Hunt and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1069

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1069

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/418

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATHRYN HUNT

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 27 October 2006

PlaceBrisbane

Decision

The decision under review is affirmed. This means Mrs Hunt’s application for review is unsuccessful.

The Tribunal raises the application of the Commonwealth Policy:  “The Scheme for Compensation for Detriment Caused by Defective Administration” in the factual circumstances of Mrs Hunt’s application for review.

.......[Sgd].......

EK Christie

Member

CATCHWORDS

SOCIAL SECURITY – parenting payment – date payable - special circumstances – medical condition and lodging of claim - Scheme for Compensation for Detriment Caused by Defective Administration – decision set aside

Social Security (Administration) Act 1999 ss13(2)(c) and s13(2)(e) (ii); ss13(3A)(c)
and13(3A)(e) (ii)

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Haider v Secretary, Department of Social Security (1998) 157 ALR 359

Riddell v Secretary, Department of Social Security (1993) 42 FCR 443

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Dranichnikov v Centrelink [2003] FCFCA 133

Re Dean and Secretary, Department of Education, Employment and Youths Affairs [2005] AATA 586

Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531

WRITTEN REASONS FOR ORAL DECISION

12 December 2006 Dr EK Christie, Member   

1.      This is an application by Kathryn Hunt for a review of the following decision of the Social Security Appeals Tribunal (the “SSAT”) made on 23 May 2006 that Mrs Hunt was entitled to parenting payment from 27 January 2006.

2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.

3.      The applicant represented herself at the hearing. The respondent was represented by Mr C Keim, a Departmental Advocate.

Issues Before The Tribunal

4.      The only issue for the Tribunal to decide was whether Mrs Hunt was entitled to parenting payment at an earlier date than 27 January 2006, given that her daughter was born on 23 November 2005. 

5.      At the commencement of the hearing the parties agreed that the determination of this issue was dependent on the following requirements prescribed by the Social Security (Administration ) Act 1999  (“the Act”) being fulfilled:

(a)whether a written notice had been given by the respondent to Mrs Hunt acknowledging that she had contacted the respondent in relation to her claim for parenting payment;

(b)whether “circumstances related to a medical condition” had a significant adverse effect on Mrs Hunt’s ability to lodge her claim for parenting payment earlier; and

(c)whether, because of “special circumstances”, it was not reasonable for Mrs Hunt to lodge her claim for parenting payment earlier. 

Facts

6.      On the basis of the evidence before it, the SSAT made the following Findings of Fact [T2, Folio 6]:

“(i)Mrs Hunt is the mother of Macy born 23 November 2005.

(ii)Macy was delivered by caesarean section and both Mrs Hunt and Macy had subsequent health complications including recurring mastitis and feeding problems.

(iii)Mrs Hunt lodged a claim for family tax benefit on 5 December 2005.

(iv)Mrs Hunt contacted Centrelink on 27 January 2006 about claiming parenting payment.

(v)Mrs Hunt was sent a letter by Centrelink on 27 January 2006 which letter noted her contact in respect of a claim for parenting payment on that date.

(vi)Mrs Hunt lodged a claim for parenting payment on 8 February 2006.”

7.      At the commencing of the hearing, Mrs Hunt gave the following responses to  the Findings of Fact made by the SSAT:

·   that she agreed with findings (i), (ii), (iii), (v), and (vi); but

·   that she disagreed with finding (iv) as she had discussed her parenting      payment claim with a Medicare officer on 5 December 2005.

Oral Evidence: Issue 1 – Date Contact had Been Made in Relation to the Making of a Parenting Payment Claim by Mrs Hunt

8.      Mrs Hunt’s evidence was based on a written statement that she had provided to the Tribunal and addressed at the hearing.  Her evidence can be summarised as follows:

(a)Initial contact and intent to claim parenting payment was made at the Medicare office, Ashmore City on 5 December 2005, 12 days after the birth of her child.  At this time, forms for Maternity Payment and Family Tax Benefit were completed;

(b)At the same time, Mrs Hunt enquired about Parenting Payment having read about financial assistance from one of the books on display at the Medicare office.  She was told by the Medicare officer that she would get Mrs Hunt a form to complete – but the officer came back and told Mrs Hunt that they had no forms;

(c)However, the Medicare Officer told her that there was no urgency as “all family assistance payments are back dated to the birth of the child.  Parenting Payment is a Family Assistance Office payment.  Parenting Payment is like Maternity Payment and Family Tax Benefit.  They can all be backdated to the child’s birth date.  Come back again, you have plenty of time”;

(d)Mrs Hunt left the Medicare office, reliant on this information and with no sense of urgency in lodging her claim for parenting payment.  She had not been told of the four week deadline – or of any administrative process to follow;

(e)Mrs Hunt relied on the following information provided to her by the Medicare officer:  that (a) she qualified for Parenting Payment; (b) payment would be backdated; (c) there was no urgency to lodge her claim;

(f)Although her inquiry was made on 5 December 2005, her claim was not lodged on that day as no forms were available at the Medicare office.  A few days later her medical condition deteriorated as she had a relapse of her illness (postnatal depression) which prevented her from lodging her claim until much later.  She remained medically unfit for eight to nine weeks after the birth of her child (see the Statement of Dr J Bamford, Exhibit 2).

(g)Mrs Hunt returned to the Medicare office at Ashmore in late January 2006 and found that they still did not have any parenting payment forms.  She was then told to go to Centrelink and so went to the Nerang office of Centrelink and collected information from Nerang Centrelink’s brochure section on display;

(h)Mrs Hunt then rang the Family Assistance telephone number on 27 January 2006 about lodging a claim for parenting payment.  At this date she was told, for the first time, that there was a four week deadline and that her claim could not be backdated;

(i)Mrs Hunt then lodged her claim, in person, at Nerang Centrelink on 8 February 2006;

(j)Mrs Hunt found the following description of the Family Assistance Office, on its own website, as confusing:

“[the Family Assistance office is a place where] instead of going to different agencies to get family assistance, families are able to get all their payments at just one place, the Family Assistance Office.  Family Assistance Offices have been set up in Medicare, Centrelink and Tax Office shop fronts across the country”.

9.      In response to a Tribunal question, Mrs Hunt said that she had not been told at the Family Assistance Office on 5 December 2005, that this office did not handle parenting payment claims – or that she needed to go to a Centrelink office to claim a parenting payment. 

10.     When asked during cross-examination whether she would have lodged a parenting payment claim on 5 December 2005 if a form had been provided to her on that date, Mrs Hunt replied that she would have if the form was available as she felt well at that time.  However, two days later her condition had deteriorated.

Oral Evidence: Issue 2 – Whether Circumstances Related to a Medical Condition had a Significant, Adverse Effect on Mrs Hunt’s Ability to Lodge her Claim Earlier than 27 January 2006

11.     Mrs Hunt’s statement gave the following description of her incapacity from her caesarean section:

·     Her incapacity commenced on 23 November 2005 as she had not fully recovered;

·     By 5 December she had recovered sufficiently that she was able to walk very slowly and for small distances and attended the Medicare Office that day, driven by and supported by her husband.  Soon after this however, she rapidly deteriorated again.  The 5 December 2005 was probably one of the only good days that she could remember during the post-natal period;

·     Very soon after this date, her health deteriorated again with both she and her baby suffering from postnatal infections, mastitis, diarrhoea, round the clock feeding and sleeping difficulties.

12.     Mrs Hunt described the symptoms of her postnatal depression condition as including memory difficulties, lack of concentration, inability to complete simple tasks, sleeping difficulties, crying and problems in coping with life.  Her life at this point in time was described by her as being in a “meltdown”.

13.     In his first report, Dr J Bamford (Treating GP of Mrs Hunt) stated:

“Mrs Hunt had an emergency caesarean for foetal distress on the 23^rd of November 05 resulting in the birth of Macy.  Her postnatal course was also complicated.  In my opinion Mrs Hunt was medically unfit to be aware of her entitlements.” (T12, Folio 29, 28 January 2006).

14.In his second report, Dr Bamford stated (Exhibit 2, 26 August 2006):

“My letter dated the 2[8]/0[1]/06 stated that following her caesaren [sic] section on the 23/11/05 she had a complicated postnatal course.  In my opinion Mrs Hunt was suffering post natal depression and was medically unfit to be make decisions regarding her entitlements.  The phrasing of my first letter was to protect her privacy.”

Oral Evidence: Issue 3 – Whether, Because of Special Circumstances, it was not Practicable for Mrs Hunt to Lodge her Claim Earlier than 27 January 2006

15.     In his medical report in response to the Tribunal’s Direction, filed with the Tribunal on 17 November 2006, Dr Bamford stated:

“In your Court notes, the post natal symptoms described by Mrs Hunt, ‘memory loss, lack of concentration, inability to complete simple tasks, sleep difficulties, crying and problems in coping,’ fit the disorder known as Post Natal Depression.

My clinical notes describe Mrs Hunt as having experienced mastitis, breast feeding problems and suffering negativity and anxiety regarding deeply personal issues in the post natal period.

In my opinion, her post natal symptoms compounded by, ill-health suffered by herself and the baby plus deep emotional and psychological issues would have impaired her ability to function normally.  This would have affected her capacity to make clear and rational decisions relating to her day-to-day affairs.

Clinical notes also suggest her post natal recovery time was approximately 8-10 weeks.”

Statutory Requirements and Case Law

16.     The Tribunal has applied the following legal requirements and principles in its interpretation of the law in its consideration of the outcome for Mrs Hunt’s factual situation.

§  The Tribunal’s Decision Making Powers

17.     There is only one decision possible in this application for review: whether Mrs Hunt was entitled to parenting payment at an earlier date than 27 January 2006.  The question for the determination of the Tribunal is whether the decision under review is the correct one.

[see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]

18.     In this application for review, the Tribunal considers all the evidence and information before the Tribunal as at the date of the hearing, and supplementary medical opinion evidence provided by Dr J Bamford after the hearing, received on 17^th November 2006.  The opinion was provided in response to a Direction issued by the Tribunal at the conclusion of the hearing with the consent of both parties.

[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367].

19.     Section 13(2) of the Act provides for the deeming of an earlier claim where a medical condition has an adverse effect on a person’s ability to lodge the claim:

“13(2)  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, other than crisis payments or special employment advance; 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 payment more than 14, days but not more than 13 weeks, after the Department is contacted; and

(e)       the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier.

the person is taken to have made a claim for the social security payment on the day in which the Department was contacted.”

20.     In Mrs Hunt’s case only subsections(2)(c) and (2) (e)(ii) are in dispute.

21.     Section 13(3A) of the Act provides for the deeming of an earlier claim where “special circumstances” exist.

“13(3A)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 more than 14 days, but not more than 13 weeks, after the department is contacted; and

(e)the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.”

22.     In Mrs Hunt’s case, only subsections (3A)(c) and (3A)(e) are in dispute.

The Legal Meaning of Special Circumstances: Case Law

23.     In considering the issue of  “special circumstances” in relation to the factual situation of  Mrs Hunt, the Tribunal had given due regard to the following legal principle as to the breadth of the discretion in relation to “special circumstances”:

24.     The Full Federal Court, in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 at 450, commented:

“Each particular case must be considered on its merits.  It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”  [Emphasis added].

25.     The common law meaning and application of the expression “special circumstances” has been considered by the Federal Court and the Tribunal on many occasions. The relevant legal principles that have emerged, over time, that have been applied to provide a meaning for “special circumstances” can be summarised as follows:-

(a)“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional…This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special”: See Re Beadle and Director-General of Social Security (1984) 6 ALD 1 (at 3) [Emphasis added]

(b)“…would require something to distinguish [the case to be decided] from others, to take it out of the usual or ordinary case…It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”:  See Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 [Emphasis added]

(c)“To some extent the question whether there were special circumstances must depend on how it came about that the error occurred …:” See Dranichnikov v Centrelink [2003] FCAFC 133 [Emphasis added]

·     Special Circumstances and Health Issues

26.     The following principle emerges from a review and analysis of cases decided by the Tribunal as to the circumstances which fall within the meaning of “special circumstances” because of the impacts of the medical condition on the social security recipient: 

·the application of the law in relation to  “special circumstances” involves a consideration of the impacts of the medical condition on the Social Security recipient’s capacity to make rational decisions to manage their day to day affairs: See  Re Dean and Secretary, Department of Education, Employment and Youths Affairs [2005] AATA 586

Consideration of the Issues

27.     The Tribunal finds Mrs Hunt to be a witness of truth and to have answered all questions asked of her honestly. 

28.     The evidence before the Tribunal is that the first record of Mrs Hunt receiving a written notice acknowledging that Centrelink had been contacted in relation to the making of her claim for parenting payment was 27 January 2006. 

29.     However, the Tribunal finds that the reason for this situation to arise was because of the failure of the Medicare office at Ashmore, on 5 December 2005, to provide Mrs Hunt with the correct advice and to follow the correct administrative procedures for claims for parenting payment.  The Tribunal accepts Mrs Hunt’s oral evidence provided at the hearing (as set out in para 8 of this decision).  The Tribunal further finds that Mrs Hunt relied on this advice and because of the incorrect advice received, cannot satisfy the statutory requirement imposed by sections 13(2)(c) and 13(3A)(c) of the Act.

30.     In this regard, the Tribunal agrees with the following observations of Senior Member Handley in Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543, with respect to advice given to social security recipients by Departmental officers:

“Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel.  Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies.  Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represent government departments and agencies.  Citizens should be entitled to expect nothing less.”

And

“the responsibility for efficient and effective administration of departmental practice and policy must carry with it a responsibility for any error or mistake which is made by the departmental officers alone”.

31.     With respect to the “special circumstances” requirement of the Act [section 13(3)(A)(e)], the application of the law in cases decided by the Tribunal involves a consideration of the impacts of the medical condition on Mrs Hunt’s capacity to make rational decisions in managing her day to day affairs.

32.     The Tribunal has considered all of the evidence and information contained in the reports of Dr Bamford (para 13 and Exhibit 2 as stated in para 14) as well as his final report (as stated in para 15) and makes the following findings of fact:

·     That the Tribunal accepts Dr Bamford’s expert medical opinion that Mrs Hunt suffered post-natal depression and that her post-natal symptoms would have affected her capacity to make clear and rational decisions relating to her day-to-day affairs.

33.     Consequently, the Tribunal concludes that Mrs Hunt’s post-natal medical condition and its impacts on her capacity to make clear and rational decisions relating to her day-to-day affairs warrant the description of “special circumstances” as being either “uncommon” or “unusual” – although not necessarily “extremely unusual or uncommon”; moreover, the facts are “out of the ordinary”:  See Riddell’s case; Beadle’s case; Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531.

34.     Accordingly, the Tribunal concludes that Mrs Hunt has satisfied four of the five requirements of s 13(3A) of the Act that provide for the deeming of an earlier claim for her parenting payment. “Special circumstances” have been found to exist. Because of the incorrect advice and a failure to follow administrative procedures by the Medicare staff member in December 2005, Mrs Hunt has not satisfied s 13(3a)(c).  Therefore, Mrs Hunt would not be entitled to parenting payment when she first made contact with the Commonwealth department on 5 December 2005.  The Tribunal concludes that the factual situation has produced an outcome which was out of Mrs Hunt’s control.

35.     The statute does not give the Tribunal any discretion other than to conclude that as all five statutory requirements have not been satisfied, entitlement to parenting payment commenced from 27 January 2006.  That is, the decision under review is affirmed.  Whilst this decision may be seen as harsh, it would be more appropriate to describe it as unfortunate as the Act does not allow any other decision to be made in Mrs Hunt’s case. 

Scheme for compensation for detriment caused by defective administration

36.     At the end of the hearing, the respondent raised the possibility of whether the Commonwealth Policy:  “The Scheme for Compensation for Detriment Caused by Defective Administration” had any application.  Clearly, this is an issue for Mrs Hunt to consider whether such a claim may be warranted and might be pursued.

37.     Under the “Scheme for Compensation for Detriment Caused by Defective Administration”, each Minister, or any official authorised by the Minister for the purpose, has the administrative discretion to determine whether gratuitous compensatory payments should be made to claimants for the effects of defective administration by Commonwealth agencies.  Payments under this scheme fall outside the scope of statutory entitlements, Government approved programs and payments by the Commonwealth under legal liabilities.

38.     This scheme is therefore a method of Commonwealth agencies providing compensation to persons who have been adversely affected by the maladministration of such agencies, but who have no legal means to seek redress, such as a legal claim against the Commonwealth.

39.     Criteria under which claims under the Scheme are considered, and which may be applicable to Mrs Hunt’s factual circumstances because of the findings by the Tribunal, include:

“•   giving advice to (or for) a claimant that was, in all the circumstances, incorrect or ambiguous; or

·an unreasonable failure to give to (or for) a claimant, the proper advice that was within the official’s power and knowledge to give (or was reasonably capable of being obtained by the official to give).”

40.     In regard to the above criteria the Tribunal’s findings in paragraphs 27, 28, and 31 to 34, together with the finding that Mrs Hunt was an honest and credible witness, and the Tribunal’s decision in McAvoy’s case, are all relevant considerations with respect to a claim for compensation under the “Defective Administration Scheme”.

41.     Under the Scheme, detriment is the amount of quantifiable financial loss that a claimant can demonstrate that she has suffered despite having taken reasonable steps to minimise or contain the loss or, if this is impracticable, can reasonably be assumed to have suffered; and non-financial damage, such as pain and suffering, inconvenience or other “qualitative” elements of that nature.

42.     The Tribunal makes the further observation that it has no power, whatsoever, to give effect to this Scheme.  Rather, the Tribunal emphasises that it cannot order that the Scheme for Compensation for Detriment Caused by Defective Administration be made applicable to Mrs Hunt’s factual circumstances.  The procedure is for Mrs Hunt to make a claim to the respondent and to request that her claim be assessed under the specified eligibility criteria.  The final authority to give effect to the Scheme does not rest with the Tribunal, but the Minister or their appointee.

Decision

43.     The decision under review is affirmed

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Michelle Brazier
  Legal Research Officer

Date/s of Hearing  27 October 2006
Date of Decision  27 October 2006
Date of Written Reasons          12 December 2006
The Applicant was self represented         
For the Respondent                  Mr C Keim, Departmental Advocate