Hersi and Secretary, Department of Education Science and Training
[2005] AATA 1025
•17 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1025
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/536
GENERAL ADMINISTRATIVE DIVISION
Re: MOHAMED SAID HERSI
Applicant
And: SECRETARY,
DEPARTMENT OF EDUCATIONSCIENCE AND TRAINING
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 17 October 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
SOCIAL SECURITY – youth allowance – commencement date – lodgement of claim
Social Security (Administration) Act 1999 ss 16(1), cl 3 Schedule 2
REASONS FOR DECISION
17 October 2005 Mr E. Fice, Member
1. On 8 March 2005 a Centrelink officer granted Mr Hersi youth allowance from 25 February 2005. Mr Hersi sought to have his youth allowance backdated to 13 January 2002, his 16th birthday. On 12 April 2005 an authorised review officer ("ARO") decided to vary the initial decision and backdated the start date for Mr Hersi’s youth allowance to 31 December 2004. On 31 May 2005 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the ARO. Mr Hersi seeks review of that decision.
2. Mr Hersi was represented by his mother, Mrs Miriam Mohamed. The Secretary to the Department of Education, Science and Training (“the Secretary”) was represented by Ms Katherine Navarro, a Centrelink advocate.
BACKGROUND
3. In January 2002, Mr Hersi’s mother, Mrs Mohamed, was receiving a family tax benefit for Mr Hersi, who was then 15 years old. As is the Secretary’s policy, immediately prior to Mr Hersi’s 16th birthday, Mrs Mohamed was sent a Review of Family Tax Benefit for a child turning 16 form ("review form") which required, amongst other things, Mrs Mohamed to decide whether to claim youth allowance for Mr Hersi.
4. Centrelink did not receive Mrs Mohamed's review form. Consequently, on 7 January 2002 Centrelink cancelled her family tax benefit payments.
5. Centrelink recommenced payment of family tax benefits to Mrs Mohamed in respect of Mr Hersi upon receipt of another review form on or about 9 January 2002, i.e. after Mr Hersi’s 16th birthday.
6. Mrs Mohamed continued to receive the family tax benefit until late December 2004 when, according to her, she realised she was not receiving youth allowance for Mr Hersi. Upon making inquiries, she was told that she needed to fill out a YAL NCL Form and make an application for youth allowance. She duly completed the form and returned it to Centrelink. Mr Hersi commenced receiving youth allowance payments from 25 February 2005. Mrs Mohamed sought an internal review. The ARO decided to vary the decision so that the start date for youth allowance payments would be backdated to 31 December 2004.
PARTIES’ CONTENTIONS
7. Mrs Mohamed contends that she was sent two forms by Centrelink, to be completed by her, immediately prior to Mr Hersi's 16th birthday. She claims that she returned both of them, possibly up to one month before Mr Hersi's 16th birthday. She said that one of those forms was the youth allowance claim, which Mr Hersi had signed. She did not notice that Mr Hersi was not receiving the youth allowance until some two years later because, according to her, she was very busy and hardworking and it was hard for her to understand what she was actually being paid. All of her Centrelink payments are paid into the one bank account.
8. The Secretary contends that Mrs Mohamed was sent a review form in November 2001, together with a document providing information for families with children aged 16 to 24 years. Because that form had not been received or processed by Centrelink by 7 January 2002, Mrs Mohamed's family tax benefit was cancelled on that day and she was advised of the cancellation in writing.
9. The Secretary further contends that on 9 January 2002, Mrs Mohamed lodged the review form. The review form was duly processed and Mrs Mohamed's family tax benefit was restored. She was advised of this in writing on 11 January 2002. That letter of advice clearly indicated that she was continuing to receive the family tax benefit but it does not mention the youth allowance. Furthermore, the Secretary contends that Mrs Mohamed was sent a number of family tax benefit notices between December 2002 and December 2004, all of which made it clear that she was continuing to receive a family tax benefit payment in respect of Mr Hersi.
10. It was after Mrs Mohamed was notified in December 2004 that she would no longer be entitled to the family tax benefit Part B in respect of Mr Hersi, as he had turned 18 years of age in that calendar year, that Mrs Mohamed contacted Centrelink indicating that Mr Hersi wished to claim youth allowance.
CONSIDERATIONS
11. A person seeking a social security payment must make a claim for the payment in accordance with Division 1 of Part 3 of the Social Security (Administration) Act 1999 (the Act). Section 16(1) of the Act provides that a person makes a claim for a social security payment by lodging a written claim form seeking the payment. The written claim must be in accordance with the form approved by the Secretary. The start day for the payment of social security is generally the day on which the claim is made (clause 3 Schedule 2 of the Act). However, where a person makes telephone contact with Centrelink, provided the person is, on the day on which the contact occurs, qualified for the social security payment, that person is taken to have applied on the day Centrelink was contacted, provided that the written claim is lodged within 14 days after the contact is made. The Secretary must give that person written notice acknowledging that Centrelink has been contacted in relation to the making of the claim.
12. The Secretary's evidence was that, in accordance with departmental policy, Mrs Mohamed was sent a Review of family tax benefit for a child turning 16 form and a booklet entitled Information for families with children aged 16 to 24 in November 2001. The reason for sending this information was that Mrs Mohamed's son, Mr Hersi, was about to attain the age of 16 on 13 January 2002. The booklet, in the very first sentence, states:
When your child turns 16 your family may choose to continue receiving Family Tax Benefit if eligible, or alternatively, apply for Youth Allowance, ABSTUDY or another education allowance.
The booklet also states, in bold letters, that it is important for the recipient to consider all alternatives, as that person cannot receive more than one of family tax benefit, youth allowance or ABSTUDY at any one time.
13. The review form, at item 4, asks the recipient whether their child will be eligible to claim, amongst other things, youth allowance. If the recipient ticks the "Yes" box, that person is directed to the type of payment for which the child is eligible. Under youth allowance, the form advises that, if the child has not yet claimed that allowance, a telephone number should be called to ask for the form
14. According to the Secretary, the review form was not received by Centrelink by 7 January 2002. Therefore, Centrelink cancelled Mrs Mohamed's family tax benefit and she was so advised in writing on that day. Centrelink also sent Mrs Mohamed another review form to be completed.
15. On 9 January 2002, Mrs Mohamed lodged the review form, claiming that she had already previously returned a review form. Her family tax benefit was immediately restored and she was advised in writing on 11 January 2002 that this had occurred.
16. Mrs Mohamed told quite a different story. She recalled receiving the first review form and she said that she completed it and delivered it to the Devonshire Street Sunshine office of Centrelink (the Centrelink office). She said that she lodged the form at the counter which had a sign above it indicating that youth allowance forms were accepted there. She gave no reason for going to that counter other than she had always gone to that counter. She was aware that there was a family tax benefit counter which was, apparently, on a lower level. After she received the second review form, she completed it and lodged it at the youth allowance counter at the Centrelink office. While there, she obtained a youth allowance claim form which she took home. She said that she completed the youth allowance claim form and she had Mr Hersi sign it. After it had been signed, she said that she and her husband went back to the Centrelink office and deposited the form at the youth allowance counter. Mrs Mohamed's husband confirmed that is what happened.
17. Mr Hersi said in evidence that he recalled his mother asking him to sign a form one evening and that she shouted at him the following morning for not doing so. He completed the form on that day, although he could not recall exactly when it was, other than that it was early in 2002. He said he signed the form wherever his mother told him to sign it; and he believes that he gave authority for payments to be made into Mrs Mohamed's account, as he did not have a bank account. When asked whether he had a distinct recollection of signing the form in 2002, his response was that he was "pretty sure" that he signed. Also, he thought that it was a youth allowance form that he had signed and not some other form.
18. One serious problem with Mrs Mohamed's account of events is that she told the SSAT that she was sent two forms prior to Mr Hersi's 16th birthday. She said that she returned both of those forms about one month before Mr Hersi's 16th birthday and she said that one of those forms was a youth allowance claim which Mr Hersi had signed. The difficulty is that in her oral evidence to this Tribunal Mrs Mohamed said that she attended the Centrelink office and collected the youth allowance form which she then took home for completion.
19. Ms Navarro offered, from the bar table, that Centrelink did not, as a matter of course, send out youth allowance claim forms when sending a review form to family tax benefit recipients. She said such a form would only be sent out at the specific request of a recipient. This seems to be in accordance with what is stated in clause 4 of the review form.
20. Centrelink records do not disclose receipt of a youth allowance application prior to 5 January 2005. The records disclose that a letter was sent to Mrs Mohamed on 7 January 2002 advising her that her family tax benefit had been cancelled because the review form had not been returned. The records also disclose that a completed review form was received on 9 January 2002, which caused the family tax benefit to be reinstated. The review form for Mr Hersi was processed on 11 January 2002. Mrs Mohamed was sent a letter on that date which refers specifically to the family tax benefit. She admitted that she had checked her bank account to see that payments had been restored. However, she said that, because she was extremely busy with work, and that a number of other Centrelink payments were made into the same bank account, she did not check the specific nature of the Centrelink payments. When it was put to Mrs Mohamed that she was not entitled to receive the family tax benefit and the youth allowance, she said that she did not know how the system worked and that she would take whatever was given to her. However, Mrs Mohamed said in evidence that, because she has a good command of the English language, she prepared application forms for other persons of her nationality. She had also previously made two youth allowance applications for her other children. I am therefore of the view that Mrs Mohamed was aware that she was entitled to either the family tax benefit or the youth allowance on behalf of Mr Hersi, but not both.
21. I was also told by Ms Navarro that the difference between the youth allowance and the family tax benefit would be approximately $50 per fortnight for Mr Hersi. I have some difficulty in understanding how Mrs Mohamed, who said she was the sole breadwinner of the family, would not have been aware over a period of two years that she was not receiving a sum of money to which she was entitled, if she in fact expected to receive the youth allowance on behalf of Mr Hersi. Also, Mrs Mohamed received no fewer than nine family tax benefit notices between December 2002 and December 2004, all of which made it clear that she was continuing to receive a family tax benefit payment in respect of Mr Hersi.
22. In December 2004, Centrelink notified Mrs Mohamed that she would no longer be entitled to Part B of the family tax benefit because Mr Hersi had reached 18 years of age in that calendar year. Mrs Mohamed was told that Mr Hersi may be entitled to a health care card in his own right. According to Mrs Mohamed, in the course of making enquiries regarding the health care card, she became aware that Mr Hersi had not been paid the youth allowance since attaining the age of 16 years. This caused her to contact Centrelink, which she first did on 30 December 2004. The file note regarding that inquiry states, amongst other things, that Mrs Mohamed's inquiry related to "…Eligibility for YAL for her eldest child". Mrs Mohamed telephoned Centrelink again on 31 December 2004, at 1:06 p.m., and the file note recording that conversation indicates that a youth allowance claim form was sent to her. Mrs Mohamed telephoned Centrelink customer inquiries again on 31 December 2004, at 5:13 p.m. It was in that conversation that she advised Centrelink that she had previously lodged a youth allowance application form for Mr Hersi in 2002. A youth allowance claim was lodged on 5 January 2005 by Mrs Mohamed at the Centrelink office. Mr Hersi was granted youth allowance from 25 February 2005, but following review by an ARO, the start date for Mr Hersi's youth allowance payments was revised to 31 December 2004 in accordance with s 13(1) of the Act.
CONCLUSIONS
23. Although Mrs Mohamed has a clear recollection of signing two separate forms which were returned about one month prior to Mr Hersi's 16th birthday, she admitted that she could not remember what was on the forms, except for the fact that she was convinced that one of those forms was a youth allowance claim form. However, in her evidence to the Tribunal, she said that she obtained the youth allowance claim form by attending the Sunshine office of Centrelink.
24. Although Mrs Mohamed said that she was extremely busy during the two years between 2002 and 2004, it is difficult to accept that she would not have noticed that Mr Hersi was not being paid the youth allowance. She received frequent family tax benefit notices, indicating that she continued to receive payment of that benefit in respect of Mr Hersi during those two years. She also checked her bank account to confirm that her family tax benefit payment had restarted after it had been cancelled. Yet she said that she was too busy to notice that the youth allowance was not being paid to her account.
25. Centrelink records indicate that no application was made by Mrs Mohamed for the youth allowance on behalf of Mr Hersi until Mrs Mohamed received a notice that family tax benefit payments would no longer be paid to her in respect of Mr Hersi as he had attained the age of 18 years. The first contact with a Centrelink officer appears to be an inquiry about the eligibility of Mr Hersi for youth allowance. If the file note regarding that telephone conversation is correct, and I have no reason to doubt that it is, then it seems unlikely that Mrs Mohamed had previously claimed the youth allowance on behalf of Mr Hersi. This is despite the evidence which was given by Mrs Mohamed and her husband that she had lodged the youth allowance application form in 2002. The explanation, which is supported by the evidence, appears to be that Mrs Mohamed thought that she had completed an application for youth allowance in respect of Mr Hersi in 2002, but was mistaken. Unfortunately, because the Act requires a claim for payment to be made before the claimant becomes eligible for payment, and the start date for any eligible payment is dependent upon the date on which the claim is received or is deemed to have been received if s 13 of the Act applies, Mr Hersi's youth allowance could only be paid from 31 December 2004.
26. For the reasons I have set out above, it is my view that the decision of the SSAT made 31 May 2005 must be affirmed
I certify that the twenty‑six [26] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 3 October 2005
Date of Decision: 17 October 2005
Advocate for the applicant: Mrs M. MohamedAdvocate for the respondent: Ms K. Navarro, Centrelink
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