Kotevski and Secretary, Department of Employment (Social services second review) - [2017] AATA 24

Kotevski and Secretary, Department of Employment (Social services second review) [2017] AATA 24 (13 January 2017)
Division:GENERAL DIVISION
File Number(s): 2015/6078
Re:Aleksandra Stoyna Kotevski
APPLICANT

AndSecretary, Department of Employment
RESPONDENT

DECISION
Tribunal:Dr Teresa Nicoletti, Senior Member
Date:13 January 2017
Place:Sydney

The decision under review is affirmed.
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Dr Teresa Nicoletti, Senior Member
CATCHWORDS
SOCIAL SECURITY - youth allowance - whether youth allowance can be granted from the date of the original claim - applicant failed to lodge documents on time for original decision - whether applicant lodged request for review of decision within 13 weeks - decision affirmed
LEGISLATION
Social Security (Administration Act) 1999 (Cth) ss 11, 16, 36(1), 37, 107, 129(1)
Social Security Act 1991 (Cth
REASONS FOR DECISION
Dr Teresa Nicoletti, Senior Member
12 January 2017

On 7 November 2014, Ms Aleksandra Stoyna Kotevski (Ms Kotevski) submitted a claim for Youth Allowance through the Department of Human Services’ (Centrelink’s) online portal.
On 27 November 2014, Centrelink rejected Ms Kotevski’s claim.
On 26 March 2015, Ms Kotevski contacted Centrelink to discuss her claim and then lodged a second claim on the same day.
On 6 May 2015, Ms Kotevski’s claim for Youth Allowance was granted on the basis of her second claim, with an effective date of 26 March 2015.
On 29 May 2015, Ms Kotevski requested a review of the decision by Centrelink to reject her original claim of 7 November 2014.
On 3 July 2015, an Authorised Review Officer (ARO) affirmed the decision to grant Ms Kotevski’s Youth Allowance from 26 March 2015, on the basis that she had not requested a review of Centrelink’s decision within 13 weeks of the decision made on 27 November 2014.
On 11 August 2015, Ms Kotevski requested a review of the ARO’s decision by the Administrative Appeals Tribunal (AAT1).
On 23 October 2015, AAT1 determined that the legislation did not allow for Youth Allowance to be granted to Ms Kotevski from a date earlier than 26 March 2015 and affirmed the decision of the ARO.
On 23 November 2015, Ms Kotevski applied to this Tribunal for a review of the AAT1 decision.
ISSUE
The issue to be determined by this Tribunal is whether Ms Kotevski is entitled to receive Youth Allowance from 7 November 2014, the date she lodged her original claim.
LEGISLATION
The Social Security (Administration) Act 1999 (Act) is the relevant legislation applying to the determination of claims for social security payments available under the provisions of the Social Security Act 1991, including Youth Allowance.
Section 11 of the Act prescribes a general rule for the making of claims for social security payments:
(1) Subject to subsection (2) to (4) and Subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
(2) Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part.
Section 16 of the Act prescribes the process by which a claim may be made:
(1) A person makes a claim for a social s ecurity 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.
(3) Two or more written claims by the same person may, subject to subsection (3A), be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(3A) A claim by a person for low income supplement for an income year must not be combined with any other claim.
(4) A written claim is lodged by being delivered:
(a)to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b)to a person approved for the purpose by the Secretary; or
(c)in a manner, and to a place, approved for the purpose by the Secretary.
(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of:
(a)claims made under a scheduled international social security agreement; or
(b)claims for AGDRP in relation to a major disaster that occurred outside Australia; or
(c)claims for AVTOP.
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.
A claim for Youth Allowance must be determined in accordance with subsection 36(1) and section 37 of the Act:
36 Obligation of Secretary to determine claim
(1) Subject to this section, the Secretary must, in accordance with the social security law, determine a claim for a social security payment or a concession card, either granting or rejecting the claim.
37 Grant of claim
(1) Subject to this section and section 40, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable.
……….
(3) The Secretary must determine that a claim for a social security payment to which this subsection applies is to be granted if the Secretary is satisfied that:
(a)the person is qualified, or is expected to be qualified, for the payment; and
(b)the payment would be payable if the person were not subject to a seasonal work preclusion period.
(4) Subsection (3) applies to the following social security payments:
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(g)Youth Allowance;
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(ga) special benefit;
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(6) The Secretary must determine that a claim for Youth Allowance or austudy payment is to be granted if the Secretary is satisfied that:
(a)the person is qualified, or is expected to be qualified, for the allowance or payment; and
(b)the allowance or payment would be payable, apart from:
(i)     the application of a waiting period; or
(ii)    the application of a compliance penalty period; or
(v)    the application of an income maintenance period where the rate of allowance or payment payable to the person is nil; or
(vi)    if the claim is a claim for Youth Allowance--the operation of section 547AA of the 1991 Act.
………….
An application for review of a decision can be made by an aggrieved person pursuant to subsection 129(1) of the Act:
(1) Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.
Note, subsections (3) and (4) do not apply in respect of this decision.
Section 107 of the Act prescribes the general rule to be applied in relation to the day on which a determination under section 37 of the Act is made in respect to an original decision, or under subsection 129(1) of the Act in relation to a decision on review takes effect:
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a)a decision (the original decision ) is made rejecting a person's claim for a social security payment or a concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a)a decision (the original decision ) is made rejecting a person's claim for a social security payment or concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
(e)the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.
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CONSIDERATION
It is established that Ms Kotevski lodged a claim for Youth Allowance on 7 November 2014 in accordance with the requirements in sections 11 and 16 of the Act.
On 13 November, 2014, an SMS message notification was sent to Ms Kotevski’s mobile telephone by Centrelink, which stated: “You made a Centrelink Online Claim on 07/11/14. Please return the requested documents ASAP if you have not already done so. Do not reply by SMS”
On 27 November 2014, Centrelink rejected Ms Kotevski’s claim pursuant to section 36 of the Act because she had not provided the required information to support her claim.
Subsequently, a letter was sent to Ms Kotevski on 27 November 2014 from Centrelink, advising her that her claim for Youth Allowance had been rejected because she had not provided certain information required to support her claim. Ms Kotevski acknowledges that she received this letter from Centrelink and was aware of the decision to reject her claim. Mr Boris Kotevski, Ms Kotevski’s father, also spoke with a Centrelink officer about the matter on 27 November 2014 and was advised at that time of the decision to reject Ms Kotevski’s claim.
AAT1 was satisfied that the available evidence establishes that, on 27 November 2014, Ms Kotevski had notice that her claim for Youth Allowance of 7 November 2014 was rejected. However, Ms Kotevski did not contact Centrelink again until 26 March 2015 to make any follow-up enquiries in relation to her Youth Allowance, and it was on this date that Ms Kotevski lodged her second claim for Youth Allowance.
Ms Kotevski stated during the AAT1 hearing and before this Tribunal that she had not contacted Centrelink prior to 26 March 2015 because she was waiting for tax information relating to her father, and that she contacted Centrelink as soon as she had received it. When Mr Kotevski contacted Centrelink on 27 November 2014, he was advised that the required information would need to be provided to Centrelink within 13 weeks of the date the decision to reject Ms Kotevski’s claim was made. However, Ms Kotevski claims that she did not contact Centrelink before 26 March 2015 because it took her longer than expected to obtain the required information.
Notwithstanding the contact on 26 March 2015, it was not until 29 May 2015 that Ms Kotevski actually requested a review of the 27 November 2014 decision to reject her claim. However, AAT1 determined that the nature of Ms Kotevski’s Centrelink enquiry on 26 March 2015 ought to be regarded as a request for review of the decision to reject her 7 November 2014 claim because the enquiry on that day specifically concerned that claim.
I do not agree that Ms Kotevski’s enquiry on 26 March 2015 about her claim, or the lodgement of her second claim on that date, should be regarded as the date that review of the 27 November 2014 decision to reject her 7 November 2014 claim was requested. The evidence indicates that it was not until 26 March 2015 that Ms Kotevski lodged a valid claim which included all of the required information to support the grant of her Youth Allowance. I cannot see any evidence that Ms Kotevski requested a review of the 27 November 2014 decision on that date, but rather that this is the date that Ms Kotevski lodged all of the required information for her Youth Allowance. The request for review of the 27 November 2014 decision appears to have been made separately on 29 May 2015. In any event, as discussed below, it would make no difference to my decision if I regarded the correct date for Ms Kotevski’s request for review as 26 March 2015 instead of 29 May 2015.
The relevant provision of the legislation is section 107 of the Act, which provides that in order for a decision upon review to apply from the date the original claim would have taken effect, the person seeking the review must lodge their request for review within 13 weeks of being given notice of the decision. If a request for review is lodged more than 13 weeks after notice of the decision has been received, then the decision upon review will only be effective from the date the review was requested.
The effect of section 107 of the Act is that in order for Ms Kotevski’s Youth Allowance to be paid from 7 November 2014 in the event that the decision of 27 November 2014 to reject her Youth Allowance was overturned, Ms Kotevski would have had to have requested a review of that decision within 13 weeks of being given notice of the decision.
As stated above, following the 27 November 2014 decision, the earliest contact that Ms Kotevski had with Centrelink was on 26 March 2015. Regardless of whether or not I accept that this contact ought to be regarded as a request by Ms Kotevski for review of the 27 November 2014 decision, the fact remains that this contact was made more than 13 weeks (exactly 17 weeks) after notice of the decision. Accordingly, pursuant to subsection 107(3) of the Act, the earliest date that a decision to grant Ms Kotevski’s Youth Allowance can be given effect is 29 May 2015, the date upon which she requested a review. However, given that Ms Kotevski lodged her second claim on 26 March 2015, and her Youth Allowance was granted from that date, this is deemed to be the date from which the decision upon review takes effect.
There is no basis for me in law to make a different decision in this matter. Ms Kotevski’s original claim of 7 November 2014 was defective because she did not provide all of the information required for the grant of her Youth Allowance. On that basis, on 27 November 2014, Centrelink made the decision to reject Ms Kotevski’s claim for Youth Allowance. In order for Ms Kotevski to have had the benefit of the payment of her Youth Allowance from 7 November 2014, she was required to lodge a request for review within 13 weeks of 27 November 2014, i.e. she was required to lodge a request for review by 26 February 2015. She did not do that. Instead, she lodged a second claim for Youth Allowance on 26 March 2015, which was granted on 6 May 2015 with effect from 26 March 2015.
Ms Kotevski subsequently lodged a request for review of the 27 November 2014 decision on 29 May 2015, which was affirmed by an ARO on 3 July 2015. The legislation mandates that this decision is effective from the date the review was requested, i.e. from 29 May 2015. However, given that Ms Kotevski had already been granted Youth Allowance with effect from 26 March 2015, the date that she lodged her second claim, her Youth Allowance remained effective from this date. The Act does not provide me with any discretion to grant Youth Allowance to Ms Kotevski on any date prior to this date.
On this basis, it is my view that the decision to grant Ms Kotevski’s Youth Allowance with effect from 26 March 2015 is correct.
DECISION
The decision under review is affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr Teresa Nicoletti, Senior Member

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Associate
Dated: 13 January 2017

Date of hearing: 30 June 2016

Advocate for the Applicant: Mr B Kotevski

Solicitors for the Respondent: Department of Human Services

Date of hearing:	30 June 2016
Advocate for the Applicant:	Mr B Kotevski
Solicitors for the Respondent:	Department of Human Services