Lalic and Secretary, Department of Social Services (Social services second review) - [2022] AATA 49

Lalic and Secretary, Department of Social Services (Social services second review) [2022] AATA 49 (18 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/0475
Re:Jeremy Lalic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:18 January 2022
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – jobseeker payment – start date of applicant’s payment – whether it can be backdated pursuant to relevant determinations and legislative provisions – whether the applicant is a ‘vulnerable’ person with ‘special circumstances’ – relevant law and policy considered – relevant material considered – decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
CASES
Langenberg and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1053
Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176
Sertich and Secretary, Department of Social Services (Social services second review) [2018] AATA 3271
SECONDARY MATERIALS
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)
Social Security (Coronavirus Economic Response – 2020 Measures No 1) Determination 2020 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
18 January 2022

The applicant, Jeremy Lalic, registered his intention to claim Jobseeker Payment (‘JSP’) on 26 March 2020. At that time provisions were in place enabling a claim to be deemed to have been made earlier than the date of lodgement in some circumstances, including that the claim be lodged by 8 May 2020. As Mr Lalic submitted his claim after 8 May 2020, a delegate of the Secretary of the Department of Social Services (‘the Secretary’) determined that he should be paid JSP from the date of lodgement rather than 26 March 2020. Mr Lalic is appealing a decision of the Social Services and Child Support Division of the Tribunal dated 20 January 2021 affirming the delegate’s decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Mr Lalic is a self-employed contractor with his own truck. He manages his business with the assistance of his family. As a result of the COVID-19 pandemic he experienced a significant downturn in his business. He described his circumstances in a phone call to the Department of Social Services (‘the Agency’):
But now this is my situation… I have been self employed, I started my own company one year ago. Are yeah so the company was only running for one year and uh I just own my own truck and I was just like the only person there but I think I’m the director of the company and like the employee and the whole lot just myself, know what I mean?
…
Now … I haven’t had any work, I’ve lost all my work and now since the truck has run out of rego and I’m stone motherless broke … so I don’t know whether or not I should be applying for a Jobseeker or should I, am I supposed to be doing a jobkeeper through my company or that’s what I need to know.
On 26 March 2020 Mr Lalic registered his intention to claim JSP with the Agency. He received a message following the registration confirming he had registered his intent to make a claim. The message stated in part:
You’ve registered your intention to make a claim. We’ll contact you to let you know what the next steps are.
We’re sorry this may take some time due to a high volume of claims.
You only need to register once.
If you’re eligible for a payment, you’ll be back-paid from today.
On 23 April 2020 Mr Lalic received a message from the Agency via his MyGov account which stated in part:
Hello
Thank you for registering your intention to claim a Centrelink payment.
The next step is to find a payment which best suits your needs and then set up your
Centrelink online account. You can read more information from the link, Next steps …
On 4 May 2020 Mr Lalic received a text message from the Agency stating that his intent to claim was going to expire and he needed to lodge his claim by 8 May 2020. That same day Mr Lalic contacted the Agency by telephone regarding the text message. He informed the customer service officer (‘CSO’) he was ‘internet illiterate’ and had difficulty with administrative tasks such as making a claim for benefits.
A transcript of the call is before the Tribunal. It records that Mr Lalic told the customer service officer (‘CSO’) about the content of the text message he had received that day. The CSO told Mr Lalic that in order to submit a claim he needed a ‘linking code’. However, the linking code could not be generated at that time owing to a system error. The CSO is recorded as having told Mr Lalic:
Okay, I’ve tried a couple of times, our computer system is not basically generating a linking code at the moment. Now what I will do, cause I know you’ve had problems getting through to us, I will keep checking it throughout the day to see when it’s fixed and then generate your linking code and I will phone you back okay to give you your linking code sometime today, alright.
Later that same morning at 10:55am the CSO called Mr Lalic back and left a message for him to return the call.
The next record of the Agency being contacted by Mr Lloyd is on 13 May 2020 when he was provided with the linking code generated on 4 May 2020. He also lodged a claim for JSP on that date. The claim was granted and he received JSP from that date.
ISSUE TO BE DETERMINED
The issue to be determined is the correct start date from which Mr Lalic should be paid JSP.
LEGISLATION
The relevant law is to be found in:
·the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’);
·the Social Security (Coronavirus Economic Response — 2020 Measures No 1) Determination 2020 (Cth) (‘the Coronavirus Determination’); and
·the Social Security (Administration) (Class of Persons — Intent to Claim) Determination 2018 (Cth) (‘the Claim Determination’).
Schedule 2 of the Administration Act provides the general rule that a social security payment commences on the date of claim if the person was qualified for the payment on that date:
3 Start day—general rule
(1) 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.
Note: Clause 4A applies instead of this subclause to claims for jobseeker payment and youth allowance in certain circumstances.
Section 14A of the Administration Act provides that the Minister may determine a class of person whose claim for a social security payment may be deemed to have been made earlier than when the claim was lodged.
The Coronavirus Determination was applied to any person who contacted the Agency between 23 March 2020 and 29 March 2020 and who completed a valid claim by 8 May 2020. The practical effect of the Coronavirus Determination was that a person who contacted the Agency during that period was deemed to have made a claim for a benefit from the day they contacted the Agency. Provided the person qualified for the benefit at that time, the benefit would be backdated to the date of contact provided the claim was lodged by 8 May 2020. Subsection 13(3C) of the Administration Act, as modified by the Coronavirus Determination when it was in force, provided as follows:
(3C) 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 social security payment on a particular day (the contact day); and
(b) the contact day occurs during the period starting on 23 March 2020 and ending on 29 March 2020; and
(c) the person:
(i) is, on the contact day, qualified for the social security payment; or
(ii) becomes, on a later day, qualified for the social security payment; and
(d) the person lodges a claim for the social security payment no later than 8 May 2020;
the person is taken to have made a claim for the social security payment:
(e) if the person was qualified for the payment on the contact day—on 23 March 2020; or
(f) if the person was qualified for the payment on a later day—on the later day.
The Claim Determination which applied outside of the Coronavirus Determination is set out in subsection 13(3A) of the Administration Act. It provides that a person may be deemed to have made a claim on the day they contacted the Agency should they have qualified for the benefit and be in a class of persons specified in the Claim Determination:
(3A) 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 social security payment; 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 social security payment; and
(d) the person lodges a claim for the social security payment 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 social security payment on the day on which the Department was contacted.
The classes of person specified in the Claim Determination are set out in paragraph 5 as follows (emphasis added):
For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) and 14(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:
a)subject to domestic or family violence;
b)homeless;
c)hospitalised or suffering from a temporary incapacity arising from a medical condition;
d)released from prison or psychiatric confinement;
e)experiencing high stress associated with a relationship separation;
f)a parent of a dependent child born during the relevant period;
g)affected by the death during the relevant period of an immediate family member;
h)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;
i)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;
j)a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or
k)subject to other special circumstances beyond the person’s control.
The Claim Determination defines ‘contact day’ to be the day on which the Department is contacted by or on behalf of a person in relation to a claim for a social security payment or concession card; and ‘relevant period’ means the period of 8 weeks ending on the contact day.
EVIDENCE
Mr Lalic contends that having registered his intention to claim on 26 March 2020 he should be paid JSP from that date. He submits he was instructed by the Agency via text message that he would have to wait on account of the high volume of claims, and he did so. The Agency, he claims, first contacted him on 4 May 2020 via text message and he called the Agency immediately that same day.
Mr Lalic stated he is not technology literate and would prefer to deal with people over the phone as he needs others to help him with email and text messages. Though he has the MyGov application on his mobile phone, he required assistance to set up the application. As such, when speaking to the CSO on 4 May 2020, claims to have told her that he would need to complete the application over the phone. He contends he was told by the CSO that she was unable to do that.
The transcript of the conversation to which Mr Lalic refers records that the CSO was unable to generate a linking code due to a system error. The CSO informed Mr Lalic that when she is able to generate the linking code she will call him back. The CSO confirms Mr Lalic’s mobile phone number and the following exchange occurs between Mr Lalic and the CSO:
Customer: If um for some miraculous reason you don’t get through to me, I’ll just try and phone another day
Service Officer: Yep that’s right
Customer: And it’s noted that I have contacted you regarding this though
Service Officer: Yep, that’s right, so now does your phone have like a message bank that actually says your name on it?
Customer: Um, no
Service Officer: Okay, cause I can’t legally leave a message but if you don’t answer, all I can say is to please call Services Australia back okay, so if you get that message, that means
the linking code has worked and you can phone up and someone will be able to
give it to you okay
Customer: Okay, thank you very much, I really appreciate your help
Service Officer: That’s alright, you’re welcome. Thanks very much for your call Jeremy okay, and we’ll get this sorted out and get you registered soon okay
At 10:55am that day , the CSO called Mr Lalic and the call was diverted to voicemail. The CSO left a message that she was ‘calling from Services Australia, can you please call us back on [number]’.
Mr Lalic did not call the Agency back. He told the Tribunal:
Well, what I am saying is that she quite possibly might have tried to call me back, but I missed the call, and I didn’t receive any message. So, I was continuing to wait for her until the thirteenth when I decided to call back. But I was under the impression that because I contacted her on the fourth [of May], everything was going to be fine. That’s what I'm saying.
All right?‑‑‑And it's all---none of this stuff changes the fact that I was, my intention to claim date was 26/3. And that’s all I've been saying the whole time. You know, and the only reason that I wasn’t registered in time was because of them, not my fault. I contacted immediately. I done everything in my power. I done everything right. And now I've been going on phone calls around the world for 12 months nearly now on this.
Based on the evidence I make the following relevant findings of fact:
·Mr Lalic first registered his intention to claim JSP on 26 March 2020;
·Mr Lalic contacted the Agency on 4 May 2020 regarding his JSP claim;
·a CSO called Mr Lalic to provide the linking code consistent with the commitment she made earlier on 4 May 2020 and left a message for Mr Lalic to call back;
·Mr Lalic did not return the CSO’s call and next contacted the Agency on 13 May 2020
CONSIDERATION
The Coronavirus Determination applied from 23 March 2020 through to 29 March 2020. The effect of the Coronavirus Determination is that if Mr Lalic had lodged his claim by 8 May 2020, his payments would have been backdated to 23 March 2020, when he first contacted the Agency.
However, the Coronavirus Determination required claims to be lodged no later than 8 May 2020. Having found that Mr Lalic did not lodge his claim until 13 May 2020, the backdating provisions in the Coronavirus Determination do not apply to his application.
However, subsection 13(3A) similarly allows for a claim to be deemed to have been made on the day the Department is contacted by or on behalf of a person in relation to a claim for a social security benefit. Unlike the Coronavirus Determination, the Claim Determination only applies to applicants who are deemed to be in a class of persons determined to be a ‘vulnerable person’.
Was Mr Lalic a vulnerable person subject to special circumstances beyond his control?
Mr Lalic contends he was unable to lodge a claim on the contact day and is a vulnerable person by way of his limited technology skills and Post Traumatic Stress Disorder. He submits that he should be deemed to have made a claim for JSP on 26 March 2020 on account of being ‘subject to other circumstances beyond [his] control’ in accordance with paragraph 5(k) of the Claim Determination.
The Secretary contends that Mr Lalic is not computer illiterate and ‘merely requires assistance from time to time to use online processes’. His circumstances, the Secretary submits, are ‘no different to the vicissitudes of life as they affected many Australians who found themselves out of work in the early months of 2020 and decided to lodge a claim with the Agency for income support payments’.
In relation to his computer literacy, Mr Lalic acknowledges that he is able to complete transactions including applying for JSP without assistance over the phone. He also conceded that he could access and use MyGov, albeit with assistance.
When Mr Lalic called the Agency on 13 May he was assisted to complete the application online by the CSO. I take this as an indication he has the requisite skills to complete a social security appolicaiton.
The phrase ‘special circumstances’ is not defined in the legislation, but in Re RosemarieBeadle and Director-General of Social Security [1984] AATA 176 the Tribunal stated that for circumstances to be regarded as special, they needed to be objectively ‘unusual, uncommon or exceptional’.
I accept that Mr Lalic does not find dealing with the Agency straightforward and that he has some difficulties with technology. In Sertich and Secretary, Department of Social Services (Social services second review) [2018] AATA 3271 (‘Sertich’) the Tribunal acknowledged that many of those who deal with the Agency experience difficulties, observing:
There is ample information regarding the difficulties many people have in interacting with the Department, by telephone, online or in person. What that information demonstrates, however, is that such difficulties are (unfortunately) usual and ordinary. They cannot contribute to a special circumstances claim.
In Langenberg and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1053 (‘Langenberg’), the Tribunal considered a matter where the applicant did not lodge a form in time because he did not receive the letter which enclosed the claim form. The applicant did not follow up on the outstanding claim for four weeks after his initial enquiry and could not recall if he had been told that he was required to make his claim within 14 days. The Tribunal found that:
In considering whether Mr Langenberg’s circumstances should be described as special circumstances, the Tribunal needs to consider whether there is something that distinguishes his situation from others in similar circumstances. Australia Post and the local newspaper have indicated that mail did go missing in the local area during the relevant period. There is a plethora of Tribunal cases where potential or existing social security recipients have missed out on entitlements or have been penalised because they either did not receive, or did not read in detail, items of correspondence from Centrelink.
The parallels between this matter and those in Langenberg and Sertich indicate that Mr Lalic’s circumstances are neither exceptional nor uncommon.
In considering the totality of the evidence I am not satisfied that Mr Lalic was a vulnerable person for the purposes of the Claim Determination. To do so would require a finding that Mr Lalic was subject to special circumstances such that it was not reasonably practicable for him to lodge a claim earlier than 13 May 2020. Mr Lalic’s limited technology skills fall short this threshold and did not prevent a successful claim on 13 May 2020.
As such, the deeming provisions in section 13 of the Administration Act cannot be applied to his application for JSP.
CONCLUSION
Having found that neither of the deeming provisions in section 13 of the Administration Act apply, Mr Lalic is eligible to be paid JSP from the date of his application, being 13 May 2020.

The Tribunal is required to make the correct and preferable decision according to law. In this instance the law provides an unsatisfactory outcome for Mr Lalic, who, on every indication, would have been eligible to have JSP paid from the 26 March 2020 should he have lodged his application on or before 8 May 2020. I acknowledge that it is particularly disappointing given his circumstances.
DECISION
For the reasons stated above the decision under review will be affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 18 January 2022

Date(s) of hearing: 7 October 2021

Applicant: Self-Represented

Solicitor for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers

Date(s) of hearing:	7 October 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers