Griffiths and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3016

Griffiths and Secretary, Department of Social Services (Social services second review) [2021] AATA 3016 (20 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8082

Re:Eileen Joyce Griffiths  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  Senior Member J Rau SC and Member M Kennedy (Presiding)

Date:20 August 2021

Place:Adelaide

The decision under review is affirmed.

……………[Sgnd]………………

Member M Kennedy

CATCHWORDS

SOCIAL SECURITY – aged pension – members of a couple – whether joint claim was made – effective date of claim – Applicant did not complete declaration – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth)

CASES

Aljbour and Secretary, Department of Social Services [2020] AATA 762

SECONDARY MATERIALS

Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018

REASONS FOR DECISION

Senior Member J Rau SC

Member M Kennedy (Presiding)

20 August 2021

1. Mr and Mrs Griffiths attended a Centrelink office together on 31 July 2019 intending to each claim Age Pension. Centrelink’s position is that Mr Griffiths, the Applicant’s husband, lodged an online claim for Age Pension that day, which was granted with effect from 31 July 2019 on 11 November 2019. 

2. In relation to Mrs Griffiths, however, Centrelink’s position is that she did not lodge her own claim that day, and did not do so until 11 November 2019. Centrelink granted Mrs Griffiths’ claim for Age Pension on 15 November 2019, but with effect only from 11 November 2019.

3. Mrs Griffiths is aggrieved with Centrelink’s decision to only pay Age Pension from 11 November 2019. She considers she lodged her claim on 31 July 2019 jointly with her husband, or should be taken to have done so, and should be paid from that date.

4. Mrs Griffiths requested review of Centrelink’s decision, and on 14 September 2020, a Centrelink Authorised Review Officer affirmed Centrelink’s decision to pay Age Pension only from 11 November 2019. Mrs Griffiths then applied for review to this Tribunal.

5. On 24 November 2020, the Tribunal at its first tier (“AAT1”) decided that Centrelink’s decision was correct, and the legislation did not allow the Tribunal to identify an earlier start date.

6. Mrs Griffiths applied to the Tribunal’s second tier (“AAT2”) for review.

7. The matter proceeded to a hearing before AAT2 on 9 April 2021. In preparing for the hearing, the Tribunal identified information on Centrelink’s public website pertaining to the online lodgement of ‘combined applications’ for Age Pension. At that hearing, the Tribunal requested Services Australia to provide further information and submissions about combined applications and other matters. The Tribunal adjourned to receive that further information and reconvened on 9 August 2021 assisted by further detailed submissions from Services Australia and Mrs Griffiths’ written response.

8. The decision under review is the decision to grant Mrs Griffiths Age Pension from 11 November 2019, and not from an earlier date.

   Legislative Framework

9. Sections 41 and 42, and Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) set out the rules for identifying a person’s ‘start day’ for a social security payment. The general rule is that the start day is the day on which the claim is made if the person is qualified on that day.  There are a number of very specific exceptions to this general rule in respect of particular social security benefits, but none are applicable here.

10. Section 11 of the Administration Act states that for a person to receive a social security payment they must make a claim. Section 16 of that Act specifies the manner by which a claim may be made. A claim may be made by lodging a written claim in accordance with a form approved by the Secretary (subsection 16(1) and (2) of the Administration Act), or in another manner approved by the Secretary.

11. The Secretary contends that the use of the online claim process amounts to a written claim.  The Secretary contends that the power to approve the form of written claims is delegated to officers at APS level 6 and above.[1] There is no express written instrument prepared solely for approving the manner of making online written claims for Age Pension, but the Secretary points to a detailed Operational Blueprint that sets out the manner of making online claims and submits that this amounts to the approval of form referred to in section 16 of the Administration Act.

    [1] Social Security (Administration) Act 1999 – Delegations instrument D2019-4 item 8

12. The Secretary contends that the lodgement of the claim and the signing of the declaration  at the conclusion of the claim is a critical step in the process to grant a payment to a person.  The Secretary has appropriately accepted that all the information required to process Mrs Griffiths’ claim for Age Pension was received in the course of Mr Griffiths providing relevant information for what Centrelink construes to be his claim. This is demonstrated by the fact that Centrelink granted Mrs Griffiths’ claim within a few days of the day that she submitted the claim and completed the applicable declaration. However, the Secretary contends that as there is no evidence that Mrs Griffiths completed the declaration prior to 11 November 2019, she cannot be taken to have submitted a claim earlier, and cannot be paid any earlier.

13. The legislation makes provision for some vulnerable claimants to be taken to have made an application on date earlier than the date the claim was lodged. Section 13 of the Administration Act provides that a claim will be taken to have been made (deemed) on the date a person first contacts Centrelink regarding the claim, if the person lodges the claim within 14 days of that contact or 13 weeks of that contact, depending on the circumstances. From 1 July 2018 however, the law has been changed so that the deemed claim will only apply if a person is included in a class of persons determined in an instrument. The applicable instrument is the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018.  Mrs Griffiths does not rely on these provisions. Her claim was lodged outside the period of 13 weeks of the day she and Mr Griffiths first went to the Centrelink office, and Mrs Griffiths has not contended that she falls within the classes of vulnerable persons.

14. The rules concerning the start dates of social security payments are otherwise not discretionary. 

15. This case turns, therefore, on whether the claim lodged by Mr Griffiths on 31 July 2019 can be construed at law to also be a claim lodged by Mrs Griffiths, or a combined claim of Mr Griffiths and Mrs Griffiths. 

16. We have concluded that as a matter of law this is not possible, and so Centrelink’s decision is correct.

    Consideration

17. Mrs Griffiths and Mr Griffiths gave evidence to the Tribunal about the process they went through to lodge the claims for Age Pension. It is apparent that Mr Griffiths attended to most aspects of the administrative tasks required. 

18. We accept that Mr and Mrs Griffiths went to Centrelink together to commence the process on 31 July 2019, and we accept that they had conveyed to a Centrelink officer that they had wished to each lodge a claim for Age Pension. Neither Mr Griffiths nor Mrs Griffiths had much experience in dealing with Centrelink at this time.

19. We accept that after taking copies of some documents, Mr Griffiths was asked to complete the claim online at home, which he promptly did. In doing so, Mr Griffiths provided Centrelink with information about Mrs Griffiths’ financial circumstances. During the hearing, Mr and Mrs Griffiths both told us that throughout the following weeks and months, they genuinely  thought they were pursuing claims for Age Pension in respect of each of them, and had not appreciated until November 2019 that Centrelink was only considering a claim in relation to Mr Griffiths. At this point, the online process was completed in respect of Mrs Griffiths.

20. It is useful to elaborate briefly on Centrelink’s systems and processes for the making of combined online applications. As mentioned above, prior to the hearing we had noted from publicly available sources that such a process existed and required further explanation as to whether it had been made available to Mr and Mrs Griffiths, and if not why not.

21. As explained by the Secretary’s helpful submissions, Services Australia has developed and implemented capacity for partnered Age Pension applicants to make an online combined claim with their partner. The online process does, however, appear to be heavily ‘locked down’. Services Australia’s Operational Blueprint explains that there are a series of criteria to be met before the opportunity to make a combined claim will be offered. Of relevance, the Operational Blueprint provides that among the 14 criteria is a criterion that a person’s partner ‘is already linked in the system’. As we understand it, if all the operational criteria are not satisfied, the option of selecting and pursuing a combined application is simply not offered in the online claim process. It is not the case that partnered claimants will necessarily be required to elect whether to make a combined application or individual applications if the system does not expressly offer the option of a combined application. In this way it is a materially different situation to an individual selecting an individual claim form over a combined claim form where all options are offered.

22. Timing is important. On 9 October 2019, Mr Griffiths was sent a letter by Centrelink which observed he was not linked on its systems to his partner (Supplementary T-Documents (“ST”), S14). Mr Griffiths was asked to complete the Partner details (MOD P) form. Presumably this feature of the records had been identified by Centrelink’s processing of Mr Griffiths’ application for Age Pension that referred to Mrs Griffiths and had provided information about her financial circumstances. Assuming that the response to this request resulted in Mr and Mrs Griffiths thereafter being ‘linked’ on Centrelink’s system, we observe that the opportunity to have been offered a combined application had already long passed.

23. It is remarkable to us that, despite Mr and Mrs Griffiths jointly attending a Centrelink office and expressing their wish to jointly claim Age Pension, Mr Griffiths was sent away to make an online claim without an appropriate examination of Centrelink’s systems to ensure that the combined application option would be made available, or without it being clearly explained that Mrs Griffiths must also complete and lodge her own application.  Putting ourselves in Mr and Mrs Griffiths’ shoes, we can understand why they proceeded under the misapprehension that the process they had commenced at the Centrelink office pertained to both of them, and not only to Mr Griffiths. 

24. However, despite that observation, the documentary evidence before us clearly indicates that only one claim for Age Pension was submitted on 31 July 2019 (ST, S2) and (T-Documents (“T-Docs”), T7), and it is not possible to construe that as a combined claim in light of the content of the record of the application and the evidence concerning the strictly controlled circumstances in which such a form of claim will be offered or accessible.

25. Furthermore, the equivalent document in respect of Mrs Griffiths (T-Docs, T7, p 58) clearly records that the document was both created and submitted on 11 November 2019. 

26. We accept as necessarily correct the submission from the Secretary that an application cannot be treated as having been made unless, and until, the final declaration on the application process has been completed and lodged: see Aljbour and Secretary, Department of Social Services [2020] AATA 762. In this way, the fact that Centrelink had available all of the information it required to process and grant a claim for Mrs Griffiths through the provision of information relevant to Mr Griffiths’ claim is not to the point. Nor is our view that Mr and Mrs Griffiths genuinely and reasonably thought they had embarked upon a joint process to secure the Age Pension. The social security law clearly requires a claim to be made in every case, and we consider that a claim requires, at least, the final steps of declaration and lodgement contended for by the Secretary.

27. We find that Mrs Griffiths lodged her claim for Age Pension on 11 November 2019 in the circumstances recounted above. We accept that she was qualified for the payment on that day, and so her start day is 11 November 2019 in accordance with sections 41 and 42, and Schedule 2 to the Administration Act.

    Other matters

28. We note the applicant is aware of her option of applying directly to Centrelink for consideration under the Scheme for Compensation for Detriment caused by Defective Administration. The Tribunal has no authority to entertain claims under that scheme. 

    Decision

29. We affirm the decision under review.

    I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC and Member  M Kennedy.

    ……………[Sgnd]………………..

    Administrative Assistant Legal

    Date: 20 August 2021

Date of hearing:        9 April 2021 &

9 August 2021

Applicant:         

             Self-represented with Michael Griffiths

Representative for the Respondent:

             Julie Edwards

             Services Australia