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

JXWV and Secretary, Department of Social Services (Social services second review) [2021] AATA 5019 (10 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/7544-5
2021/7548

Re:JXWV
VGHY
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO Member
Date:10 December 2021
Date of written reasons: 14 January 2022
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success. The Tribunal, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, dismisses the application.
............................[sgd]............................................
Ms A E Burke AO Member
Catchwords
SOCIAL SECURITY –– oral decision ––not eligible for economic support payment –- review therefore futile – application dismissed as no reasonable prospects of success.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member
14 January 2021

JXWV and VGHY (the Applicants) are seeking a second-tier review of the decision made by the Social Services and Child Support Division of this Tribunal (AAT1) of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant them the Commonwealth Government’s first economic support payment (ESP) during 12 March 2020 to 13 April 2020 because they were not eligible.
JXWV and VGHY’s son contacted Centrelink on 16 March 2021 about the Applicant’s eligibility for the first ESP. He was advised that his parents were not eligible for the first ESP as they were not in receipt of an eligible payment or concession card holders. On 14 September 2020, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. JXWV and VGHY sought review of the decision by the ARO at AAT1, which affirmed the decision on 18 August 2021. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
At the hearing of this dismissal application by telephone on 10 December 2021, JXWV and VGHY were represented by their son, and Ms Stefana Doslo, Government Lawyer in the Legal Services Division of Services Australia, appeared for the Respondent.
The Tribunal made an oral decision to dismiss JXWV and VGHY’s applications as it was futile. JXWV and VGHY’s son subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These are those reasons.
BACKGROUND
On 16 March 2020, JXWV and VGHY’s son contacted Centrelink about his parents’ eligibility for the first ESP. He was advised that his parents were not eligible as they were not in receipt of an eligible payment or holders of a concession card.
On 29 June 2020, JXWV and VGHY submitted an application for a Commonwealth Seniors Health Card (CSHC). On 16 July 2020 Centrelink granted JXWV and VGHY a CSHC effective from the 30 June 2020.
On 14 September 2020, an ARO reviewed the decision not to grant JXWV and VGHY the ESP:
A concession card is generally granted from the day a claim is submitted.
Sometimes a claim can be taken to be made on the day a person first contacts, even when they don't submit a claim until later. This includes where the person is qualified for the payment on the day they first contact and they are a vulnerable claimant. A vulnerable claimant includes a person who was unable to submit their claim on the day they contacted because of circumstances such as homelessness, temporary incapacity or hospitalisation.
There is no evidence on your record to support that you were a vulnerable claimant.
As you are not accepted as being a vulnerable claimant, the decision to grant your Commonwealth Seniors Health Card from 30 June 2020 is correct.
A person is qualified for the first 2020 Economic Support Payment if, between 12 March 2020 and 13 April 2020, they are normally living in Australia and are receiving a qualifying payment or hold a qualifying concession card.
As you were not the holder of a qualifying concession card between 12 March 2020 and 13 April 2020, you were not qualified to receive the first 2020 Economic Support Payment.
I understand that your son believes that you may have suffered an economic loss as a result of Services Australia's failure to meet their duty of care in relation to the correct information regarding your Commonwealth Seniors Health Card claim.
Commonwealth agencies have a Duty of Care to administer legislation and policy responsibly and reasonably and to provide accurate, appropriate and unambiguous information. When a Commonwealth agency has acted unreasonably or provided incorrect or ambiguous information, which leads to a financial (and sometimes non-financial) loss, it is reasonable to expect that the agency should provide compensation for the loss, even if its actions do not amount to a liability to the other party.
There is a compensation scheme available to people who have suffered an economic loss as a result of Commonwealth mis-administration and it is known as Compensation for Detriment Caused by Defective Administration (CODA). CODA provides Commonwealth agencies with a discretionary authority to compensate persons who have been adversely affected by the actions or inaction of such agencies where the test of legal liability cannot be satisfied, and where there is no remedy available under statute or contract.
On 9 December 2020 and 3 March 2021, JXWV and VGHY received the second ESP payments of $250 which the Government announced was to provide further financial support to eligible social security recipients and concession card holders.
On 18 August 2021, the AAT1 affirmed the decision of the ARO to reject JXWV and VGHY’s claim for the first ESP, stating:
Generally speaking, the start date of a concession card is the date on which the claim for the card is lodged. Here that was 30 June 2020. There are exceptions to this rule. One of the exceptions is set out in subsection 14(3A) which provides that, if a person contacts the Agency on a certain date and subsequently lodges a claim, and in the special circumstances of the case it was not reasonably practicable for the person to lodge a claim on an earlier date, then the Secretary (and this Tribunal) may determine that the start date is the date of contact.
This Tribunal finds that the incorrect advice given to JXWV and VGHY son on 16 March 2020 effectively prevented them from lodging claims for Seniors Cards earlier than 30 June 2020, and, were it not for an additional requirement of the subsection, that the claim must in any event, be lodged within 13 weeks of the original contact, this Tribunal would have considered it appropriate to determine that 16 March 2020 was the start date of their Seniors Cards.
However, the claims were lodged more than 13 weeks after 16 March 2020, so the Tribunal has no power to alter the start date. It follows that the decision under review is correct.
It is worth noting that, if there were evidence before the Tribunal of contact made with the Agency between 31 March 2020 and 12 April 2020, being dates that fall within the window of eligibility and are within 13 weeks prior to lodgement of the claim, it would have changed the start date accordingly.
On 15 September 2021, on behalf of his parents, JXWV and VGHY’s son sought a review of the AAT1 decision by the General Division of this Tribunal (AAT2) as he disagreed with the decision.
ISSUE IN CONTENTION
The issue for determination before the Tribunal is whether JXWV and VGHY’s application for review has any prospect of success.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the AAT Act, referred to as the "T documents". JXWV and VGHY’s son also provided written submissions and oral evidence at the hearing.
JXWV and VGHY currently hold a CSHC but are otherwise not in receipt of any social security payments.
JXWV and VGHY’s son provided the family phone records which indicate that on 16 March 2020 a call was made to 132 300 which lasted for 55 minutes.
On 31 August 2020, Centrelink advised JXWV and VGHY of their investigation into call records from 16 March 2020:
…The request was for access to a call recording on 16th March 2020 where Commonwealth Seniors Health Card & Economic Supplement entitlements were allegedly discussed.
We have exhausted all possible search criteria in an effort to locate the call recording.
The recording of calls relies on a number of automated IT processes and, while it is reliable infrastructure, Services Australia cannot guarantee all required calls will be recorded. From time to time outages or issues with the infrastructure mean a call may not be recorded.
A copy of your phone bill was received but searches failed to locate any call recordings from xxx, this can occur if a telephone number is silent or anonymous.
A Centrelink receipt number of 792701 was also contained on the phone bill. This receipt number 792701 was located on your record but for the date 6th August 2020. No receipt numbers were located for 16th March 2020.
On 12 February 2021, JXWV and VGHY were advised their claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) against Services Australia had been denied. The decision maker found Services Australia was not defective in its administration of JXWV and VGHY’s claim for the first ESP payment. The decision states:
Why the claimant believes compensation & should be paid
6. JXWV and VGHY son states a Services Australia Service Officer advised him on 16 March 2020 that his parents would not be eligible for the first Economic Support Payment (ESP) if they claimed Commonwealth Senior Health Care Cards (CSHC) as they had to have claimed the cards before the announcement about the ESPs.
7. JXWV and VGHY son said he later found out that the advice was not correct and his parents could have been eligible for the ESP If they claimed the CSHCs by 13 April 2020.
Key background facts
8. JXWV and VGHY reached the qualifying age for the CSHC prior to 2020.
9. JXWV and VGHY son said that he called the agency about CSHCs, after hearing the government announcement about the Economic Support Payments. He provided the family's home telephone record showing a call to the agency on 16 March 2020 for 55 minutes.
10. He said that the Service Officer told him that his parents would not be eligible for the ESPs because they had not claimed the CSHCs before the announcement of the payments. He said that he asked the Service Officer to check with a supervisor and the supervisor confirmed that the ESPs would not be paid unless the claims for CSHCs were lodged prior to the government announcement.
11. He said that his parents did not proceed with claiming the CSHCs until they heard another announcement advising of further payments of the ESP.
12. The agency cannot locate the call recording. As JXWV and VGHY son did not know his parents' Customer Reference Numbers, the Service Officer did not access their records to answer his question and therefore there is no means to trace the relevant Service Officer.
13. JXWV and VGHY son also called the agency from a phone number which is not publicly available. This means that calls from the number show as "anonymous" in the call recordings.
14. The Case Manager undertook a search of cells which show as anonymous in the call recordings but was unable to locate the recording.
15. JXWV and VGHY lodged CSHCs on 30 June 2020. JXWV and VGHY son advised that he went with his parents to a service centre to lodge the claim and confirm their identity.
16. JXWV and VGHY received the second ESP on 20 July 2020.
17. JXWV and VGHY sought review of the decision not to pay the first ESP.
18. On 14 September 2020, an Authorised Review Officer decided that 30 June 2020 was the correct start day of the CSHCs under social security law, so JXWV and VGHY were not qualified for the first ESP.
19. On 12 March 2020, the Prime Minister announced the economic plan in response to the spread of the coronavirus. The plan included the stimulus payments to households of $750 for recipients of eligible payments or concession cards and payments would start to be made from 31 March 2020.
20. On 22 March 2020, the Prime Minister announced the second stage of the economic plan. He announced the second $750 stimulus payment, which was to be paid from 13 July 2020. The media release stated the first S750 payment would be made from 31 March 2020 to people who will had been on one of the eligible payments any time between 12 March 2020 and 13 April 2020.
21. The agency's records show Operational Blueprint 101-20031226 - Economic Support Payment was created on 12 March 2020 and it only refers to the relevant date of eligibility for payment as 12 March 2020.
22. On 30 March 2020, the agency updated Operational Blueprint 101 -20031226 and recorded the extension of the test period of eligibility to be from 12 March 2020 to 13 April 2020. The procedure also referred to the second ESP that would be payable to customers holding qualifying payments or CSHCs on 10 July 2020.
Was there defective administration?
27. I am not satisfied that the Service Officer provided incorrect advice to JXWV and VGHY son. As referred to above, the information provided on 16 March 2020 was correct at the time it was provided.
28. As noted, the Prime Minister announced the second stage of the economic plan on 22 March 2020, which is when the eligibility period for the Economic Support Payment was changed for CSHC holders or applicants for the CSHC.
29. The information about when the eligibility period changed is found through looking at the history of when the administrative procedures changed. Service Officers who discussed the matter with JXWV and VGHY son in his later contacts may have given him the impression that any earlier advice was incorrect, without looking at the history of the changes.
30. As I am not satisfied that defective administration occurred which caused the delay in JXWV and VGHY in lodging claims for the CSHC, compensation is not payable under the CODA Scheme.
RELEVANT LEGISLATION
The Australian Government COVID-19 Economic Response, last updated 28 September 2020, outlines the payments to support households:
These payments will provide assistance to lower income Australians, including pensioners, other social security and veteran income support recipients and eligible concession card holders.
Economic Support Payments
Summary
The Government has provided two separate $750 payments to social security, veteran and other income support recipients and eligible concession card holders. Around half of those that benefit are pensioners. These payments will support households to manage the economic impact of the Coronavirus.
• The first payment was available to people who are eligible payment recipients and concession card holders at any time from 12 March 2020 to 13 April 2020 inclusive.
• The second payment was available to people who are eligible payment recipients and concession card holders on 10 July 2020.
The Government is providing a further two additional Economic Support Payments of $250 to pensioners, other social security recipients, veterans and eligible concession card holders to assist them through the ongoing financial challenges they are continuing to face as a result of the Coronavirus.
• The third payment will be available to people who are eligible payment recipients and concession card holders on 27 November 2020.
• The fourth payment will be available to people who are eligible payment recipients and concession card holders on 26 February 2021.
The Social Security Guide at 3.7.7 outlines the qualification for the 2020 and 2021 ESP’s:
Background
The Government provided 2 payments of $750 to eligible payment recipients and concession card holders, from 31 March 2020 and 13 July 2020.
The Government also provided 2 additional ESPs of $250 each, from 30 November 2020 and 1 March 2021.
These payments were intended to address the economic impacts of the global coronavirus.
Qualification
A person is qualified for the first 2020 ESP (ESP1) if, on a day in the period 12 March to 13 April 2020, they were residing in Australia and were receiving a qualifying payment or held a qualifying concession card.
The following are qualifying payments:
·Age, DSP, CP, CA, PPS, PPP, WP, WidB, NSA, JSP, DOP, Austudy, BVA, YA, PA, WA, SA, SpB
·FTB
·ABSTUDY living allowance - see ABSTUDY Policy Manual
·farm household allowance
·payments administered by DVA - see Consolidated Library of Information and Knowledge (CLIK).
The following are qualifying concession cards:
·Commonwealth seniors health card
·pensioner concession card
·veteran gold card
Part 2.6B—2020 of the Social Security Act1991 (Cth) (the Act) outlines the qualification and eligibility requirements for the first ESP:
Section 304 First 2020 economic support payment
Qualification for payment
(1) A person is qualified for a first 2020 economic support payment if subsection 308(2), (3) or (4) applies to the person on a day in the period:
(a) starting on 12 March 2020; and
(b) ending on 13 April 2020.
Section 305 Amount of first 2020 economic support payment
The amount of a person’s first 2020 economic support payment under this Division is $750.
Section 308 Eligibility
(1) This section applies for the purposes of subsection 304(1) and paragraph 306(1)(a).
Receipt of certain benefits
(2) Subject to subsection (5) of this section, this subsection applies to a person on a day if the person receives one of the following benefits in respect of that day:
(a) age pension;
(b) disability support pension;
(c) wife pension;
(d) carer payment;
(e) bereavement allowance;
(f) widow B pension;
(g) widow allowance;
(h) parenting payment;
(i) youth allowance;
(j) austudy payment;
(k) newstart allowance;
(l) jobseeker payment;
(m) sickness allowance;
(n) special benefit;
(o) partner allowance;
(p) carer allowance;
(q) double orphan pension.
Note: References to youth allowance, newstart allowance and jobseeker payment include references to farm household allowance: see section 93 of the Farm Household Support Act 2014.
Qualified for seniors health card
(3) Subject to subsection (5) of this section, this subsection applies to a person on a day if:
(a) the person makes a claim for a seniors health card under Division 1 of Part 3 of the Administration Act on or before that day; and
(b) the person does not withdraw that claim on or before that day; and
(c) the person is qualified for the card on that day.
Qualified for pensioner concession card
(4) Subject to subsection (5) of this section, this subsection applies to a person on a day if the person is qualified for a pensioner concession card on that day.
Residence requirement
(5) Subsection (2), (3) or (4) does not apply to a person on a day if the person does not reside in Australia on that day.
Section 14(3A) of the Social Security (Administration) Act1999 (Cth) (the Administration Act) outlines what is commonly referred to as the 13-week rule:
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 concession card; and
(aa) the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and
(b) the person is, on the day on which the Department is contacted, qualified for the concession card; and
(d) the person lodges a claim for the concession card 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 concession card on the day on which the Department was contacted.
CONTENTIONS

JXWV and VGHY’s son argued his parents were entitled to the ESP and had been denied it because of incorrect information provided to him by Centrelink at the time of his original enquiry.
JXWV and VGHY’s son reiterated what he outlined in his request for review of 16 September 2021, and argued passionately that the system had failed his parents:
Services Australia should honour the payment regardless of card start date because of misinformation they provided
It is not the fault of the applicant that Services Australia didn't know all the rules and guidelines regarding the first economic support payment. It being a new payment at the time, and the limited knowledge and training Services Australia had and provided to their staff regarding this payment is not a reason to shift blame on to the applicant for being misled by Services Australia
It is simply unjust and unfair to place blame upon the applicant for allowing themselves to be misled in believing incorrect information provided by Services Australia. It is the job of Services Australia to have the correct information, be honest, and not try to cover their tracks in shifting blame for their mistakes
Proof of phone contact (16 March 2020) (phone record) was provided as requested; Services Australia should accept this as their records can’t be located. This phone record proves that the applicant enquired about the payment well within the qualifying time frame (12 March 2020-13 April 2020) to the appropriate department within Services Australia (132 300 seniors line) (call duration 65 minutes)
The Respondent submitted that the Tribunal should dismiss JXWV and VGHY’s applications for review as they have no reasonable prospects of success as:
(a)In order to be eligible for the first ESP, during 12 March 2020 to 13 April 2020, JXWV and VGHY must have either:
(i)Been in receipt of a relevant social security or family assistance payment; or
(ii)Made a claim for CHSC on or before that period, and qualified for a CSHC; or
(iii)Qualified for a pensioner concession card.
(b)There is no evidence to show that during 12 March 2020 to 13 April 2020 JXWV and VGHY:
(i)Were in receipt of any social security or family assistance payments; or
(ii)Made a claim for CSHC on or before that period and were qualified for CSHC. They applied for and were granted CSHC on 30 June 2020, well after the relevant period for the first ESP; or
(iii)Were qualified for pensioner concession cards as no social security pension was payable to them, nor had they made a claim for a pension.
(c)There is no power or discretion to disregard the qualification requirements under the social security or family assistance legislation. As such, there is no mechanism to grant JXWV and VGHY the first ESP from 12 March 2020 to 13 April 2020.
(d)JXWV and VGHY’s claim for CSHC’s cannot be backdated to when their son contacted the Agency on 16 March 2020 pursuant to subsection 14(3A) of the Administration Act, as JXWV and VGHY CSHC claim was lodged more than 13 weeks after their son contacted the Agency.
(e)There is no power or discretion to disregard the time limit of 13 weeks under the Administration Act. As such, there is no mechanism to backdate JXWV and VGHY’s CHSC claim to fall within the relevant period for the first ESP.
CONSIDERATION
In the first instance, the Tribunal determined that JXWV and VGHY were not eligible to receive the first 2020 ESP payment. The Tribunal found at the time they applied for the payment, they were not in receipt of a relevant social security or family assistance payment, nor had they made a claim for a CSHC during 12 March 2020 to 13 April 2020, nor were they qualified for a pensioner card.
The Act provides no provision for the Tribunal to consider special circumstances nor any discretion to award the payment to JXWV and VGHY on any basis.
On this basis the Tribunal dismissed JXWV and VGHY’s application in accordance with section 42B(1)(b) of the AAT Act, being satisfied that they had no reasonable prospects of success
Additionally, the Tribunal found JXWV and VGHY’s claim for a CSHC could not be backdated to 16 March 2020, the date JXWV and VGHY’s phone records indicated they called Centrelink, as the 13-week rule applied. Subsection 14(3A) of the Administration Act provides a claim for a concession card, such as the CSHC, can be backdated to the date of the original contact if a claim is lodged with 13 weeks of the initial contact. As JXWV and VGHY’s claim for the CSHC was not received until 30 June 2020, this was outside the 13-week period and pursuant to the Administration Act, the Tribunal has no discretion to backdate JXWV and VGHY’s claim for CSHC to the date of initial contact.
Therefore, pursuant to the 13-week rule, the Tribunal also found that JXWV and VGHY’s application had no reasonable prospects of success
The Tribunal does not have the power to consider the administrative action which JXWV and VGHY’s son claims led to his parents missing out on a payment he considers they would have otherwise been entitled. JXWV and VGHY’s son’s claim of defective administrative action has already been considered by the CDDA, which determined that no defective action led to the denial of his parents’ claim for the first ESP.
The Tribunal notes that at no stage were JXWV and VGHY prevented from testing their eligibility for any form of social security payment or concession card. The Tribunal notes that JXWV and VGHY were both of pension age before the introduction of the ESP payment, met the residential requirements, and according to their claim for CSHC’s, had a combined income of $8,959.45. This indicates that they meet the fundamentals of the basis of the social security system as articulated in the introduction to the Guide:
Australia has an income support system that is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are used to target the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are directed to those in the community most in need. The tests are kept under review to ensure that they are meeting the requirements of the community for well-targeted income support.
The Tribunal discussed with JXWV and VGHY’s son the economic impact of the Coronavirus pandemic on his parents, which was the basis for the ESP payment, given that they had not previously sought to apply for the CSCH or any other form of social security benefit. JXWV and VGHY’s son indicated that he would not have pursued this matter so vigorously if his parents were not in need. The Tribunal was still at a loss to understand why he had not simply put in an application for CSHC’s for his parents earlier, as there are numerous benefits flowing from holding a CSHC outside of eligibility for the ESP.
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal discussed with JXWV and VGHY’s son his frustration with the whole process. He stated that he had requested the Operational Blueprint 101-20031226 and 101-20031226, as outlined by the CDDA Scheme, be provided to him so he could determine his next course of action. The Tribunal requested the Respondent provide these documents to JXWV and VGHY’s son, so he could continue to pursue other avenues of redress.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.
The Tribunal, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

.........................[sgd]...............................
Associate
Dated: 14 January 2022

Date of hearing: 10 December 2021

Applicants: JXWV and VGHY son

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Stefana Doslo

Services Australian

[2021] AATA 5019

10 December 2021

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Judicial Review

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