Halime and the Secretary, Department of Employment and Workplace Relations
[2007] AATA 1345
•22 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1345
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1332
GENERAL ADMINISTRATIVE DIVISION ) Re EMILE HALIME Applicant
And
THE SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member, Dr M Thorpe, Member Date22 May 2007
PlaceSydney
Decision The Tribunal sets aside the decision under review.
The tribunal substitutes a decision that:
1. The operation of sections 12 and 15 of the Social Security (Administration) Act 1999 (Administration Act) permit Mr Halime’s entitlement to the disability support pension to be backdated before the date of commencement of the Act on March 2000.
2. Mr Halime is entitled to payment of the disability support payment from 28 May 1999 under section 12 of the Administration Act, provided he meets the further requirements of the Act that otherwise qualify him for the disability support pension.
3. In respect to section 15 of the Administration Act 1991, Mr Halime is entitled to payment of the disability support payment from the earliest date on which he made an initial claim, provided he meets the further requirements of the Act that otherwise qualify him for the disability support pension.
4. The Tribunal remits the matter for the Respondent to determine the earliest date on which Mr Halime made an initial claim for the purpose of section 15 of the Administration Act
........................[sgd]......................
Ms Robin Hunt
Presiding Member
Administrative Appeals Tribunal
DECISION (CORRIGENDUM) [2007] AATA 1345
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1332
GENERAL ADMINISTRATIVE DIVISION ) Re EMILE HALIME Applicant
And
THE SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION (CORRIGENDUM)
Tribunal Ms R Hunt, Senior Member, Dr M Thorpe, Member Date29 May 2007
PlaceSydney
WHEREAS: 1. The Tribunal published its Decision in this matter, which was dated 22 May 2007.
2. The Tribunal wishes to amend the Decision so as to rectify an error in the decision. To do so with the lease costs and inconvenience to the parties, the Tribunal exercises its power under section 43AA of the Administrative Appeals Tribunal Act 1975.
3. Now the Tribunal orders that paragraph 30 of the decision should read as follows:
30. The Tribunal substitutes a decision that:
1. The operation of sections 12 and 15 of the Social Security (Administration) Act 1999 (Administration Act) permit Mr Halime’s entitlement to the disability support pension to be backdated before the date of commencement of the Act on March 2000.
2. Mr Halime is entitled to payment of the disability support payment from 28 May 1999 under section 12 of the Administration Act, provided he meets the further requirements of the Act that otherwise qualify him for the disability support pension.
3. In respect to section 15 of the Administration Act 1991, Mr Halime is entitled to payment of the disability support payment from the earliest date on which he made an initial claim, provided he meets the further requirements of the Act that otherwise qualify him for the disability support pension.
4. The Tribunal remits the matter for the Respondent to determine the earliest date on which Mr Halime made an initial claim for the purpose of section 15 of the Administration Act.
N
..............[Sgd]..........
Robin Hunt
Senior Member
Administrative Appeals Tribunal
DECISION (CORRIGENDUM) [2007] AATA 1345
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1332
GENERAL ADMINISTRATIVE DIVISION ) Re EMILE HALIME Applicant
And
THE SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION (CORRIGENDUM)
Tribunal Ms R Hunt, Senior Member; Dr M Thorpe, Member Date26 June 2007
PlaceSydney
WHEREAS: 3. The Tribunal published its Decision in this matter, which was dated 22 May 2007. The tribunal also published a corrigendum to the decision, which was dated 29 May 2007.
4. The Tribunal wishes to amend the Decision so as to rectify a further error in the decision. To do so with the least cost and inconvenience to the parties, the Tribunal exercises its power under section 43AA of the Administrative Appeals Act 1975.
NOW THE TRIBUNAL ORDERS THAT:
5. The final sentence of paragraph 11 of the original decision should read as follows: Wilcox J found “it must be correct” that the effect of section 12 can be backdated to the date of Mr Burgess’s claim for unemployment benefits, meaning the date on which he qualified for those benefits [17].
6. In paragraphs 17 and 19, all references to Justice Heerey should be references to Justice Wilcox.
…............[Sgd]................
Ms R Hunt
Presiding Member
CATCHWORDS
SOCIAL SECURITY - jurisdiction - retrospectivity – transfers between payments – backdating of entitlement – claim for the other payment taken as made on day on which person became qualified for the other payment - deemed claim--incorrect or inappropriate claims - backdating of entitlement to date of incorrect claim – date of initial claim – decision varied
Social Security (Administration) Act 1999, s 12 and 15 (1) and (4A).
Burgess v S,DFCS [2004] FCA 136
Scott v Secretary, Department of Social Security [1999] FCA 1774
Secretary, Department of Social Security v Cooper (1990) 21 ALD155
Re McAlister & S, DFCS [2005] AATA 485
Re Mulholland & S, DEWR [2006] AATA 225
REASONS FOR DECISION
22 May 2007 Ms Robin Hunt, Senior Member, Dr M Thorpe, Member
summary
7. Mr Emile Halime, the applicant, seeks review of a decision of the Social Security Appeals Tribunal (SSAT) made on 12 October 2005. The decision of the SSAT affirmed a decision of an authorised review officer (ARO) of Centrelink made on 7 July 2005. That decision rejected Mr Halime’s contention that his disability support pension should be backdated from 2002 to 1998. A preliminary issue is whether the tribunal has jurisdiction to backdate the pension to a date earlier than the date of commencement of the Social Security (Administration) Act 1999 (Administration Act). The amendments introduced by this Act took effect from 20 March 2000.
issues
8. The respondent indicated at the hearing of this matter that it would not contest Mr Halime’s entitlement backdated to the commencement of the Administration Act, that is, from 20 March 2000.
9. Therefore, the issues before the Tribunal are:
i.Whether Mr Halime met the qualification criteria for disability support pension contained in section 94 of the Social Security Act 1991 in a date earlier than 20 March 2000.
ii.Whether Mr Halime’s medical conditions at the time of his entitlement had a combined impairment rating of 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991, and, if so,
iii.Whether he had a continuing inability to work as defined in section 94(2) of the Social Security Act 1991.
10. As a preliminary question, before taking evidence from Mr Halime and examining medical opinions before the Tribunal, we were asked to rule on the appropriate date for possible backdating of Mr Halime’s entitlement. The applicant has claimed that his entitlement should be backdated to the earliest clam that he can establish and has indicated this was in 1995, 1996, 1998 or 1999. We were asked to determine:
a)Whether the retrospective right conferred on an applicant by section 12 of the Social Security Administration Act 1999 operates prior to 20 March 2000, being the date on which the Administration Act commenced. The respondent concedes that Mr Halime is entitled to the pension from 20 March 2000. Should the tribunal find no earlier possible jurisdiction before that date, the respondent says that is the end of the matter.
b)The further issue is whether the retrospective rights conferred by subsections 15(1) and (4A) operate before 20 March 2000, being the date on which the Administration Act commenced. Once again, should there be no such earlier possible commencement of retrospectivity, this will be the end of the matter.
c)Presuming the Tribunal makes a finding that backdating is appropriate, we were asked to determine the appropriate date of commencement of the applicant’s entitlement to DSP.
consideration
11. Departmental records before us show that, on 26 February 1996, Mr Halime was granted Newstart allowance. On 6 March 1999, payment of his Newstart allowance was cancelled because Mr Halime failed to lodge a review form. On 28 May 1999, Mr Halime again was granted Newstart allowance and he remained on this payment until it was cancelled on 23 October 2002. This happened because Centrelink transferred Mr Halime to payments of disability support pension.
12. Since these events, and for the purposes of the tribunal hearing, counsel for the Secretary has informed us the respondent will not contest a commencement date of 20 March 2000. The Secretary argues, however, that the backdating provisions of the Administration Act should not be applied at any earlier date.
application of s 12 – earliest date of receipt of another payment
13.
There are two main legislative provisions which enable the backdating of certain payments under the social security system. The first of these, which we have considered, is section 12 of the Social Security (Administration) Act 1999.
Sub-section 12(1) provides that, if a person is receiving an income support payment and, while receiving the payment, the person becomes qualified for another income support payment, and certain other requirements are met, the person may be taken to have made a claim for the other payment on the day on which that person became qualified for the other payment.
14. The applicant does not dispute that his Newstart allowance payments were discontinued for a few weeks in 1999 as set out in the respondent’s documents furnished to us for the review. Mr Halime did not receive Newstart allowance between 6 March 1999 and 28 May 1999. In our view, it follows that Mr Halime’s entitlement cannot be considered before the date, 28 May 1999, under section 12. This is because the section 12 (1) (b) provides that the person must become qualified for another income support payment while receiving the first income support payment. As Mr Halime was receiving no continuous income support payment so far as we are aware for a period before 28 May 1999, we hold that this is the earliest date to which his claim can be backdated under section 12.
15. The issue was raised in the case of Burgess v S,DFCS [2004] FCA 136. Justice Wilcox observed that Mr Burgess’s DSP might be backdated to April 1992, when he was first granted unemployment benefit (see Burgess at [6]). His Honour held, at [17], that the AAT had the power to do so. At [18] and [19] His Honour speculated whether Mr Burgess could be paid DSP from 1992 or for a period before 16 April 2002. This remained speculation because the tribunal had not reached a factual conclusion. Nevertheless, at [17] Justice Wilcox interpreted section 12 in such a way as to allow that it was possible for the tribunal to backdate the entitlement once the necessary facts were established. Justice Wilcox’s reasoning is a precedent binding on the tribunal. The reasoning in Burgess has been followed by the tribunal in Re McAlister & S, DFCS [2005] AATA 485 (27 May 2005) at [22] and in Re Mulholland & S, DEWR [2006] AATA 225 (7 February 2006) at [18]-[25]. In Mulholland, the issue of possible transfer to a new benefit from a date before 20 March 2000 did not arise.
16. In the present case, on the authority of Burgess, we find that Mr Halime’s DSP payments can be backdated to an earlier date than 3 March 2000. Payment can commence from the date in 1999 when he first qualified for an income support payment while receiving another. The reasoning in Burgess cannot apply to Mr Halime at any earlier date than 28 May 1999 because that is the earliest date from which he was actually continuously receiving Newstart.
17. While we agree with the respondent’s submission that a legislative provision should not be assumed to operate retrospectively unless the intention is clear, and are bound by the authority for this proposition expressed in Maxwell v Murphy (1957) 96 CLR 261 and Fisher v Hepburn Limited (1960) 105 CLR 188 at 194, these cases were not concerned with interpretation of the Administration Act. The High Court has not ruled on whether the intention in the Administration Act is clear. On the other hand, we have direct binding authority that section 12 does have retrospective operation in Burgess. Implicit in this judgment is a perception that the retrospective intention is clear. Heerey J found it “must be correct” that the effect of section 12 can be backdated to the date of the initial claim
18. We further note that social security legislation is beneficial legislation. Such legislation generally is read so as to favour the recipient of the benefit where there is doubt about the meaning of a provision. In support of a generous construction, we note that the Explanatory Memorandum (EM) that introduced section 12 gave as one of its aims that the Administration Act “more effectively meets its objectives of … customer service”. Further objectives described were consistency across payment types and facilitating movement between payment types. The amendments also aimed to “providing enhanced flexibility in how claims may be made”. Again, the EM said the amendments were generic and gave as an example “commencement provisions being events based rather then payment type based …”. We take all these expressions as supportive of the intention of the legislators to ease rather than restrict entitlements.
19. Consequently, we find that as Mr Halime was receiving continuous income support payment from 28 May 1999, his claim can be backdated under section 12 to that date. He will, of course, have to satisfy the Secretary that he meets other requirements as well. These include proof that Mr Halime’s medical conditions at the time of his entitlement had a combined impairment rating of 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991, and whether he had a continuing inability to work as defined in section 94(2).
application of s 15 – earliest initial claim
20. A further argument for backdating is based on the terms of section 15 of the Administration Act. Unlike the section 12 provisions, section 15 is not based on transfers between payments but is based on allowing deemed claims to be backdated where an inappropriate or incorrect claim was made and the person subsequently makes a claim for a social security payment for which he or she is qualified. Under sub-section 15(1), the person is taken to have made a claim for the other social security payment on the day on which he or she made the incorrect claim. Further, sub-section 15(4A) provides that, if a person makes a claim for an income support payment, called the “initial claim”, and, on the day on which the initial claim was made, the person would have qualified for another income support payment and subsequently makes a claim for that other payment, the person may be taken to have made the later claim on the day on which the initial claim was made.
21. The question of when an initial claim was made in Mr Halime’s case is a matter of some debate. At one stage, the applicant said the initial claim occurred in 1998. Then new evidence arose in the Department’s records, supplied for the review, showing Mr Halime was granted newstart on 26 February 1996, giving rise to a possible initial claim date on that day. Failing adequate proof that claims were made in 1996 or 1998, there remained the possible date of Mr Halime’s claim that preceded the resumption of his payments on 28 May 1999. This must have been after 6 March 1999, when the Department’s records show his payment was cancelled for failure to lodge a review form, but on or before 28 May 1999. This is because the same records shows that Mr Halime’s payments of newstart allowance resumed from 28 May 1999.
22. Unlike section 12, section 15(4A) does not require that the person claiming a particular social security payment must have been receiving another social security payment at the time of the deemed application. Therefore, in our view, Mr Halime is not prevented from claiming his benefit from an earlier date provided he can establish he made an initial claim at a particular date. That there may have been a break in the payment of Mr Halime’s newstart allowance or sickness allowance is not relevant so long as the break was not for a reason that meant Mr Halime no longer qualified.
23. Justice Wilcox did not consider the possible application of section 15 to the facts in the Burgess case. However, no reason occurs to us why the same logic should not apply to the provisions of section 15 as to section 12. That is, once a date of entitlement to the initial payment has been established, it similarly “must be correct” that the effect of section 15 can be backdated to the date of the initial claim. As Heerey J says, in respect to the enactment of s12 [at 17], otherwise there would have been no point in enacting such a provision. In support of this proposition, in respect to section 12, Justice Heerey recites the Explanatory Memorandum (EM) released with the introduction of the amending bill. The EM simply explains “the person will be taken to have made a claim for the other payment on the day that the person becomes qualified for the other payment.”
24. Similarly, there is no restriction stated in section 15 or in the Explanatory Memorandum, which prevents backdating beyond the introduction of the amendments in 2000. The EM introducing both ss 12 and 15 makes a very straightforward statement about the desired effect of both sections. The explanation or the new section 15 is framed in the same simple way as that about the new section 12. The explanation reads, in part:
Sometimes, a person will make a claim for an incorrect social security payment. The person then makes a claim for another social security payment (the other payment) for which the person is qualified.
This clause provides that if this occurs, the person is taken to have made a claim for the other payment on the day the person made the incorrect claim.
25. The reasoning of Heerey J in respect to section 12 is just as valid support for a construction of section 15 to enable backdating to the date of the initial claim.
26. We further agree with the argument put to us by counsel for Mr Halime that we have the ability to consider a review application as an initial claim. This also is based on the authority of a judgment of Justice Heerey. His honour on 16 December 1999 in the matter of Scott v Secretary, Department of Social Security [1999] FCA 1774, at [16], said
“a document whose manifest purpose is to satisfy the Department that the recipient continues to satisfy those qualifications can be characterised as a ‘claim’ … without doing too much violence to the language”.
27. In making this finding, Justice Heery found support in the decision of a full court of the Federal Court in Secretary, Department of Social Security v Cooper (1990) 21 ALD155. In Cooper, the court held a special benefit review form submitted to the Department was a “claim” for the purposes of s 100(2).
28.
As Justice Heery explained, the full court in Scott held that a completed review form for review of a particular type of allowance was “a claim for the payment of a pension, allowance, benefit or other payment under the … Act”. This was within the meaning of former section 159(5)(a) of the 1947 Act, a provision which was relevantly indistinguishable from section 100(2)(a) of the 1991 Act. Similarly, although the Secretary has argued that section 15 is not a re-enactment of
section 100, we consider that it is virtually indistinguishable from the former section 100 in the respect that is being argued before us.
29. Former section 100(2)(b) reads that “on the day on which the person makes the initial claim, the person qualified … and subsequently makes a claim for a disability support pension and … the person’s provisional commencement day is the day on which the person made the initial claim”. Section 15(4A) similarly uses the term “initial claim” and allows the subsequent claim to become the commencement day, that is, the day on which the person made the initial claim. While a review form may not be the initial claim in a chain of claims and reviews, it may be the initial claim for the purposes of the sequence of events contemplated in section 15. We are bound by the judgment of Justice Heerey in construing the provisions in this manner. It follows that, if Mr Halime can establish a date on which he made a claim of some sort, such as the lodgement of a completed review form, the date of making this “claim” would amount to the “initial claim” for the purposes of section 15(4A).
30.
While we note that subsection 15(4A) is not a
re-enactment of section 100 (2), the court having overruled Senior Member Handley on this point in the Scott case cited above, the two provisions are extremely similar. They both have the effect of enabling an initial application day to be the effective day from which a claimant, having made an incorrect claim, may receive the benefit of a deemed application. We further note that the EM to the bill which came into operation on 20 March 2000, explained the changes were introduced to simplify the law. Further, it was meant to consolidate existing provisions rather than change them. The EM stated:
The Social Security (Administration) Bill 1999 forms a part of the measures being undertaken by the Government to give effect to the Government’s commitment to implement a simpler and more coherent social security system that more effectively meets its objectives of adequacy, equity, incentives of self provision, customer service and administrative and financial sustainability.
The Social Security (Administration) Bill 1999 consolidates all the machinery and most of the administrative provisions relating to social security. In doing so, it effects a major reduction in the length and complexity of the social security laws …
31. The Second Reading speech also included reference to simplification:
… but just as 1991 recognised the need to make Social Security Legislation more comprehensible and adaptable, subsequent experience with the Social Security Act indicates that these aims could be better achieved by consolidating the Technical Rules Provisions of the Act.
A technical rule simplification project is being conducted in my department, in conjunction with Centrelink, with the aim of simplifying the Technical Rules Provisions.
The objectives of the project have been to implement simpler policies for the Social Security Act….
32. It is apparent from these explanations that the intention of Parliament was to make matters easier for social security applicants who had made a mistake in their entitlement and filled out an incorrect form. On balance, this leads us to the conclusion that Mr Halime is entitled to the backdating of the DSP to the time of his initial claim for the purposes of subsection 15 (4A), provided he also meets other necessary criteria. One of these criteria involves the requirement that he satisfy section 15(4A)(b) and show that he was qualified for this payment at the date when he made the initial claim.
33. The time of Mr Halime’s earliest claim is difficult to establish as Centrelink does not always keep its records over a lengthy period of time and Mr Halime has not kept his own records. It has been difficult for Centrelink to locate records going back as far as 1998, let alone 1996 or 1995, which is when Mr Halime suggested he was already receiving newstart allowance. The respondent has a record that Mr Halime was granted newstart allowance on 26 February 1996. This consists of a brief one line entry in the section 37 documents together with an email exchange between departmental officers. The same email exchange states that, “(A)s you can see, Mr Halime did not lodge any claims in 1998”.
34. On the basis of the records before us, Mr Halime made an initial claim on or before 26 February 1996. Provided that Mr Halime can establish that he otherwise qualified for the disability support pension on or before 26 February 1996, he is entitled to receive the pension from the day on which he made the claim that founded his entitlement as at 26 February 1996. If he should fail to establish the date of the initial claim on which his payments from 26 February 1996 were based, he is entitled to receive the disability support pension from the next earliest date on which he establishes that he made an initial application.
decision
35. The decision under review is set aside.
36. The tribunal substitutes a decision that:
· The operation of sections 12 and 15 of the Administration Act permit Mr Halime’s entitlement to the disability support pension to be backdated before the date of commencement of the Act on March 2000.
· Mr Halime is entitled to payment of the disability support payment from 28 May 1999 under section 12 of the Administration Act, provided he meets further requirements of the Act that otherwise qualify him for the disability support pension.
· In respect of section 15 of the Social Security (Administration) Act 1991, Mr Halime is entitled to payment of the disability support payment from the earliest date on which he made an initial claim, provided he meets further requirements of the Act that otherwise qualify him for the disability support pension.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: [Talaishia Collis]
AssociateDate/s of Hearing 26 April 2007
Date of Decision 22 May 2007
Counsel for the Applicant Mr Craig ColborneSolicitor for the Applicant Legal Aid Commission of New South Wales
Counsel for the Respondent Ms Kate Eastman
Solicitor for the Respondent Australian Government Solicitor
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