Hyde and Secretary, Department of Social Services (Social services second review)

[2017] AATA 2096

Hyde and Secretary, Department of Social Services (Social services second review) [2017] AATA 2096 (7 November 2017)

Division:General Division

File Number(s):      2017/1699

Re:Braden Hyde

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:7 November 2017

Place:Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

SOCIAL SECURITY – job commitment bonus – claim not made within 90 days of qualification – absence of special circumstances – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Budget Savings (Omnibus) Act 2011

Social Security (Administration) Act 1999 (the Administration Act)

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

7 November 2017

REASONS FOR DECISION

Background

1. The Applicant had been in receipt of youth allowance (YA) for over 12 months when he obtained full-time employment. Having completed a continuous period of 12 months employment he became eligible for a job commitment bonus (the bonus). The Applicant lodged a claim for the bonus on 4 August 2016 however the claim was rejected on the basis that it had not been lodged within 90 days of qualifying for the payment. Centrelink’s decision was affirmed by both an authorised review officer of the Department and by the Social Services and Child Support Division of the AAT (first-tier review). The Applicant now seeks a review by this Tribunal.

2. It is accepted that the Applicant obtained full-time employment on 7 April 2015 and completed a continuous period of employment of 12 months on 6 April 2016. The Applicant was qualified to receive the bonus which he claimed on 4 August 2016. The Applicant has advised that he was not prevented from submitting his claim on an earlier date due to a medical condition or any other extreme circumstances.

   Contentions and Evidence

3. It is the Applicant’s contention that he was provided with false and misleading information by Centrelink in the form of correspondence dated 6 May 2016 and oral advice that his claim would be accepted. This correspondence advised the Applicant that he may be eligible to make a claim for the bonus of $2500 after he had been in continuous gainful work for 12 months and that he had 90 days in which to make his claim.

4. It is submitted on behalf of the Respondent that the Applicant failed to lodge his claim within 90 days of becoming qualified and there are no special circumstances which prevented him from lodging his claim within 90 days of becoming qualified which expired on 5 July 2016. Accordingly, the decision under review to reject the claim should be affirmed.

5. The Applicant represented himself at the hearing and gave oral evidence. A written statement dated 28 June 2017 prepared by the Applicant was received in evidence. The Respondent was represented by Mr Sparkes. The T documents were tendered in evidence pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

6. The Applicant gave evidence that he had continued to receive Social Security payments in the form of YA after he commenced full-time work on 7 April 2015. He said that the last payment that he had received was a payment in the sum of $20.80 on 8 May 2015. It was accordingly the Applicant’s contention that the 90 day eligibility period should run from this date rather than the date when he started full-time employment.

7. At the conclusion of the hearing directions were made affording the parties time to make any further submissions with respect to this evidence. Written submissions were received from both parties. It was submitted by Mr Sparkes that the payment of $20.80 that was made on or about 6 May 2015 was an approved program of work supplement which was made in error as the Applicant was not entitled to the payment at the time because he was in full-time work. It was Mr Sparkes’ submission that the applicant was not eligible for YA beyond the time he commenced work on 7 April 2015 and accordingly he was not entitled to the supplementary payment. There was also evidence that the Applicant had been paid an amount of $61.94 on 27 April 2015. Mr Sparkes submitted that the Applicant was not entitled to receipt of this payment and attached a document that indicated that a debt had been raised in the sum of $41.59 which had subsequently been waived.

   Issue

8. There is no dispute that the Applicant qualified for the bonus. The issue in this matter is whether the Applicant lodged his claim within the requisite timeframe.

   Legislation

9. The qualification provisions for the job commitment bonus are contained in Part 2.16A of the Social Security Act 1991 (Cth) (the Act). Section 860 contains a simplified outline of this Part and states as follows…:

   A person aged 18 or over and under 31 who receives newstart allowance, or certain youth allowance, for at least 12 months and who then completes 12 months continuous gainful work may qualify for a job commitment bonus of $2,500.

   If the person then completes a further 12 months continuous gainful work, the person may qualify for another job commitment bonus of $4,000.

   Gainful work covers work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

10. The qualification provisions are set out in s 861. Subsection 1 contains the provisions with respect to the ‘first bonus’ claimed by the Applicant.

11. The bonus payment ceased on 31 December 2016 pursuant to the provisions of the Budget Savings (Omnibus) Act 2011.

12. The relevant time limit provisions were set out in s 27D of the Social Security Administration Act 1999 (the Administration Act) which has now been superseded. That provision stated as follows:

    (1) Subject to this section, a person’s claim for a job commitment bonus must be made within the period (the initial period) of 90 days after the person is qualified for the bonus.

    Extension in special circumstances

    (2) The claim may be made after the end of the initial period if the Secretary is satisfied that there are special circumstances applying to the person that prevented the person from making the claim within that period. If so, then, subject to subsection (3), claim must be made within 90 days after the end of that period.…

    Consideration and Findings

13. Pursuant to the provisions of s 861, the Applicant qualified for the bonus on 6 April 2016 which was 12 months after he commenced continuous gainful work. Accordingly, and pursuant to the provisions of s 27D of the Administration Act, his claim must be made within 90 days of being qualified, namely by 5 July 2016 (the initial period). The Applicant’s claim for the bonus was lodged on 4 August 2016. The provisions of subsection 27D state that a claim can be made after the end of the initial period where there are special circumstances that prevented the person from making the claim within that period.

14. It is the Applicant’s contention that he was never advised by Centrelink of the date by which his claim for the bonus should be made. He claims that the letter he received from Centrelink dated 6 May 2016 was misleading in that it suggested he had 90 days to make his claim for the bonus which he understood ran from the date of the letter.

15. In his evidence to the Tribunal, the Applicant acknowledged receiving Centrelink’s letter dated 6 May 2016 but said at the time he ignored it and didn’t take any action for a period of some three months when he contacted Centrelink regarding a claim. He was advised by Centrelink officers that he qualified for the bonus payment and would receive it upon lodging a claim.

16. The written submissions from the Applicant tendered in evidence detail his numerous complaints about the claim process. They do not however contain a satisfactory explanation as to why he did not make his claim within the qualification timeframe except to state that he was unsure as to when the 90 days expired.

17. There is no evidence, and nor does the Applicant submit, that there were any circumstances which could be considered ‘special’ that prevented him from making his claim within the requisite timeframe. The Applicant states in his claim that he had no medical condition that prevented him from submitting his claim nor was he prevented from submitting his claim due to another extreme circumstance (T5, p 13).

18. The legislation requires that the special circumstances must have ‘prevented’ the person from making the claim in time. There is simply no evidence of a special circumstance that prevented the Applicant from making a claim for the bonus payment by 5 July 2016. There are no other grounds upon which the period within which to lodge a claim can be extended. The Applicant’s contention that he was not advised about the timeframe within which to lodge his claim does not constitute a special circumstances preventing him from making his claim within the required time.

19. Nor does the fact that the Applicant continued to receive payments from Centrelink to which he was not entitled following his commencement of full-time employment on 7 April 2015 affect the 90 day period. Attached to the Respondent’s Statement of Facts, Issues and Contentions was a document containing information relating to the eligibility criteria for the bonus payment. The notes accompanying the criteria state that:

    date of cancellation is not the determining factor, it is the date the person received their last payment of NSA or YA (other). This excludes supplementary payments such as rent assistance and Telephone Allowance (TAL).

20. The evidence was that the $20.80 received by the applicant on or about 6 May 2015 was a supplementary payment in the form of an approved program of work supplement. This payment is provided for in s 556 A of the Social Security Act 1991 being a payment which a person is entitled to when they are receiving YA and participating in an approved program of work for an income support payment. Because the Applicant was in full-time work at the time he was not entitled to the payment which was made in error.

21. Nor was the Applicant entitled to the payment of $61.94 which was paid on 27 April 2015 which post-dated the commencement of his full-time employment. The last payment of YA to which the Applicant was entitled was in the gross amount of $306.40 as shown in Attachment F to the Respondent’s supplementary statement. The delivery date of this payment is stated to be 13 April 2015. Even if the 90 days ran from that date, it would still not cover the date when the Applicant lodged his claim being on 4 August 2016 which was well outside the statutory timeframe.

22. The Tribunal, being satisfied that the Applicant failed to lodge his claim for bonus payment within the period specified by the legislation, must accordingly affirm the decision under review.

I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Associate

Dated: 7 November 2017

Date(s) of hearing:	2 August 2017
Date final submissions received:	14 August 2017
Applicant:	In person
Counsel for the Respondent:	Mr Brian Sparkes, Department of Human Services