
For the reasons set out above, the Tribunal finds that the Applicant made a claim for Age Pension on 12 October 2020 and does not meet any of the requirements that would allow him to be paid Age Pension from a date earlier than that day.
As such, the decision under review is affirmed.
| I certify that the preceding 50 |
.................SGD...................................
Associate
Dated: 28 March 2022
Date of hearing: 18 March 2022 Applicant: By telephone Solicitor for the Respondent: Mr Samuel Harvey
Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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