Ian Menzies and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 520
[2013] AATA 520
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5458
Re
Ian Menzies
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 24 July 2013 Place Sydney The Tribunal affirms the decision under review.
..........[Sgd]..............................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether start date of payment is correct – date of actual lodgement of claim form – earlier date on which application is deemed to be lodged – criteria not met – no discretion – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) ss 13, 16
REASONS FOR DECISION
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
The decision of the Social Security Appeals Tribunal (SSAT) dated 25 October 2012 which affirmed Centrelink's decision that the Applicant was not entitled to receive Newstart allowance prior to 27 April 2012.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether the Applicant should be paid Newstart allowance prior to 27 April 2012.
BACKGROUND
On 5 December 2011 the Applicant telephoned Centrelink in relation to making a claim for disability support pension (DSP). Centrelink’s online record notes:
Customer contacted JCN MORELAND on 5 Dec 2011 regarding Claim for Disability Support Pension. Information was obtained via Phone Call…
...
Consider assessment of Newstart Provisional whilst the customer is waiting for a decision regarding their entitlement to Disability Support Pension…
...
Cus[tomer] stated has a long term perm medical condition and cus[tomer] stated is currently not looking for work, cus[tomer] and ptr [partner] are working for their [s]on and waiting on payment from their last job...
On the same day, Centrelink sent a letter to the Applicant which acknowledged his intention to claim DSP. The letter enclosed a DSP claim form and informed the Applicant that he should return the completed and signed claim form on or before 19 December 2011.
Centrelink sent a further letter to the Applicant that day regarding the Applicant's intention to claim a payment, presumably Newstart allowance, which was also discussed during the telephone call that day, and a concession card.
Centrelink's records indicate no further activity on the Applicant's customer file until 27 April 2012, when the Applicant attended the Centrelink office in Port Macquarie in relation to seeking assistance in relation to a claim for DSP. For reasons which are unclear, he was informed that he would need to phone the Centrelink Call Centre. The Applicant contacted the Centrelink Call Centre that day. Its officer recorded:
Customer contacted CC TWEED HEADS on 27 APR 2012 regarding Claim for Disability Support Pension. Information was obtained via Phone Call.
…
Consider assessment of Newstart Provisional whilst the customer is waiting for a decision regarding their entitlement to Disability Support Pension.
A further Centrelink record that day notes:
Customer contacted CC TWEED HEADS on 27 APR 2012 regarding General Enquiry, Claim...
…
Date Last Worked: Back in December [20]11
Appointment Notes: Booked as double appointment as partner needs to claim, cus[tomer] will be claiming DSP but would like to test his eligibility for NSA [newstart allowance] while waiting for DSP claim to be processed...
An appointment was arranged for the Applicant and his wife to participate in a telephone interview the following day.
On 27 April 2012 Centrelink sent a letter to the Applicant which acknowledged his intention to claim DSP. The letter enclosed a DSP claim form and informed him that he should return the completed and signed claim form on or before 11 May 2012.
The Applicant participated in a telephone interview with a Centrelink staff member on 28 April 2012, and he was advised to attend a Customer Service Centre on 10 May 2012 to lodge a Customer Declaration Form and verification documents.
On 30 April 2012 Centrelink sent a letter to the Applicant which acknowledged the Applicant's intention to claim Newstart allowance. In a further letter of the same date, Centrelink advised the Applicant that a decision had been made that he would be paid Newstart allowance from 27 April 2012, although he was required to submit proof of identity documents to Centrelink by 27 May 2012. The Applicant provided the necessary documents to Centrelink on or about 10 May 2012.
On 16 May 2012 the Applicant sought a review of Centrelink's decision to pay him Newstart allowance from 27 April 2012. The Applicant wanted to be granted Newstart allowance from 5 December 2011. That decision was affirmed on internal review and by the SSAT.
LEGISLATION
The relevant legislation is to be found in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 ('the Administration Act').
Section 11 of the Administration Act provides that a person who wants to be granted a social security payment; must make a claim for the payment or card in accordance with s 16 of the Administration Act which provides:
16 How to make a claim
(1)A person makes a claim for a social security payment or a concession card:
(a)by lodging a written claim for the payment or card; or
(b)by making the claim in accordance with subsection (7).
(2)A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
Section 13 of the Administration Act, however, contains provisions which allow a claim to be deemed to have been made when an earlier contact has been made in relation to the type of benefit. The provision can only apply where certain very specific criteria have been met. One of the essential criteria is that the the person lodges a claim for the payment not more than 13 weeks after the Department is contacted.
CONSIDERATION OF THE EVIDENCE
I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. The parties agreed that the decision could be made on the papers.
Mr Menzies discussed with the SSAT his telephone conversation with the Centrelink customer service officer on 5 December 2011. He was recorded in the SSAT’s decision as having confirmed that he was told he would be sent out forms to complete to proceed with his claim. When they did not arrive he said he felt annoyed and let down, and he and his wife tried to manage for as long as they could; they borrowed money from family. Finally they could manage no longer and he contacted Centrelink again on 27 April 2012.
Section 13 of the Administration Act provides some exceptions to the general rule set out in s 11 of the Administration Act. Section 13(1), for instance, provides that if a qualified claimant contacts Centrelink and then lodges a claim form within 14 days, the claim can be paid from the date Centrelink was contacted. Other subsections address circumstances which delay lodgement of the formal application, and allow for lodgement up to 13 weeks after contact. However, in this case, although the Applicant contacted Centrelink about Newstart allowance on 5 December 2011, he did not lodge his claim in the approved form until 27 April 2012, that is, more than 13 weeks after 5 December 2011.
The SSAT considered, from information Mr Menzies provided at the hearing, that he had several issues that were occupying his attention, in particular extensive court proceedings. However, these issues cannot be considered by the Tribunal to extend the time for lodging a claim forms pursuant to s 13.
Mr Menzies also raised medical issues with the SSAT, which acknowledged that he has some impairments to his neck and kidneys, but he did not submit that those conditions prevented him from lodging claim forms.
Centrelink records are to the effect that the claim form was sent to Mr Menzies, but he claimed he did not receive it. Even if Mr Menzies did not receive the claim form allegedly sent to him by Centrelink on 5 December 2011 that does not assist his contention. A requirement to enliven the backdating provisions of s 13 is that Centrelink gives the claimant a written notice acknowledging that it has been contacted in relation to the making of the claim (per s 13(3)(c)). This may lead to bizarre results. For example, if a Centrelink officer does not send the acknowledgement letter, and further enquiry is not made by the claimant within 13 weeks, the claimant can never succeed in having the start date backdated. The same result would occur if there was a Centrelink computer error that failed to generate the letter. The end result is that backdating the claim could never be achieved when the only ‘fault’ of the claimant is to have failed to follow up with Centrelink; the claimant is entirely in Centrelink’s hands in that regard. However had Mr Menzies followed up with Centrelink within 13 weeks, the claim could probably have been backdated to 5 December 2011.
The legislation is clear: the deeming provisions in s 13 of the Administration Act do not entitle the Applicant to payment of Newstart allowance from 5 December 2011, as the Applicant did not lodge a claim for Newstart allowance until 27 April 2012, and this is the earliest date from which the Applicant is entitled to be paid Newstart allowance.
Notwithstanding the decision I must make, I accept that Mr Menzies may have found his dealings with Centrelink to be confusing and frustrating. However, it was entirely unclear why Mr Menzies may have continued to endure some financial hardship and anger when he could have contacted Centrelink to follow up on his contact.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. ......[Sgd]..................................................................
Associate
Dated 24 July 2013
Date of hearing 22 July Applicant In person Solicitors for the Respondent C Hutchins, DHS Litigation Review Branch
0
0
0