GXRH and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 466

GXRH and Secretary, Department of Social Services (Social security second review) [2025] ARTA 466 (26 March 2025)

Applicant/s:  GXRH

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/1021

Tribunal:Senior Member J Walsh (second review)

Place:Brisbane

Date:26 March 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that GXRH’s jobseeker payments are to be paid from 5 January 2023.

....................[SGND]....................................................

Senior Member J Walsh

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 – start day for jobseeker payment – medical evidence of incapacity for work prior to claim considered – determination of early start day – application of 7-day ordinary waiting period considered.

Legislation:

Social Security Act 1991, ss 19C(2), 620, 620(1)(a)
Social Security (Administration) Act 1999, s 13(2) and cl 11(1), Sch 2
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024,

cl 24, Sch 16

Secondary Materials:

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

Statement of Reasons

1. It might be expected that the rules governing the commencement of social security payments after a claim has been granted would be relatively simple. This matter shows that is not necessarily the case. GXRH claimed jobseeker payment on 10 January 2023. Her claim was granted and payment of benefits started from 17 January 2023 because she had to serve a 7-day ordinary waiting period. She said she had started an online claim on 10 December 2022 but was unable to complete it because of a technical problem with Centrelink’s system. She had then become unwell and provided medical evidence to support her position. She sought commencement of jobseeker payments from 10 December 2022. An authorised review officer affirmed the decision to make payments from 17 January 2023 as did the Administrative Appeals Tribunal (AAT) on first review. GXRH then applied for further review by the AAT.

2. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (ART). AAT applications for review not finalised before that date transitioned to the ART to be considered and finalised in a manner the ART considered efficient and fair: clause 24, Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024. As far as possible, such applications were to be continued under the ART legislation.

3. I conducted a hearing on 18 March 2025 by telephone. GXRH presented her own case and a representative of the Respondent Secretary also appeared. GXRH objected to supplementary material, produced by two medical centres in response to statutory notices issued by the Secretary, being taken into account. The basis of her objection was that this material contained her personal medical records and was obtained without recourse to her and without her consent. This is an understandable position; however, a decision to issue such statutory notices is not within my jurisdiction on this review and did not require GXRH’s consent in any event. I considered most of this material was generally relevant and, save for two documents (ST5, pp 249 and 261), have taken it into account.  Near the end of the hearing, GXRH was disconnected. Later that day, she sent an email asking for a resumption of the hearing that afternoon or on another day. I considered that the hearing was close to concluding and asked that GXRH be sent an email allowing her until close of business on 18 March 2025 to put in writing by email any additional information or comment she wished to have considered. Nothing further was received in response that day.

4. As to the substance of her case, GXRH explained she had expected that her payments would automatically resume on her return to Australia on 15 November 2022; she said she had left the country in August 2022 and had been receiving benefits up to that point. I note the documentary evidence contradicts her position; the benefit history screen shows her payment was cancelled from 4 September 2020 and no further payments were made before her new claim in January 2023: see T17 p 128. In any event, as I explained to GXRH at hearing, in the absence of review decisions relating to the 2020 cancellation decision and any claim for resumption of payment after cancellation, I have jurisdiction only to consider her claim made on 10 January 2023 and when payments on that claim should commence.

5. GXRH’s main contention is quite straightforward. She contends the evidence she has provided establishes she was incapacitated for work from 12 December 2022 and payments should commence from this date. She contends the ordinary waiting period of seven days which generally applies should be waived in her case. The Secretary’s position is that it is accepted GXRH was incapacitated for work from 30 December 2022 and that, taking account of the ordinary waiting period, payments ought commence from 6 January 2023. My view of the matter is to accept that GXRH was incapacitated for work from 29 December 2022 and, taking account of the ordinary waiting period, payments should start from 5 January 2023. I explain my reasoning below.

6. I first considered the evidence given by GXRH that she commenced an online claim on 10 December 2022 but was unable to complete and lodge this claim because of a Centrelink system error. I note her application for review includes a statement that the 10 December 2022 online application was subsequently deleted which caused further delay: see T1, p 10. This was consistent with her evidence at hearing and as recorded by the AAT in its reasons for decision: T2, p 15, para 15.

7. GXRH’s online claim was successfully submitted on 10 January 2023. The available records for this claim include the following:

   Claim Submission Date: 10.01.2023  

   Claim Creation Date: 10.12.2022

   On its face, these entries indicate the claim submitted on 10 January 2023 was commenced on 10 December 2022. This is inconsistent with GXRH’s evidence of having to commence a new claim after 10 December 2022. It follows I have reservations about her evidence on this point.

8. Ultimately, I do not need to make specific findings on this issue. Even if I was prepared to accept her evidence about her inability to complete and submit an online claim on 10 December 2022, the provisions of section 13 of the Social Security (Administration) Act1999 (Administration Act) relating to deemed claims in certain circumstances are not satisfied in GXRH’s case. Relevantly, for her claim to be taken to have been made on 10 December 2022, the Department had to have been contacted on that day: paragraph 13(2)(a) of the Administration Act. In the absence of evidence her claim was submitted on 10 December 2022, I do not accept there was the necessary contact on that day. Further, even if this obstacle was overcome and I accepted GXRH was a vulnerable person within the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018, I would still need to be satisfied that paragraph 13(e) of the Administration Act was satisfied. This would require me to accept that, throughout the period 10 December 2022 to 10 January 2023, GXRH was suffering from a medical condition and that this condition, or circumstances related to it, had a significant adverse impact on her ability to lodge her claim before 10 January 2023.

9. GXRH’s evidence at hearing was that the only reason her claim on 10 December 2022 could not be submitted was due to the Centrelink system problem. There is no medical evidence she was unable to submit a claim because of a medical condition on that day. In those circumstances, I am not satisfied that the requirements of paragraph 13(e) are met. It follows GXRH’s attempted claim on 10 December 2022, if accepted, cannot be taken to have been made on that day.

10. The only other legislative provision which can assist GXRH’s case concerns the rules relating to the start day for payment on a claim for a social security payment. The general rule is that if a person is qualified on the day they make a claim their start day is the day of the claim: clause 3(1) of Schedule 2 to the Administration Act. However, there is scope to backdate a person’s start day in particular circumstances. Clause 11 of Schedule 2 provides:

    11   Incapacitated claimant

    (1)  If:

    (a)  a person becomes incapacitated for work as a result of a medical condition; and

    (b)  the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and

    (c)  the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

    the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

11. GXRH’s substantive position is that she has provided medical evidence indicating she was unable to work from 12 December 2022 and her payments should begin from this day. She particularly relies on a medical report from [Dr One] dated 29 April 2024 which states she was “unwell and unfit to work” from 12 December 2022 to 30 January 2023. The report also details: GXRH was seen on 12 December 2022 for allergies, neck pain and noise disturbances affecting her health; she was admitted to hospital on 30 December 2022 for cellulitis and stayed in hospital until 3 January 2023; and she was seen again at the practice on 9 January 2023 for her cellulitis and subsequent follow-up. GXRH’s contention is that there is no proper basis for non-acceptance of this report.

12. At hearing, GXRH accepted [Dr One] did not see her on 12 December 2022. I consider the best evidence as to her medical circumstances on that day is to be found in the clinical notes of her consultation with [Dr Two] on that day: ST5, p 237. Relevantly, the clinical notes record “neck pain ongoing but getting somewhat better…still affected by hearing noise at home, played a recording with some knocking/banging noises, interfering with sleep and concentartion [sic], requested a letter to state the same.” [Dr Two] then provided a medical certificate dated 12 December 2022 concerning the “knocking/banging noises” at GXRH’s place of residence. The certificate concludes that GXRH reports “her sleep is disturbed due to this and affect her concentration during the day.”

13. I prefer the contemporaneous evidence of GXRH’s consultation with [Dr Two] on 12 December 2022 to [Dr One’s] subsequent opinion. There is no reference to allergies in [Dr Two’s] clinical notes or the medical certificate GXRH provided on 12 December 2022. There is no opinion provided, either in the clinical notes or medical certificate that day, that GXRH was unable to work on that day as a result of a medical condition. In my view, the evidence falls short of establishing that GXRH was incapacitated for work on 12 December 2022.

14. The evidence established that GXRH was admitted to hospital on 30 December 2022 in relation to suspected cellulitis. She was discharged in early January 2023. There are various medical certificates in evidence stating treatment for her cellulitis was ongoing and she was unfit for work through to 30 January 2023. I note a medical certificate from [Dr Two] dated 16 January 2023 states GXRH had cellulitis of her arm on 29 December 2022 which required hospital admission and that treatment for this condition was ongoing. In the circumstances, I am prepared to accept that GXRH became incapacitated for work due to cellulitis in her arm on 29 December 2022. Her claim for jobseeker payment on 10 January 2023 was lodged within five weeks and I accept that the available evidence establishes that she continued to be incapacitated for work from 29 December 2022 to 10 January 2023. Accordingly, I find the requirements of clause 11 of Schedule 2 to the Administration Act are satisfied so that GXRH’s start day is 29 December 2022.

15. Generally, most applicants for jobseeker payment are subject to a 7-day ordinary waiting period before payments of benefits begin: see section 620 of the Social Security Act 1991 (Act). GXRH contends this should be waived in her case. She referred to her expectation, based on previous experience with Centrelink, that her payments would automatically resume on her return to Australia on 15 November 2022. She said she was also told, after her claim was lodged on 10 January 2023, that payments would be backdated to 10 December 2022.

16. I note there is in evidence a notice to GXRH dated 3 September 2020 informing her that payments had been stopped from 3 September 2020 and that if payment was not automatically restored once she returned to Australia, she should contact Centrelink. There was, on the face of the notice, no guarantee payments would automatically resume on her return to Australia. Indeed, after a two-year absence, it might be expected that GXRH would need to reapply and re-establish qualification for payment.

17. In any event, there are specific provisions relating to relief from the 7-day ordinary waiting period and the matters GXRH relies on do not fall within any of those exceptions. She did not receive any income support payments in the 13-week period preceding her start day of 29 December 2022: see paragraph 620(1)(a) of the Act. I note she was assessed to have in excess of $18,000 in cash and shares at the time of her claim in January 2023 and that she has not disputed this. She was therefore not in “severe financial hardship” within subsection 19C(2) of the Act because her liquid assets exceeded the relevant threshold of $668.40 at the time of her claim. There is no other provision in the social security law which would relieve GXRH from the application of the 7-day ordinary waiting period. It applies to her.

18. It follows that I find GXRH’s start day is 29 December 2022 and, taking account of the 7-day ordinary waiting period, her jobseeker payments are to commence from 5 January 2023. 

    Decision  

19. The Tribunal sets aside the decision under review and in substitution decides that GXRH’s jobseeker payments are to be paid from 5 January 2023.