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

[2019] AATA 4770

Kalnins and Secretary, Department of Social Services (Social services second review) [2019] AATA 4770 (15 November 2019)

Division:GENERAL DIVISION

File Number(s):    2019/2601

Re:Wally Kalnins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:15 November 2019

Place:Canberra

The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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Member W Frost

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – age pension – eligibility for age pension - start date for age pension payments – whether the applicant completed an online claim form – where the applicant did not submit a claim form – decision under review affirmed

Legislation

Administrative Appeal Tribunal Act 1975 s 43
Social Security Act 1991 s 23, 43
Social Security (Administration) Act 1999 s 11
Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009

Cases

Callaghan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 506

Drainichnikov v Centrelink (2003) FCAFC 133

Shaver v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 304

Secondary Materials

The Social Security Guide version 1.259

REASONS FOR DECISION

Member W Frost

15 November 2019

INTRODUCTION

1. The Applicant, Mr Wally Kalnins, has received the Age Pension since 16 August 2018, when the Department of Human Services (Department) says his only completed claim was made for that social security payment, by lodging a paper form at a Centrelink office.

2. However, Mr Kalnins asserts that on 7 April 2018, more than four months earlier, he completed an online claim for the Age Pension, and should have received payment from that date. The Respondent, the Secretary of the Department of Social Services, acknowledges that an online claim for the Age Pension was started by Mr Kalnins on 5 April 2018 and updated two days later, but asserts that it was not submitted and subsequently expired.

3. Mr Kalnins sought review by the General Division of the Administrative Appeals Tribunal of a decision of the Social Services and Child Support Division of the Tribunal (AAT1), affirming the Department’s decision to grant the Age Pension from 16 August 2018, and not from an earlier date.

4. The Tribunal has considered all of the documents in the two bundles of documents lodged on 11 June and 11 July 2019, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (being Exhibits 1 and 2, respectively). The submissions made by the parties have also been considered, including the following written documents lodged by Mr Kalnins:

   (a)Document entitled ‘WK Rebuttal of AAT Prior Decisions for Hearing #2’ dated 29 October 2019 (Exhibit A1);

   (b)Document entitled ‘WK AAT CL Age Pension Review Outcome Rebuttal’ dated 20 February 2019 (Exhibit A2); and

   (c)Document entitled ‘WK Centrelink Problems Diary of Events 2019-02-20’ started 17 August 2018 (Exhibit A3).

   ISSUE

5. The issue before the Tribunal is whether Mr Kalnins can be paid the Age Pension from a date earlier than 16 August 2018.

   BACKGROUND

6. Mr Kalnins was born on 10 November 1952. He is 67 years old and resides in Numeralla in New South Wales (NSW) with his sister who, the Tribunal was informed, is seriously ill with multiple medical conditions including kidney disease requiring dialysis. As a result, Mr Kalnins has for some years cared for his sister.

7. On 5 April 2018, Mr Kalnins said he attended a Centrelink office in Cooma, NSW and requested a paper claim form to apply for the Age Pension. Mr Kalnins was apparently informed that a paper form was unavailable and he was directed to commence an online claim. On the same day, the Manager of the Centrelink office in Cooma sent Mr Kalnins a letter (Exhibit 1, T4, page 19) noting that it had been contacted about his eligibility for a payment and stating that:

   To make sure that you receive your payment from the earliest date possible, you must complete your claim or Customer Declaration Form and return it with any requested documentation. If there is any reason why you cannot do this, please contact us immediately.

8. On 7 April 2018, Mr Kalnins uploaded to his online claim for the Age Pension two bank statements setting out his financial circumstances (Exhibit 1, T5, pages 21-23). Mr Kalnins contended that he completed and lodged his claim on this date, however the Department’s records indicate that it was not completed or submitted and subsequently expired (Exhibit 2, ST2, page 6).

9. On 10 May 2018, Mr Kalnins reached the age of 65 years and 6 months, being his ‘pension age’ to qualify for the Age Pension.

10. On 16 August 2018, Mr Kalnins attended Centrelink and lodged a completed paper claim for the Age Pension (Exhibit 1, T6, pages 24-38; T11, page 77). The Department granted Mr Kalnins the Age Pension with effect from this date (Exhibit 1, T7, page 39), but he sought review of the decision not to make it payable from April 2018.  

11. On 13 November 2018, an authorised review officer from the Department affirmed the decision to grant Mr Kalnins the Age Pension from 16 August 2018 and not from an earlier date (Exhibit 1, T8, page 59-64).

12. On 5 February 2019, Mr Kalnins applied for review by the AAT1 (Exhibit 1, T9, page 65) and, on 12 April 2019, it affirmed the decision to grant Mr Kalnins the Age Pension from 16 August 2018 (Exhibit 1, T2, pages 4-6). On 12 May 2019, Mr Kalnins applied for review of the AAT1 decision by the General Division of the Tribunal.

    LEGISLATION & POLICY

13. Subsection 43(1) of the Social Security Act 1991 (Social Security Act) states that a person ‘is qualified for an age pension if the person has reached pension age’.

14. Subsection 23(5A) of the Social Security Act sets out that the ‘pension age’ for a man born between 1 July 1952 and 31 December 1953 is ‘65 years and 6 months’. The relevant legislative amendment increasing the qualifying age for the Age Pension from 65 years for this particular cohort was made by the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009, and it commenced on 29 June 2009.[1]

    [1] Section 2 and Schedule 11 of the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009.

15. Subsection 11(1) of the Social Security (Administration) Act 1999 (Administration Act) states that a person who wants to be granted a social security payment ‘must make a claim for the payment’. In this regard, section 16 of the Administration Act provides that a person ‘makes a claim’ for a social security payment ‘by lodging a written claim for the payment’, which ‘must be in accordance with a form approved by the Secretary’.

16. The Social Security Guide (Guide) at Instruction 8.1.1.20 notes that a claim for a payment must be: in writing (including by electronic means); in an approved form; completed; signed by the claimant; and lodged in a manner approved by the Secretary (including electronically, in person or by mail). The Guide also notes that a claim is made ‘once it has been lodged’. 

17. Subsection 41(1) of the Administration Act states that a social security payment becomes payable to a person on the person’s ‘start day’ in relation to that payment. Importantly for the purpose of this decision, clause 3(1) of Schedule 2 of the Administration Act sets out the general rule for the ‘start day’ for a social security payment as follows:

    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.

18. Clause 4(1) of Schedule 2 of the Administration Act sets out how to determine the ‘start day’ where a person has made an early claim for a social security payment as follows:

    If:

    (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)  the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

19. A claim for a social security payment can also be deemed to have been made in certain circumstances set out in section 13 of the Administration Act. Subsections 13(3) and 13(3A) relevantly provide that a claimant is taken to have made a claim for a payment on the day on which the Department was contacted by the claimant if they lodge a claim more than fourteen days, but not more than thirteen weeks, after that initial contact and the Respondent is satisfied that throughout the period the claimant was either caring for another person and the medical condition from which that person suffered had a ‘significant adverse effect on the claimant’s ability to lodge the claim earlier’ or, separately, ‘in the special circumstances of the case’, it was not reasonably practicable for the person to lodge the claim earlier.

    CONTENTIONS

    Applicant’s contentions

20. Mr Kalnins told the Tribunal that he was informed by a member of Centrelink in April 2018 that he was eligible for the Age Pension on 10 April 2018 when, Centrelink told him, he reached the applicable ‘pension age’ of 65 years and 6 months. Mr Kalnins in fact did not reach that age until 10 May 2018.

21. Mr Kalnins took issue with the submissions contained under the heading ‘Facts’ in the Respondent’s Statement of Issues, Facts and Contentions dated 26 August 2019, which he asserted were ‘fabrications, fictions, and lies’. Specifically, Mr Kalnins disagreed with the Respondent’s statement that he had on 5 April 2018: ‘started a claim for Age Pension, using the Centrelink online system. However, this claim was not submitted and subsequently expired’. Mr Kalnins said that on 5 April 2018, he attended a Centrelink office and requested a paper application for the Age Pension, which he wanted to take away and lodge at a later time. Mr Kalnins was not in a position to start or substantially complete his application on that day. However, Mr Kalnins contended that he was informed by Centrelink a paper claim for the Age Pension did not exist and it could not print a hard copy of that document for him to complete, but he was required to commence and complete such an application online. Mr Kalnins said he was directed to start an online application that day at the Centrelink office, which he begrudgingly did despite not being ready to do so. As a result, Mr Kalnins said that Centrelink denied him the opportunity to make a paper claim and therefore retain a copy of that document, which denied him the ability to prove that he had so applied in April 2018. This, Mr Kalnins submitted, ‘opened up a Pandora’s box of tampering with computer data, losing records, saying I didn’t do this or I didn’t do that’. 

22. Mr Kalnins said that, against his better judgment, he completed the online Age Pension form. This, he asserted, was done two days later on 7 April 2018, following the uploading of two bank statements to demonstrate his financial circumstances, which was an outstanding requirement from when he says he had otherwise completed the online claim on 5 April 2018. 

23. Mr Kalnins asserted that four screenshots he had taken of his online claim on 5 and 7 April 2018 demonstrated that he had made a claim for the Age Pension at that time.[2] He said that, as at 5 April 2018, he had answered all of the required questions, with the only outstanding task being the provision of information regarding his financial situation. Mr Kalnins uploaded the bank statements at 3.43pm on 7 April 2018 and, he maintained, subsequently lodged the completed claim. The last screenshot from 3.54pm on 7 April 2018 showed the successful upload of the bank statements. However, there was no screenshot of Mr Kalnins’ claim having been successfully submitted, for example a receipt or confirmation number, but Mr Kalnins said this was because there was no such information on the online claim, he ‘gave up’ making screenshots because it was ‘atrocious’, a ‘waste of time’ and deliberately designed to be difficult and his claim was then ‘lost in the system’.

    [2] Screenshots from Exhibit A2, being a document lodged with the Tribunal by Mr Kalnins entitled ‘WK AAT CL Age Pension Review Outcome Rebuttal’. 

24. Mr Kalnins said he waited for months but did not receive any communication from Centrelink following his lodgement of the Age Pension claim on 7 April 2018. In August 2018, Mr Kalnins attended a Centrelink office and requested a copy of his completed application from April 2018, but was informed this was not possible. Mr Kalnins said all of the questions he had completed against his will online in April 2018 ‘evaporated into thin air’ and his claim from that time was ‘lost, altered or destroyed’.

25. In this regard, Mr Kalnins made many allegations in his oral and written submissions, against both Centrelink and the Government, of unethical, illegal and corrupt conduct, including in relation to his claims commencing in 2016 for various social security payments. For completeness, the Tribunal notes that there was no reviewable decision before it in relation to any other social security payment except the Age Pension, the subject of this decision. Most relevantly, Mr Kalnins submitted that Centrelink owed him tens of thousands of dollars in social security payments and he and, incidentally, his sister had been subject to ‘deliberate, pre-designed torture’. Mr Kalnins said that Centrelink had delayed him getting the Age Pension because it did not allow him to use a paper claim form when he requested one in April 2018 and this inability to complete a paper-based application led to the loss, destruction or tampering of his online claim and the requirement to complete a further claim for the Age Pension more than four months later in August 2018.

26. Mr Kalnins said he has worked hard when he can all of his life and felt vilified and denigrated by being denied the Age Pension from April 2018. In this regard, Mr Kalnins asked rhetorically, ‘why on earth would I not complete the application form online and submit it?’ in April 2018; he ‘desperately’ needed the money provided by the Age Pension, including continuing caring for his sister.   

27. Mr Kalnins said that in August 2018 when he again requested a paper claim for the Age Pension on his attendance at a Centrelink office, only then was one provided for him to complete, rather than being required to complete an online claim.

    Respondent’s contentions

28. The Respondent submitted that the Tribunal was bound by the relevant legislation regarding eligibility for payment of the Age Pension and, in that regard; the Administration Act specifically sets out when a claim is taken to have been made by a claimant for a social security payment.

29. The Respondent acknowledged that Mr Kalnins started an online claim for the Age Pension on 5 April 2018 and uploaded a document to that claim on 7 April 2018, but maintained that this claim was not completed or lodged by Mr Kalnins and subsequently expired (ST2, page 6).

30. In relation to the screenshots taken by Mr Kalnins of his April 2018 online claim,[3] the Respondent said there were four steps in an online claim, the third being ‘Tell us about your finances’, which, it acknowledged, Mr Kalnins completed. The second of the screenshots from 4.21pm on 5 April 2018 states that ‘If you do not complete the required tasks by 05 July 2018 your claim will expire and you will have to make a new claim’. The fourth screenshot taken by Mr Kalnins notes that he successfully submitted his bank statements at 3.43pm on 7 April 2018. The Respondent submitted that while Mr Kalnins uploaded the bank statements on that date to complete the third step in the online claim for the Age Pension, he did not complete the fourth and final step, which was ‘Review your claim and submit’. Mr Kalnins rejected this assertion. The Respondent said there was no screenshot to demonstrate Mr Kalnins had lodged his claim and the Department’s records evidenced the non-lodgement of the Age Pension claim in April 2018. Mr Kalnins maintained that he did submit the claim form and he was not taking screenshots of every step of the claim, including because it was ‘too tedious’ and ‘complicated’; he ‘hit the submit button’ and was ‘glad to get rid of the whole sick, sad story’ and unplugged his computer due to an impending thunderstorm that he was concerned would result in the loss of his data.

    [3] Screenshots from Exhibit A2, being a document lodged with the Tribunal by Mr Kalnins entitled ‘WK AAT CL Age Pension Review Outcome Rebuttal’. 

31. The Respondent contended that the first time Mr Kalnins made a claim in accordance with the legislative requirements was when he lodged a paper-based claim in person at a Centrelink office on 16 August 2018. Only at this time did Mr Kalnins satisfy the legislative requirements for receipt of the Age Pension.

32. The Respondent also confirmed that Mr Kalnins reached ‘pension age’ pursuant to the Social Security Act on 10 May 2018, when he attained the age of 65 years and 6 months, and not at any earlier date, including in or around early April 2018. Finally, the Respondent contended that applying the legislation to the facts of this matter, Mr Kalnins could not be paid the Age Pension any earlier than 16 August 2018.

    CONSIDERATION

    Can Mr Kalnins be paid the Age Pension from April 2018?

33. Despite Mr Kalnins’ contention that the applicable legislative regime should have no bearing on the outcome of his application, the Tribunal must apply the legislation determined by the Parliament in relation to the Age Pension. The evidence before the Tribunal did not support Mr Kalnins’ contention that he had ‘made a claim’ for the Age Pension on or around 7 April 2018 in accordance with the Administration Act and the Guide. The evidence demonstrated that Mr Kalnins commenced a claim for the Age Pension on 5 April 2018, which he updated on 7 April 2018, but was not submitted and eventually expired.[4] As a result, the Tribunal is not satisfied that Mr Kalnins lodged a completed claim for the Age Pension on or around 7 April 2018.

    [4] Exhibit 2, ST2, page 6 and screenshots from Exhibit A2, being a document lodged with the Tribunal by Mr Kalnins entitled ‘WK AAT CL Age Pension Review Outcome Rebuttal’. 

34. Mr Kalnins had also not qualified for the Age Pension as at 7 April 2018 (or even 10 April 2018 which, he contended, he was told by Centrelink at around that time), because he had not reached the applicable ‘pension age’ of 65 years and 6 months under the Social Security Act. Mr Kalnins was born on 10 November 1952. Under subsection 23(5A) of the Social Security Act, a man born between 1 July 1952 and 31 December 1953 reaches ‘pension age’ at 65 years and 6 months. Mr Kalnins therefore reached the applicable ‘pension age’ on 10 May 2018. Accordingly, Mr Kalnins had not reached ‘pension age’ and was not qualified for the Age Pension when he commenced, and he says completed and lodged, an Age Pension claim in April 2018. Mr Kalnins could therefore not have received the Age Pension from April 2018 regardless of whether or not he lodged a claim for the payment at that time. In this regard, although Mr Kalnins’ submissions suggest that his treatment and the apparent obfuscation by Centrelink in April 2018 delayed him making a claim for the Age Pension, Mr Kalnins could not have received that payment until he reached his ‘pension age’ on 10 May 2018. It follows that Mr Kalnins cannot be paid the Age Pension from April 2018.

    Can Mr Kalnins be paid the Age Pension upon reaching ‘pension age’ on 10 May 2018?

1. The operation of subsection 16(1) of the Administration Act is such that a person is taken to have made a claim for a social security payment when they have lodged ‘a written claim for the payment’. Mr Kalnins did not make a claim for the Age Pension at any time from 10 May 2018, when he reached ‘pension age’ to qualify for that payment, until 16 August 2018.

2. While a person can be deemed to have made a claim if caring or special circumstances (amongst other things) have a ‘significant adverse effect’ or make it ‘not reasonably practicable’ for them to do so earlier, there was no evidence that these were applicable in Mr Kalnins’ situation;[5] he steadfastly maintained that he lodged a claim in April 2018, although the Tribunal cannot be satisfied of this contention given the evidence to the contrary. Accordingly, the Tribunal is not satisfied that Mr Kalnins can either be deemed to have made, or did actually make, an early claim for the Age Pension in April 2018, such that he would be taken to have made the claim on the first day he was qualified for that payment, being 10 May 2018. Mr Kalnins therefore cannot be paid the Age Pension from 10 May 2018.

   [5] Drainichnikov v Centrelink (2003) FCAFC 133; Callaghan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 506 at [32]; Shaver v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 304 at [15].

   Is 16 August 2018 the date from which Mr Kalnins can be paid the Age Pension?

3. Based on the evidence, and the legislative requirements, the Tribunal is satisfied that Mr Kalnins can be paid the Age Pension from 16 August 2018 and not any earlier date.

4. As set out above, the Tribunal has found that Mr Kalnins cannot be paid the Age Pension from either April or May 2018, because it is not satisfied that he made a claim for that social security payment in April 2018, he did not reach ‘pension age’ until 10 May 2018 and he cannot be deemed to have made a claim allowing payment with effect from when he became eligible in May 2018.

5. Importantly for the purpose of this decision, a person can start receiving a social security payment if a claim has been made for that payment and the person is qualified pursuant to clause 3(1) of Schedule 2 of the Administration Act. From the time Mr Kalnins reached ‘pension age’ on 10 May 2018 and qualified for the Age Pension, he did not make a claim for that payment until 16 August 2018. In the circumstances, Mr Kalnins was first eligible to receive the Age Pension on the day he made a claim and was qualified for that social security payment. On the evidence, that day can only be 16 August 2018, when Mr Kalnins both made a claim and was of ‘pension age’.

   CONCLUSION

6. Mr Kalnins is dealing with very difficult personal and financial circumstances, including due to his responsibilities as a carer for his sister. He has received the Age Pension since August 2018. In accordance with the applicable legislative regime, the Tribunal cannot accept Mr Kalnins’ contentions that this social security payment should have been paid from an earlier date in 2018.

7. In summary, the evidence establishes that Mr Kalnins did not make a claim for the Age Pension in April 2018 and he had not qualified for the payment at that time; he also did not lodge a claim from 10 May 2018, when he was qualified upon reaching the applicable ‘pension age’ of 65 years and 6 months, until 16 August 2018. Mr Kalnins’ Age Pension was therefore correctly determined to be payable from 16 August 2018 when he made a claim and had reached ‘pension age’ and not from any earlier date.

   DECISION

8. For the reasons set out above, the Tribunal affirms the AAT1 decision of 12 April 2019 pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 15 November 2019

Date of hearing:	4 November 2019
Date final submissions received:	29 October 2019
Mr Kalnins:	By telephone
Solicitor for Respondent:	Ms Sarah Dinkha, Department of Human Services