Hunter and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1282
•2 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1282
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600145
GENERAL ADMINISTRATIVE DIVISION ) Re KELLIE JOY HUNTER Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date2 May 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes the decision that the start date of payments of Newstart Allowance to the applicant should be 24 November 2005.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefit and allowances – Newstart Allowance – date of claim – incorrect advice by Departmental officer as to lodgement requirements – not reasonably practicable to lodge claim given advice received – unfairness and hardship – special circumstances – commencement date of benefits – decision set aside
Social Security Act 1991 s 1237AAD
Social Security (Administration) Act 1999 ss 13(1), 13(3A)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Re Langenberg and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1053
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304REASONS FOR DECISION
2 May 2007 Senior Member L Hastwell 1. Kellie Hunter (the applicant) injured herself at work in November 2005 such that she was unable to earn an income for a period of time. She attended the Centrelink office on 24 November 2005 to ascertain what benefit she would be entitled to at that time. She had no employment entitlements and was effectively unemployed.
2. The applicant claims to have been told by Centrelink on that occasion that she needed a birth certificate before she could lodge a claim for benefits. A friend who accompanied her on this occasion queried that assertion, but it was confirmed by the Centrelink officer. The applicant made immediate application for an extract of her birth certificate to be sent to her and as she had to wait for it to come from interstate it took some weeks to arrive.
3. The applicant lodged her claim for benefits as soon as her birth certificate arrived.
4. The respondent (the Department) granted her claim on 16 January 2006, the date of lodgement of her claim for Newstart Allowance (NSA). The Department declined to backdate the claim to the date in November 2005 when the applicant first approached the Department. This decision was confirmed by an Authorised Review Officer. Upon her application for review to the Social Security Appeals Tribunal (the SSAT) the decision was affirmed. The applicant seeks a review of the SSAT decision to this Tribunal.
legislation
5. The relevant legislation in this case is contained in the Social Security (Administration) Act 1999 (the Administration Act).
6. Sub-clause 3(1) of Schedule 2 of the Administration Act provides for the start date for a claim and that is usually the date upon which the person lodges the claim:
“3(1) If:
(a)a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.”
7. Limited exceptions to the start date are provided for in s 13(1) of the Administration Act as follows:
“13(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.”
8. There are further provisions for back-dating in the Administration Act. One of those provisions relates to being unable to lodge for medical reasons or because a person is caring for another person. None of those provisions are relevant in this case.
9. The relevant provision for the Tribunal’s consideration in this case is s 13(3A) of the Administration Act which provides as follows:
“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.”
10. It is common ground that the applicant satisfies the first four criteria as set out in this section of the Administration Act.
issues
11. The issue to be determined in this case is whether the applicant’s case comes within s 13(3A)(e) of the Administration Act in that in the special circumstances of this case it was not practicable for the applicant to lodge her claim until the date in January when she did.
12. If she satisfies this provision of the Act then she is entitled to have her payments backdated to 24 November when she first approached the Department.
the hearing
13. The applicant presented herself at the hearing by telephone. Mr Edwards represented the Department. The documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibit R1. A note from an officer at the Victor Harbor Centrelink office to the Authorised Review Officer was Exhibit R2.
14. The applicant was a straightforward witness. She confirmed the facts that were already set out in the SSAT decision (T2/2-8).
15. Immediately before approaching Centrelink in November 2005, the applicant had injured the top of one of her fingers at work. She went to the Centrelink office at Victor Harbor with a friend to make a claim for NSA. The officer that she dealt with brought out various papers, but the applicant was very clear in her evidence that she was not provided with a claim form and that she was told that without her birth certificate she could not make a claim. This advice was queried by her friend, but the Centrelink officer was adamant that this advice was correct.
16. The applicant left the office. She immediately applied for her birth certificate which required her writing interstate, and as soon as she received the birth certificate, she lodged her claim for NSA on 16 January 2006.
17. She acknowledged that she received a letter from Centrelink shortly after 24 November 2005 (T5/27). That letter told her that if she completed a claim form and returned it to them before 8 December 2005, then she would qualify for NSA from 24 November 2005. Given the advice that she had received, she formed the view that she could not lodge a claim form before 8 December 2005 unless she had her birth certificate by that date as she had been told quite categorically that that was a prerequisite to lodgement of a claim. She had already tried to lodge a claim once and she had been knocked back by the Department.
18. The applicant borrowed money from her father to support herself during December and until her NSA started in January 2006. She has been paying her father back over time and she acknowledges that she borrowed more from him than would have been her Centrelink entitlement. She still owes him $1,000 or so.
19. She considers herself to have been significantly disadvantaged by the advice from Centrelink and she contends that the Tribunal should exercise its discretion to backdate her NSA to the date that she first sought advice from Centrelink, being 24 November 2005.
consideration of the evidence
20. The Tribunal accepted the applicant’s account of what occurred when she approached Centrelink in 2005. The Tribunal asked the Department’s advocate whether it was conceded that an error had occurred at Departmental level in the advice give to the applicant. The response was somewhat vague. The Department did not accept that an error had not been made, but it did not deny the possibility of an error being made. No direct inquiries have been made of the officer who had supposedly made the error. The Department conceded that it was a junior officer who had given the advice.
21. The Tribunal had regard to the note from Rachel Young of the Victor Harbour office (Exhibit R2). That note certainly implies that she, as an internal Centrelink officer in the Victor Harbor office, considered that the decision should be overturned and in the notes in the T documents it is mentioned that the team leader also mentioned customer compensation. This would appear to be some acknowledgement of error within the Centrelink office such that individual members of the office felt strongly that the customer should be compensated as a result of that error, but did not have the power to do so themselves.
22. The Tribunal made the following findings of fact:
·The applicant attended at the Centrelink office at Victor Harbor on 24 November 2005 in company with a friend.
·In her initial interview at the counter she was told that she could not make a claim for NSA without her birth certificate and she was sent away to obtain a copy of her birth certificate.
·At the same interview, although a claim form may have been generated, no claim form was handed to the applicant and she did not walk away from the office with a claim form.
·The Centrelink officer who gave the advice was a junior officer and that officer gave incorrect advice that one of the prerequisites for lodging a claim was that a birth certificate was required.
·The applicant immediately wrote away for her birth certificate, but as it had to be obtained from interstate and possibly because of Christmas, it took some weeks to arrive.
·As soon as the applicant received her birth certificate, she presented at the Centrelink office once more and lodged a claim for NSA.
·In the interim period, between 24 November 2005 and 16 January 2006, the applicant had no source of income.
·She borrowed from her father to manage during that period.
·As a result of that she has a $1,500 debt to her father.
·She has now resumed a position in the workforce and she is gradually paying that debt back over time.
·The applicant received a letter from Centrelink dated 24 November 2005 (T5/27), which acknowledged her attendance at the Centrelink office in November and advised her to lodge a claim before 8 December 2005 if she wanted to be paid from the date that she approached the Department in November. As her birth certificate had not yet arrived she considered that there was no point in trying to make a claim.
consideration and application of the law
23. The Tribunal is satisfied that there is only one provision under which any backdating can be considered and that is the provision set out in s 13(3A) of the Administration Act. If the Tribunal is satisfied that “in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier” then the Tribunal can determine that the applicant is taken to have made a claim on the day on which the Department was contacted, which was 24 November 2005.
24. The meaning of the concept of “special circumstances” has been considered on many occasions in the context of Social Security law. The phrase appears in various sections of the Social Security Act 1991 and the Administration Act. Special circumstances arise on the facts of an individual case and it has long been accepted that for circumstances to be special, there must be something unusual, uncommon or exceptional arising out of the circumstances of the case. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal summarised the position as follows:
“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. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. 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.”
25. Section 13(3A)(e) of the Administration Act requires not just special circumstances, but that there are special circumstances such that it was not “reasonably practicable” for the person to lodge the claim earlier.
26. The Tribunal is satisfied that there are special circumstances in this case. A junior Centrelink officer gave entirely incorrect information to an individual. A claim form was possibly issued, but not given to the applicant to take away with her. The applicant, being a sensible and logical person, went away after being told that there was no point in lodging a claim unless she had a birth certificate.
27. The applicant applied for a birth certificate and it took some weeks to arrive as it was an interstate application.
28. In the recent case of Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Justice Besanko considered the concept of special circumstances once more as referred to in s 1237AAD of the Act. He referred to Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 where Justice Branson had held that the use of the term “special circumstances” in the legislation demonstrates an intention to proscribe waiver in ordinary cases. Nevertheless, she went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case. Justice Besanko said at paragraph 33 of Angelakos:
“… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances … It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. … there must be something that distinguishes the case from the ordinary or usual case. …”
29. The Tribunal’s view is that there is considerable unfairness and hardship to the applicant in this case and it is an exceptional case in that she was given erroneous information by the Centrelink officer that led her to believe that she could not lodge a claim until she had a birth certificate to lodge with that claim. She had tried to make a claim once on 24 November 2005 and she was turned away and told not to return until she had the birth certificate. Her friend, in her presence queried the advice as the applicant had at some earlier time been a Centrelink client, but the advice was confirmed by the Centrelink officer.
30. As a result, the applicant has suffered hardship and she has had to borrow funds to support herself during the Christmas period. The Tribunal is satisfied that there are exceptional and unusual circumstances in this case and considerable hardship to the applicant that warrant finding special circumstances.
31. The Tribunal must then determine whether, in the context of s 13(3A) of the Administration Act, that in the special circumstances of this case “it was not reasonably practicable” for the applicant to lodge her claim earlier.
32. In the recent case of Re Langenberg and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1053 Member Perton considered the application of the same provision of the Administration Act. She referred to the case of Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 where the High Court was considering an industrial accident and the precautions that should be taken to avoid industrial accidents and injuries to workers. Justice Gaudron considered the concept of “reasonably practicable” in the context of other legislation. She stated at page 322:
“52. … Once it is accepted that the statutory duty is to design a structure that is as safe as reasonably practicable for construction workers, it follows that the designer is required to incorporate safety features in the design to ensure the safety of those workers if those features are reasonable practicable. That imposes a much higher standard than the exercise of reasonable care in designing a structure.
53. The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
·the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";
·what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;
·to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.”
33. What was reasonably practicable for the applicant to do in this case? Clearly, it was physically possible for her to lodge a claim had she gone down to Centrelink once more and demanded a claim form. Nevertheless, based on what she knew at the time which was based on erroneous Centrelink advice, it was not reasonably practicable to lodge a claim until such time as she had the birth certificate in her hand which she had been told was the key document to her ability to lodge a claim.
34. It made little sense for her to present at Centrelink, given the very clear direction she had been given that there was no point in her applying until she had a birth certificate. In Re Langenberg the facts were somewhat different. In that case it was not a matter of Mr Langenberg being given incorrect information, but a matter of a document not arriving that he could have easily checked up on earlier. Mail does get lost and to a degree, people have an obligation to use their common sense and chase up mail that has been sent to them. This case is quite distinguishable from the facts of that case. If a person is told that a prerequisite to the lodgement of a claim is that they must have a certain document in their hand, then it is not reasonably practicable for them to continue to present at an office in an attempt to lodge a claim when they do not have the key document yet.
35. In the circumstances the Tribunal is satisfied that in the special circumstances of this case it was not reasonably practicable for the applicant to lodge her claim form until such time as she had the key document, namely her birth certificate, in her hand. The Tribunal is satisfied on her evidence that as soon as that document was received in the post, she presented on the next available business day at Centrelink and made her application. The Tribunal considers it appropriate to exercise the discretion in s 13(3A) of the Administration Act. In the circumstances, the Tribunal sets aside the decision under review and substitutes a decision that the applicant is taken to have made her claim for Newstart Allowance on the day that she contacted the Department, namely 24 November 2005.
36. The Tribunal sets aside the decision under review and substitutes the decision that the start date of payments of Newstart Allowance to the applicant should be 24 November 2005.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ...........J Coulthard............................................
AssociateDate of Hearing 12 April 2007
Date of Decision 2 May 2007
Advocate for the Applicant In personAdvocate for the Respondent Mr P Edwards
Centrelink Legal Services Branch
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