Hamad and Secretary, Department of Family and Community Services
[2003] AATA 984
•1 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 984
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/1513
GENERAL ADMINISTRATIVE DIVISION ) Re Dawlat Hamad Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Professor Tania Sourdin, Member Date1 October 2003
PlaceSydney
Decision
The decision under review is affirmed.
The Tribunal suggests that Centrelink make a payment to Mrs Hamad as compensation for Detriment caused by Defective Administration (CDDA) under the Audit Act.
[Sgd] Prof. T Sourdin
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – incorrect advice – eligibility -– Payment of Arrears
LEGISLATION
Social Security (Administration) Act 1999 section 13, Schedule 2
Acts Interpretation Act 1901
AUTHORITIES
Re Secretary, Department of Family and Community Services and Thipthorp [1999] AATA 823
Re Secretary, Department of Family and Community Services and Wilkinson [1999] AATA 163
Re Secretary, Department of Social Security and Hartmann (1998) 52 ALD 631REASONS FOR DECISION
1 October 2003 Prof T Sourdin, Member
1. This is an application by Mrs Dawlat Hamad (“the Applicant”), for review of a decision of the Secretary, Department of Family and Community Services (“the Respondent”) dated 19 March 2002, as affirmed by an Authorised Review Officer (“ARO”) on 29 April 2002 and the Social Security Appeals Tribunal (“the SSAT”) on 19 August 2002 (T2), which determined that no arrears of Parenting Payment was payable.
2. A Hearing was held before the Administrative Appeals Tribunal (“the Tribunal”) in Sydney on 1 September 2003. The Applicant and her husband Mr Ali Hamad made submissions to the Tribunal with the assistance of an Arabic interpreter. Mr John Kenny, Departmental Advocate, represented the Respondent. Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“T Documents”, T1-T25) were taken into evidence. Also taken into evidence were the following exhibits:
Exhibit No.
Description
Date
A1
Letter from Legal Aid to Centrelink
31 March 2003
A2
Statutory Declaration of Mr Hamad
26 March 2003
R1
Respondent’s Statement of Facts and Contentions
15 August 2003
R2
Contact details and electronic document
21 January 2002
R3
Letter to Applicant from Centrelink
25 June 2003
R4
Debt Calculation Data
R5
Letter to the Applicant from Centrelink
22 November 2002
ISSUES
3. The issue in this matter is:
· whether the Applicant is eligible to receive arrears of Parenting Payment to a date prior to 4 February 2002.
LEGISLATION
4. A determination in this matter requires consideration of the Social Security (Administration) Act1999 (“the Act”), which commenced on 20 March 2000, and the Acts Interpretation Act1901.
5. Section 13 of the Act deals with start dates for deemed claims and as relevant states:
“13 Deemed claim — person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
…”
BACKGROUND
6. The following information is provided by way of background:
· The Applicant arrived from Lebanon in July 1999 and was granted permanent residence in October 2000. In November/ December 2000 Mr and Mrs Hamad contacted Campsie Centrelink to inquire about eligibility for Parenting Payments. After telephone contact they attended the Campsie Centrelink office.
· It is not disputed that Mr and Mrs Hamad were probably given incorrect information in November/December 2000 during their attendance at the Centrelink office which was to the effect that the Applicant would not be eligible to claim a Parenting Payment. It appears the Applicant was informed that she would not be eligible to claim this payment for a period of two years from the date that her permanent residency visa was granted.
· On 10 July and 2 August 2001, there is a record of Mr Hamad contacting Centrelink and being advised that forms could be lodged in respect of claims for the Family Tax Benefit, the Carers Pension and the Parenting Payment claim.
· On 4 February 2002, Mr Hamad contacted Centrelink again and a claim for Parenting Payment was lodged on 18 February 2002. Parenting payment commenced shortly thereafter.
· On 11 March 2002, the Applicant lodged a letter with Centrelink requesting that arrears of Parenting Payment be paid to her from December 2000.
· On 19 March 2002 Centrelink rejected this request for arrears payment.
· An Authorised Review Officer (“ARO”) reviewed the decision on 29 April 2002.
· The ARO noted that in general, payment commences from the date a claim is lodged and the back dating provisions for Parenting Payments are not applicable in the Applicant’s case. The SSAT decision notes that the ARO added;
“Although I have agreed your parenting payment could not commence from an earlier date under the Social Security law, there may be a remedy that is available to you. When a person has suffered an economic loss, because they relied on advice provided to them by officers of Centrelink, there is a possibility of a ”compensation” payment being made. This payment, if approved, compensates the person for the money they would have received if they had not acted on the incorrect advice. I have referred your case to the team leader of the Family Assistance Office at Campsie for this issue to be considered.”
SUBMISSIONS OF MR and MRS HAMAD and the DEPARTMENT
7. Mr and Mrs Hamad said that when they visited the Campsie Centrelink office in November/December 2000 they were told that the Applicant would not be eligible for any Parenting Payment for a period of two years following the granting of her permanent residency visa. On this basis, Mr and Mrs Hamad did not complete any forms seeking Parenting Payments until early 2002. Mr and Mrs Hamad submitted that as a result they had lost the benefit of the Parenting Payment from July 2001 until 4 February 2002.
8. In respect of the period from November/December 2000 to July 2001 Mr and Mrs Hamad accepted that they were unlikely to have received any Parenting Payment as a result of Mr Hamad’s income at that time. It was accepted that Mr Hamad's income level would have placed the family income outside the scope of the Parenting Payment until July 2001. In July 2001, Mr Hamad approached Centrelink seeking advice about whether or not he could obtain the carers’ pension, so that he could care for his wife who had developed back problems. He indicated that he had completed forms in relation to the carers’ pension and that he understood that he or his wife could not claim for any Parenting Payment.
9. The Applicant recalled that she visited the Campsie Centrelink office with her husband and picked up a Parenting Payment form but was told “not to bother filling it out” as she was required to be resident for a further two years before a Parenting Payment claim could be made.
10. Mr and Mrs Hamad told the Tribunal that they first became aware that the Applicant might be eligible for Parenting Payment in January/February 2002.
11. Mr and Mrs Hamad are parents of two young children, a daughter born in April 2003 and a son born in April 2000.The Applicant arrived in Australia in 1999 and does not speak or read English. Neither Mr nor Mrs Hamad appears to have been familiar with the Parenting Payment system. This inexperience may have been partly responsible for the difficulties that they have experienced.
12. Mr and Mrs Hamad suggested that the incorrect information given to them by Centrelink staff lead to the non-lodgement of the Parenting Payment claim. Mr and Mrs Hamad were led to believe that there was no utility in lodging a Parenting Payment claim until November/December 2002, that is, some two years after the Applicant had been granted a permanent residency visa.
13. Mr Kenny submitted that it might well have been the case that Mr and Mrs Hamad were given incorrect information when they initially contacted Centrelink in November/December 2000. However, Mr Kenny indicated that in July and August 2001 Mr Hamad contacted Centrelink and inquired about a range of payments and benefits. Centrelink records indicate that telephone contact occurred on 10 July 2001. On that date the Centrelink records state that:
“Spouse Ali ph’d and I informed him that his wife is a permanent resident based on her visa and advised that the claim form can be returned by post at reception or at an appt. He will go into office to pick up two claim forms”
14. It would also appear that a further inquiry was made with Centrelink on 2 August 2001. On that date the record states that:
“ Cus stated ptr has been in Aust 2yrs 2months and does not work. Ptr has lower back problem and needs care possibly for 6 months or more. Sa336 kit sent and Sc 277 for ptr. Advised to lodge and test eligibility. Advised if not eligible for CAR may be entitled to SpB…”
15. Mr Kenny submitted that even had the Applicant lodged claim forms in November 2000, she would not have been entitled to a Parenting Payment until after 9 July 2001, since her husband’s income would have precluded her from receiving a Parenting Payment. Mr Kenny noted that Parenting Payment is subject to an income test and that prior to July 2001 Mr Hamad was earning a substantial wage.
16. Further, Mr Kenny has submitted that correct advice was given on and after 10 July 2001 and that the claim forms were not returned in a timely fashion by the Applicant. He also noted that there is no relevant provision in the legislation enabling backdating to assist the Applicant. Mr Kenny also submitted that the Applicant is not entitled to the Parenting Payment prior to the day she lodged her claim.
17. Effectively, Mr Kenny submitted that the Applicant had responsibility to pursue the information that was given to her husband in July and August 2001. In addition, Mr Kenny noted that correspondence dated 2 August 2001 was sent to the Applicant enclosing a claim for Parenting Payment that was not completed. Mr and Mrs Hamad stated that they did not receive this correspondence.
FINDINGS
18. The Tribunal has reached a decision in this matter, taking into account the documentary evidence, the submissions, the legislation and case law.
19. The Tribunal finds, at the outset, that Mr and Mrs Hamad provided credible submissions in relation to this matter.
20. Central to this matter is the contact that is alleged to have taken place between Mr Hamad and Centrelink in July and August of 2001. Whilst Mr Hamad can recall contacting Centrelink in relation to issues surrounding the Carers’ Benefits and the Family Tax Benefit, he could not recall conversations relating to the Parenting Payment. In one sense this is consistent with both Mr Hamad and the Applicant’s account. In the Applicant’s submissions both the Applicant and her husband indicated that as they did not consider that the Applicant was eligible for the Parenting Benefit, they did not seek to pursue this matter. They also indicated that they did not pursue this matter based on the incorrect advice that was given in November/December 2000. Indeed, it is difficult to accept that after becoming aware of the possibility that a Parenting Payment may be due to them, they did not pursue this matter. This would be particularly unusual given that Mr and Mrs Hamad were in a difficult financial situation in July/August 2001.
21. It may well be that Mr and Mrs Hamad did not understand the nature of advice that they were given, or that they rejected the advice in view of the positive oral advice they received in November/December 2000. It would appear that each time they contacted Centrelink in July and August 2001, issues about Parenting Payment were secondary to their prime inquiry. It may also have been that the correspondence forwarded on 2 August 2001 was not sent to the correct address of Mr and Mrs Hamad who moved premises at some stage in the second half of 2001. It would appear at this stage that the Respondent had two separate addresses for Mr and Mrs Hamad although only one address was used for the correspondence forwarded on 2 August 2001.
22. However, despite the matters raised above, the Tribunal accepts that it cannot in law, back date the claim made by the Applicant in February 2002 to July 2001 or November 2000. Section 13 of the Act specifies that the relevant dates are those upon which the claim is lodged. Therefore this Tribunal finds, as did the SSAT, that the Applicant is not qualified to Parenting Payment prior to the day on which she lodged her claim. The Tribunal also accepts that there is no discretion under the legislation that enables the Tribunal to change the decision regarding the start date for Parenting Payment.
23. The Tribunal finds that the determination of the SSAT of 19 August 2002 is correct. Pursuant to section 43 of the Administrative Appeals Tribunal Act1975 the Tribunal affirms the decision under review.
24. However, the Tribunal considers that Centrelink should make a payment to the Applicant as compensation for detriment caused by defective administration under the Audit Act. Whilst the Tribunal acknowledges that Mr Hamad contacted Centrelink in July and August 2001 and was told something relating to benefits, in the Tribunal’s view, the oral contact that had been previously made with the Centrelink office had persuaded Mr and Mrs Hamad that they should not lodge a claim in respect of Parenting Payment. The Tribunal also notes that Centrelink has reviewed this matter and has decided not to pay compensation for defective administration. The Tribunal does not have the authority to direct a payment under the Audit Act, however, in the Tribunal’s view the contact that appears to have occurred in July and August 2001 is not inconsistent with the matters raised by Mr and Mrs Hamad. It would appear that Mr and Mrs Hamad, who were in a difficult financial situation at that time, continued to rely upon the information that had been given at the Campsie Centrelink office in November 2000. The Tribunal considers that Centrelink may wish to take into account the special circumstances of the Applicant who does not speak or read English and who also had medical problems during the relevant period.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Prof T Sourdin, Member.
Signed A. Krilis
Associate
Date of Hearing 1 September 2003
Date of Decision 1 October 2003
Representative for the Applicant Self-Represented
Representative for the Respondent Ms Kenny, Departmental Advocate
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