Gogebakan and Secretary, Department of Education, Science and Training
[2006] AATA 184
•2 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 184
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1373
GENERAL ADMINISTRATIVE DIVISION ) Re
FILIZ GOGEBAKAN
Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Ms N. Isenberg, Member Date2 March 2006
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for calculation and payment of arrears of youth allowance from 6 June 2005.
[SGD] Ms N. Isenberg
Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – when the application for social security payments was made – credit of witnesses – contemporaneous records kept by Applicant’s mother – Centrelink document lodgment process – misplaced documents – record not always made of lodged documents - decision set aside and remitted to Respondent for calculation and payment of arrears of youth allowance from 6 June 2005.
Social Security (Administration) Act 1999 sections 11, 13, 16, 41, 42 and Schedule 2
REASONS FOR DECISION
2 March 2006 Ms N. Isenberg, Member DECISION UNDER REVIEW
1. This is an application by Miss Filiz Gogebakan (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 5 October 2005 regarding the payment of her youth allowance. The SSAT affirmed the decision of an Authorised Review Officer (“ARO”) dated 13 September 2005 who decided that the Applicant’s youth allowance should be paid from 12 August 2005 and not from an earlier date.
ISSUE BEFORE THE TRIBUNAL
2. The issue before the Tribunal is:
·Whether the Applicant’s youth allowance should be paid from 12 August 2005 or from an earlier date.
LEGISLATION
3. Section 11 of the Social Security (Administration) Act 1999 (“the Act”) provides that as a general rule, a person who wants to be granted a social security payment must lodge a claim. This application concerns the date on which the claim for Miss Gogebakan’s youth allowance was made.
4. To be granted youth allowance a claim must be made in accordance with Part 3, Division 1 of the Act. The only way to “make” a claim is by “lodging” a written claim (per section 16(1) and (2) of the Act). “Lodging” a written claim is done by an approved form being “delivered” to a person and place approved by the Secretary for the purpose (section 16(4) of the Act).
5. Sections 41 and 42 of the Act provide that a social security payment becomes payable to a person on the person’s start date in relation to the social security payment and this is determined in accordance with Schedule 2 of the Act.
6. Schedule 2 of the Act relevantly provides:
“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.”
7. While a number of backdating provisions are found in Divisions 2 and 3 of Part 3 in Schedule 2 of the Act, none of the categories mentioned have any application to the Applicant’s case.
8. However in circumstances where there is an early claim, Schedule 2 of the Act provides:
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.
9. Section 13 of the Act also relevantly provides that if a person contacts the Department in relation to a claim for a social security payment, the Secretary gives a written notice acknowledging the contact with the Department, and the person lodges the claim within 14 days after the contact, then the person is deemed to have made the claim on the day the Department was first contacted.
THE HEARING
10. A hearing was held on 23 January 2006. The Applicant was represented by her mother, Mrs Aysel Gogebakan. The Secretary, Department of Education, Science and Training (“the Respondent”) was represented by Mr James Larcombe, an advocate from the Centrelink Service Recovery Team.
11. I had before me the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), which I took into evidence. Mrs Gogebakan also produced her 2003, 2004 and 2005 calendars. Both Mrs Gogebakan and the Applicant gave evidence.
BACKGROUND
12. There is no dispute in relation to the following facts:
·On 6 April 2005, the Centrelink Family Assistance Office sent a letter to Mrs Gogebakan because her daughter, Miss Gogebakan, was turning 16 on 6 June 2005 (T7/12).
·On 6 May 2005 Mrs Gogebakan lodged a completed “Review of Family Tax Benefit for a child turning 16”. The Family Assistance Office wrote to Mrs Gogebakan advising “We cannot pay you Family Tax Benefit for Filiz because she has claimed or intends to claim a Commonwealth payment in her own right” (T9/14).
·On 12 August 2005, Mrs Gogebakan contacted Centrelink regarding youth allowance for Miss Gogebakan. Mrs Gogebakan advised a claim for youth allowance had been lodged prior to her daughter’s 16th birthday.
·On 16 August 2005, Mrs Gogebakan lodged a youth allowance claim for Miss Gogebakan (T13/21) and also asked for a review, requesting that the youth allowance be backdated (T12/20).
·Miss Gogebakan was sent a letter dated 17 August 2005, stating that youth allowance would be paid from 12 August 2005 (T14/25). That decision was affirmed on 13 September 2005 by an ARO and on review by the SSAT on 5 October 2005.
CONSIDERATION OF THE EVIDENCE
13. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
14. Simply stated, Miss Gogebakan argues that her application for youth allowance was lodged on 10 May 2005 whereas Centrelink submits that no application was made until 16 August 2005.
15. If I prefer Miss Gogebakan’s position, then the start date for payment of her youth allowance is 6 June 2005, her 16th birthday, in accordance with Schedule 2 of the Act.
16. If I prefer Centrelink’s position, then the correct date for commencement of payment is 12 August 2005, being the date Mrs Gogebakan enquired about that application, in accordance with section 13(1) of the Act.
17. The decision turns on whether I accept that an application for youth allowance was made on 10 May 2005.
18. Miss Gogebakan, still aged 16 and a HSC student, gave evidence in a mature and articulate fashion. She told me that sometime in second term last year, before her 16th birthday, her mother showed her a youth allowance form which she, her mother, had completed. Miss Gogebakan read the form and signed it where required. Miss Gogebakan’s mother already had her passport and birth certificate as supporting documents and she supplied her keycard bank account and her school identification card. She assumed the money was then paid into her mother’s account. As items were required for her schooling her mother would pay for them.
19. Some time later, in August 2005, Miss Gogebakan’s mother asked her to sign one of the forms again “because Centrelink had lost the earlier form”, and again she did so and supplied her identification documents.
20. On each occasion Miss Gogebakan’s mother told her that the documents were lodged at Centrelink.
21. Mrs Gogebakan, who I found to be a credible witness, gave evidence to the same effect. She said that she had taken the first application to Centrelink at Fairfield on 10 May 2005. She said she saw a young woman who took the application. The young woman photocopied the supporting documents and returned the originals to Mrs Gogebakan. The young woman tore off a portion of the application form which is a receipt, and gave this to Mrs Gogebakan. This cannot now be located. Mrs Gogebakan said she was told the documents were to be forwarded to the Ingleburn office for processing. While Mrs Gogebakan remembered that there was a computer on the desk, she could not recall if the clerk had used the computer during her attendance.
22. In support of her contention, Mrs Gogebakan pointed to her calendar on which this attendance is noted. She noted that the SSAT was skeptical about her calendar. She demonstrated that she in fact has 2 calendars, one as a back up if she changes handbags. One version is far more complete than the other and there is a counterpart of that version for 2003 and 2004. Each calendar contained multiple entries and in different pens, but all apparently written by Mrs Gogebakan. I accept that the more detailed calendar is a contemporaneous note made by Mrs Gogebakan.
23. Centrelink has no record of the lodgment of the first application.
24. Mr Larcombe also took me to the investigation by the ARO (T18/33) that purports to set out the lodgment process:
1.“The claim is taken at a reception point.
2.The claim is checked to see if it is complete and has all necessary documents.
3.The receipt of the claim, and the documents provided with the claim (such as proof of identification and any modules), is recorded on the person’s computer record.
4.If additional documentation is required, a request for that documentation is given to the person while they are still at the reception point. Any request for information made is also recorded on the person’s computer record. This is done at a reception point to ensure that other officer’s (sic) do not request the same information.
…”
25. From that information I was invited to conclude that the lodgment of a document necessarily involves a computer entry. No mention is made in the statement of the process of the tear off receipt, which it was conceded, forms part of the lodgment document. I am not confident that the statement of procedure by the ARO is correct. A document could, in my view, be ‘lodged’ without computer entry.
26. I also note that the ARO made the following concession (at T18/33):
“While I acknowledge that there will be times that Centrelink misplaces a claim, or some other documentation that a person has provided, and there is potential in the steps outlined above for a paper claim to be misplaced, there is usually a record of some sort that a document such as a claim has been received…”
27. This clearly acknowledges that Centrelink can and does lose documents and that there is (only) “usually” a record that a claim has been received.
28. Further, there was discussion at the hearing in relation to the document lodged on 6 May 2005 titled “Review of Family Tax Benefit for a child turning 16” and the computer file version of the information provided by Mrs Gogebakan in the original document. When I enquired as to the whereabouts of the original document (as only a copy of a blank document was provided to the Tribunal) Mr Larcombe had the unhappy task of informing me that that document too, was unable to be located.
29. Mr Larcombe did, however, remind me that there was at least a computer record of the document, unlike the application in question.
30. Mr Larcombe told me that each time a Centrelink customer’s computerized customer records is accessed that access is recorded and stored on Centrelink’s Security Monitor System. A report from that system for the period between 1 May 2005 and 30 May 2005 (see T17/31) shows that there was no access to Miss Gogebakan’s computer record in that period. A similar report in respect of Mrs Gogebakan was also produced which also showed no entry in May 2005 later than 6 May.
31. In my view, this is evidence only that the computer system in respect of Miss Gogebakan and Mrs Gogebakan was not accessed during the relevant period. That, in my view, is just a restatement of Centrelink’s position, i.e. that it does not have a contemporaneous record of computer registration of the lodgment. It is not inconsistent, in my view, that a document could be ‘lodged’ but misplaced, before entry in the computer.
32. Having regard to the positive view I formed as to the credibility of Miss Gogebakan and Mrs Gogebakan and the contemporaneous notes made on the calendar, I accept that an application for youth allowance was lodged on 10 May 2005. I am not dissuaded from this view by the evidence in relation to Centrelink’s lodgment practices, which was clearly incomplete, nor by the evidence that usually, but not always, some record is made of document lodgments.
DECISION
33. The decision under review is set aside and the matter is remitted to the Respondent for calculation and payment of arrears of youth allowance from 6 June 2005.
I certify that the preceding 33 paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:
Signed: A. Garcia
..................................................................................……………………………….Associate
Date of Hearing 23 January 2006
Date of Decision 2 March 2006
Representative of the Applicant Mrs A. Gogebakan
Representative of the Respondent Mr J. Larcombe
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