GRETA ROSENLUND and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2012] AATA 611

[2012] AATA 611 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1123
Re	GRETA ROSENLUND
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT

DECISION

Tribunal	Mr RG Kenny, Senior Member
Date	12 September 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Ms Lee Cross, District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Parenting Payment – No lodgement of formal claim – Decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth) ss 28A, 29

Administrative Appeals Tribunal Act (Cth) s 40
Social Security Act 1991 (Cth) ss 23,
Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 23, 36, 63, 64, 237

REASONS FOR DECISION

Mr RG Kenny, Senior Member

12 September 2012

APPLICATION

1. The matter for determination relates to Parenting Payment which is provided for in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act1999 (Cth) (“the Administration Act”). Ms Rosenlund did not attend the hearing. She requested by e-mail message that the matter proceed in her absence. Being satisfied that Ms Rosenlund had reasonable notice of the hearing, I am satisfied that it was appropriate to proceed with the matter in her absence.[1]

   [1] See s 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

   BACKGROUND

2. Ms Rosenlund contacted Centrelink on 23 April 2008 by telephone and discussed the receipt of Parenting Payment with a Centrelink officer. Centrelink then sent a letter to Ms Rosenlund at her last known address. The letter included various Centrelink forms and, in part, read:

   We confirm that you made a claim for Parenting Payment – Partnered on 23 April 2008. This notice is made under Social Security Law. Information You Need To Know About Your Claim For Parenting Payment. You are required to attend a finalisation interview before 7 May 2008 at the Caboolture Centrelink Customer Service Centre at 21 Hasking Street, Caboolture Qld 4510. … The forms and verification documents mentioned below must be provided when you attend the office. Failure to attend the interview by 7 May 2008, or failure to return the requested documents, may result in the rejection of your claim for Parenting Payment – Partnered.

   It is common ground that Ms Rosenlund neither attended the Centrelink office nor provided documentation as requested in that letter. In that situation, Centrelink decided, on 21 May 2008, to reject Ms Rosenlund’s claim for Parenting Payment on the basis that material requested from her had not been received. This determination was sent to Ms Rosenlund at the same address as before. It provided advice of what Ms Rosenlund could do if she disagreed with the rejection decision, including the following:

   It is important to ask for the decision to be reviewed as soon as possible. This is because if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to the decision, or any back payment, might only be able to take effect from the date you ask.

3. On 8 June 2011, Ms Rosenlund contacted Centrelink by telephone and requested review of the determination of 21 May 2008. Ms Rosenlund followed this up with a letter on 20 June 2001, requesting review of the determination and indicating that she was seeking Parenting Payment for the 2008/09 and 2009/10 financial years. On 26 July 2011, Centrelink reconsidered and affirmed its determination of 21 May 2008. That determination was affirmed by an authorised review officer on 5 October 2011 and then by the Social Security Appeals Tribunal on 12 March 2012. Ms Rosenlund now seeks review of that decision by the Tribunal.

   SUBMISSIONS

4. In letters written to the Tribunal, Ms Rosenlund set out her reasons for disagreeing with Centrelink’s determinations. She submitted that she had not received the letter of 23 April 2008 or the letter of 21 May 2008. She wrote that she had not been advised in the phone conversation on 23 April 2008 that Parenting Payment was dealt with in legislation separate from that relating to the family tax benefit; that she had to provide documentation to Centrelink within a specified time-frame; that she was to attend an interview; or that a written claim for Parenting Payment had to be made. She understood from the phone conversation that Parenting Payment would be paid to her from 23 April 2008. She had been in receipt of family tax benefit and believed that her Parenting Payment was being paid to her as part of that family tax benefit. Ms Rosenlund said that, in a telephone conversation with Centrelink on 8 June 2011, she was advised that Parenting Payment had not been paid to her and that a rejection letter had been sent to her on 21 May 2008. At that time, she also learned that Parenting Payment was not paid as part of the family tax benefit.

5. Ms Michelle Brazier, for the respondent, submitted that the letter sent to Ms Rosenlund on 23 April 2008 was a notice under s 63 of the Administration Act with which Ms Rosenlund was obliged to comply. She submitted that the letter of 21 May 2008 was a rejection of her claim under s 36 of the Administration Act. She noted Ms Rosenlund’s statement that she had not received the notice or the decision but submitted that this was not a relevant consideration because of s 23(12) of the Act. She submitted that the s 63 notice of 23 April 2008 and the decision of 21 May 2008 had been properly addressed to Ms Rosenlund and sent by post so that, under ss 28A and 29 of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) and s 237 of the Administration Act, respectively, she was deemed to have received each of the documents in the ordinary course of post even if she did not actually receive it. Accordingly, Ms Brazier submitted, the decision to reject Ms Rosenlund’s claim on 21 May 2008 had been correctly made under s 64 of the Administration Act because of Ms Rosenlund’s failure to comply with the terms of the s 63 notice.

6. Ms Brazier submitted that the letter of 21 May 2008 advised that, if Ms Rosenlund disagreed with the decision, she should seek review and do so within 13 weeks. Ms Brazier noted that no contact was made with Centrelink by Ms Rosenlund until 8 June 2011 and submitted that, as this was more than 13 weeks after the letter, the earliest date from which any favourable determination could be made was that date of contact. This meant that arrears of Parenting Payment were not payable to Ms Rosenlund for the 2008/09 or 2009/10 financial years as claimed by her.

   CONSIDERATION

7. Ms Rosenlund’s assertion that she did not actually receive the letters of 23 April 2008 and 21 May 2008 was not challenged. I accept that she did not receive those letters. In evidence was a history of the addresses of Ms Rosenlund, as advised to Centrelink from 21 August 1999 to 7 September 2011. Her address from 11 April 2007 to 23 February 2009 is identified. In evidence was a copy of the Centrelink letters of 23 April 2008 and 21 May 2008. These are each addressed to Ms Rosenlund at that address.

8. In the event that Ms Rosenlund made a claim for Parenting Payment, I would accept Ms Brazier’s submission that the letter of 23 April 2008 would be a notice under s 63 of the Administration Act and that it would be deemed to have been received by her in the ordinary course of post under ss 28A and 29 of the Interpretation Act. I would also accept her submission that the letter of 21 May 2008 would be a decision under s 36 of the Administration Act and that it would be deemed to have been received by her in the ordinary course of post under s 237 of the Administration Act and ss 28A and 29 of the Interpretation Act. Those deeming provisions relating to service, in so far as relevant, read:

   28A Service of documents

   (1)  For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

   (a)  on a natural person:

   (i)  by delivering it to the person personally; or

   (ii)  by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

   (b)  on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.

   (2)  Nothing in subsection (1):

   (a)  affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

   (b)  affects the power of a court to authorize service of a document otherwise than as provided in that subsection.

   29 Meaning of service by post

   (1)  Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

   (2) This section does not affect the operation of section 160 of the Evidence Act 1995.

   237 Notice of decisions

   (1) If notice of a decision under the social security law is:

   (a) delivered to a person personally; or

   (b) left at the address of the place of residence or business of the person last known to the Secretary; or

   (c) sent by prepaid post to the postal address of the person last known to the Secretary;

   notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

   (2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.

   (3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.

   (4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).

9. Under s 23(12) of the Act, those deeming provisions apply regardless of whether Ms Rosenlund actually received the documents. In that situation, Ms Rosenlund would have been in breach of her obligation to provide relevant documentation to Centrelink and that would be sufficient to justify the decision of 21 May 2008. Ms Rosenlund’s deemed receipt of that decision meant that she was on notice of the need, expressed therein, to seek review of that decision within 13 weeks or else lose the benefit of back‑dating of any consequential favourable decision. Clearly, no review was sought within that time-frame and, accordingly, if a favourable decision had been made, there would have been no backdating to include Parenting Payment in the 2008/09 and 2009/10 financial years as she had requested.

10. The submissions made by Ms Brazier would dispose of this matter if Ms Rosenlund had made a claim for Parenting Payment. However, a real question arises as to whether Ms Rosenlund actually made a claim for Parenting Payment.

11. Chapter 2 of the Act makes provision for Parenting Payment[2] which, thereby, is a form of “social security payment” as defined in the Act[3].The general rule for a person who wants to be granted a social security payment is that a claim for the payment must be made.[4] A claim is to be made in writing and in the approved form.[5] While the Centrelink letters to Ms Rosenlund on 23 April 2008 and 21 May 2008 conceded that a claim for Parenting Payment had been made by her, I am satisfied that no such form was lodged by Ms Rosenlund on 23 April 2008 or, as I understand it, at any time. In those circumstances, I am satisfied that Ms Rosenlund did not make a claim for Parenting Payment.

    [2] See Part 2.10 of the Act.

    [3] See the definition of “social security payment” [paragraph (e)] in s 23(1) of the Act which extends the definition to payments in Chapter 2 of the Act.

    [4] See s 11 of the Administration Act.

    [5] See 16 of the Administration Act.

12. Provision is made for a deemed claim in certain circumstances under s 13 of the Administration Act. These arise where a person has contacted Centrelink in relation to a claim for a social security payment, is qualified at that time for that payment and Centrelink acknowledges in writing that the person has so contacted Centrelink. In those circumstances, the person is deemed to have made a claim on the day of contact if the person lodges a written claim within a nominated time-frame of, in some situations 14 days, in other situations, 13 weeks. None of those situations have application to Ms Rosenlund whose contact with Centrelink was more than 3 years after the initial contact on 23 April 2008

13. I have concerns about the effectiveness of the letter of 23 April 2008 as a notice under s 63 of the Administration Act. It was Ms Rosenlund’s non-compliance with the obligations in that letter which was relied on by Centrelink to make its decision under s 64 of the Administration Act. Those provisions, in so far as relevant, read:

    63 Requirement to attend Department etc.

    Secretary may require person to attend Department etc.

    (1)  Subsection (2) applies to a person if:

    (a)  the person is receiving, or has made a claim for, a social security payment; or

    (b)  the person is the holder of, or has made a claim for, a concession card; or

    (c)  the Department is contacted by or on behalf of the person in relation to a claim for:

    (i)  if the person is not undertaking full‑time study and is not a new apprentice—youth allowance; or

    (ii)  in any case—newstart allowance;

    to be paid to the person.

    (2)  If the Secretary is of the opinion that a person to whom this subsection applies should:

    (a)  attend an office of the Department; or

    (b)  contact the Department; or

    (c)  attend a particular place for a particular purpose; or

    (d)  give information to the Secretary;

    the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).

    …

    (5) The Secretary may notify a person under subsection (2) or (4):

    (a)  by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary; or

    (b)  in any other way the Secretary considers appropriate.

    …

    64 Effect of failing to comply with requirement to attend Department etc.

    Person receiving, or claiming, social security payment

    (1)  If:

    (a)  a person is receiving, or has made a claim for, a social security payment; and

    (b)  the Secretary notifies the person under subsection 63(2) or (4); and

    (c)  the requirement in the notice is reasonable; and

    (d)  the person does not comply with the requirement; and

    (e)  except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and

    (f)  the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

    the payment that the person is receiving or has claimed is not payable.

    …

14. Centrelink declared that the letter of 23 April 2008 was written in relation to Ms Rosenlund’s “claim” for Parenting Payment. The circumstances to which s 63 of the Administration Act apply to a person are listed in s 63(1) thereof. It applies if:

    (a)  the person is receiving, or has made a claim for, a social security payment; or

    (b)  the person is the holder of, or has made a claim for, a concession card; or

    (c)  the Department is contacted by or on behalf of the person in relation to a claim for:

    (i)  if the person is not undertaking full‑time study and is not a new apprentice—youth allowance; or

    (ii)  in any case—newstart allowance;

    to be paid to the person.

15. It is not in dispute that Ms Rosenlund was not in receipt of Parenting Payment and I have determined that no claim was lodged by her. Therefore, s 63(1)(a) of the Administration Act does not apply to her. It is not disputed that Ms Rosenlund’s circumstances do not fall within s 63(1)(b) of the Administration Act. In relation to s 63(1)(c) of the Administration Act, it is accepted that Ms Rosenlund contacted Centrelink in relation to the Parenting Parent but s 63(1)(c) of the Administration Act applies to such contact only in the case of youth or newstart allowance – not Parenting Payment. The letter of 23 April 2008 does not satisfy the terms of s 63 of the Administration Act and is not a notice under that provision. Accordingly, s 64 of the Administration Act does not apply to that letter.

16. Parenting Payment is a social security payment under Part 2.10 of the Act. For a person to receive Parenting Payment, a claim must be made in accordance with ss 11 and 16 of the Administration Act. No such claim was made in this matter. It is for that reason that Ms Rosenlund’s application for review must be rejected. The effect of the decision under review was that Parenting Payment was not payable to Ms Rosenlund and that decision is affirmed.

    DECISION

17. The Tribunal affirms the decision under review.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Senior Member

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Associate

Dated  12 September 2012

Date of hearing	30 August 2012
Applicant	In person
Advocate for the Respondent	Michelle Brazier