Langenberg and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1053
•9 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1053
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° V2006/1018
GENERAL ADMINISTRATIVE DIVISION ) Re ARIE LANGENBERG Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Regina Perton, Member Date9 February 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
SOCIAL SECURITY – age pension – start date – backdating of payment - whether backdating possible for more than 14 days from date of claim form - correspondence not received – whether special circumstances - whether earlier lodgement not reasonably practicable - decision affirmed.
Acts Interpretation Act 1901 ss 28A, 29
Social Security Act 1991 s 1237AAD
Social Security (Administration) Act 1999 ss 11(1), 13(1), 13(2), 13(3A), 41, 42 and cl 3 of Schedule 2
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
REASONS FOR DECISION
9 February 2007 Regina Perton 1. Mr Arie Langenberg celebrated his 65th birthday on 17 May 2006. He has been receiving age pension since 27 June 2006. Mr Langenberg first contacted Centrelink seeking age pension on 29 May 2006. Centrelink is the service delivery agent for the respondent. Centrelink sent Mr Langenberg a letter and claim form on 29 May 2006. In the letter, Centrelink informed Mr Langenberg that if he lodged a claim for age pension on or before 12 June 2006, age pension would be paid to him from 29 May 2006. Unfortunately, the letter did not reach Mr Langenberg. He contacted Centrelink again on 27 June 2006 asking about the missing claim form and letter. Centrelink sent him a fresh claim form on that day, which was lodged on 6 July 2006. His age pension payments were backdated to 27 June 2006.
2. Mr Langenberg believes his age pension payments should be backdated to 29 May 2006 as he did not receive the correspondence sent by Centrelink on that day. Mr Langenberg sought review of Centrelink’s decision that it could not backdate the payment (beyond 27 June 2006). An authorised review officer of Centrelink (ARO) affirmed the decision. Mr Langenberg sought review of the decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision that the payment could not be backdated beyond 27 June 2006. On 25 October 2006, Mr Langenberg lodged an application for review of the SSAT decision with the Tribunal.
3. The issue before the Tribunal is whether Mr Langenberg’s age pension payments can be backdated to a date prior to 27 June 2006. The Tribunal has determined that social security legislation does not allow the payment to be further backdated.
EVIDENCE
4. Mr Langenberg provided articles from the Latrobe Valley Express newspaper in October and November 2006, which describe problems encountered by businesses and individuals with delivery of mail in the La Trobe Valley region. These included delays, deliveries to the wrong addressees and failure to receive mail. He also provided a letter dated 14 December 2006 from a Senior Resolutions Consultant of Australia Post, in response to his enquiry about non-delivery of a mail item posted to him by Centrelink on 29 May 2006. Australia Post was unable to provide any specific information about the posted item but conceded that …it is possible that some mail articles may be wrongly sorted, lost, or delayed during transmission.
5. In his oral evidence Mr Langenberg said that he could not lodge the claim form by 12 June 2006 as he had not received the relevant mail item. He said that he could not recall whether the Centrelink telephone operator with whom he spoke on 29 May 2006 had told him that he must lodge the claim form within the next 14 days for the payments to be able to be backdated to 29 May 2006. Mr Langenberg said that he had contacted Centrelink again on 27 June 2006 after his wife asked him whether he had lodged the claim form and he realised that he had not received it. Mr Langenberg said that he did not contact Centrelink until 2 weeks after his 65th birthday as he did not realise that payment was only made from the date of contact and subsequent claim. He had expected age pension payments to be backdated to his 65th birthday.
6. Mr Langenberg said that he has had limited previous contact with Centrelink. His 33 year old son, who is legally blind and suffers from diabetes, receives a non means-tested disability pension. He is registered with Centrelink as his son’s correspondence nominee, but his son receives little mail from Centrelink. Before retirement, Mr Langenberg set up a business venture in the entertainment industry with his son which had not worked out. Mr Langenberg lost a significant portion of his assets as a consequence. He worked in insurance prior to that. Mr Langenberg retired on his 65th birthday. His wife still works, so he receives part age pension.
7. Mr Langenberg said that the nearest Centrelink office to his home in Traralgon is at Morwell. It takes about 12 to 15 minutes to drive there. He said he does not go to Morwell regularly as there is no need to do so. He did not think to drive to the Morwell Centrelink office to lodge the form personally as he expected it to arrive in the mail and planned to send it back in the same way. Mr Langenberg said that he had not suffered from any illness which would have prevented him from lodging the claim form between 29 May 2006 and 27 June 2006. Mr Langenberg said that it was unfair that he should be suffering monetary loss due to matters outside his control. He is adamant that he did not receive the letter that Centrelink records show was sent to him on 29 May 2006.
CONSIDERATION OF THE ISSUES
8. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim. It requires that a written claim be lodged with Centrelink which must be in accordance with a form approved by the Secretary.
9. Section 41 of the Administration Act states that, unless another provision of the social security law provides otherwise, a social security payment becomes payable on the person’s start day. Section 42 states that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration Act. Clause 3(1) states that:
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.
10. Section 13(1) of the Administration Act provides:
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
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
11. Centrelink’s records show that Mr Langenberg telephoned the agency on 29 May 2006 and that Centrelink sent a letter and claim form on that day to his correct home address. The Tribunal accepts Mr Langenberg’s evidence that he did not receive Centrelink’s letter of 29 May 2006 and that this was the reason he did not lodge the claim within 14 days of 29 May 2006. Mr Langenberg contacted Centrelink again on 27 June 2006 to ask about the missing claim form. He was sent a fresh claim form on that day. Centrelink received the claim form on 6 July 2006, which was less than 14 days from 27 June 2006. Hence, Centrelink invoked a start date for age pension payments of 27 June 2006. The claim was obviously made more than 14 days after 29 May 2006.
12. Section 13(1)(c) indicates that the relevant date for backdating a claim is the date that the Secretary gives a person written notice. A notice can be given to a person without that person physically receiving it. Sections 28A and 29 of the Acts Interpretation Act1901 state that notice can be given to a person directly or by the post:
28A(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document;….
…
29(1) Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
13. Section 13(1)(d) of the Administration Act sets a 14-day time limit from when Centrelink is contacted about a claim, for an earlier start date than the date the claim is actually lodged. It is not the date when the written notice is received by the potential claimant. In other words, a start date earlier than the date of the claim is dependent on the date of the enquiry about claiming age pension rather than the date on which the letter confirming the enquiry is received. If the claim is not lodged within 14 days of the date of enquiry, no matter whether it is because the letter was not received or for some other reason, a claimant is unable to access the beneficial provision allowing for the earlier start date except in the limited circumstances described below.
14. Section 13(2) of the Administration Act allows for backdating a start date for up to 13 weeks after contact is made where a claimant’s medical condition prevents him from lodging a claim. Mr Langenberg indicated that there were no personal health issues that prevented him from lodging the claim. Hence, Mr Langenberg is not assisted by this provision.
15. Section 13(3A) of the Administration Act allows a claim to be backdated up to 13 weeks after a claimant contacts Centrelink in certain circumstances apart from the claimant’s medical condition:
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
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; 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.
16. In this instance, Mr Langenberg lodged the claim more than 14 days after, but within 13 weeks of, 29 May 2006. To invoke the ameliorating provisions of s 13(3A), the Tribunal must be satisfied that there were special circumstances in this case that resulted in it not being reasonably practicable for Mr Langenberg to make the claim earlier.
17. The terms special circumstances and reasonably practicable are not defined in the legislation. The meaning of the term special circumstances in the context of social security law has been discussed in several Federal Court cases. In a recent case of Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J considered the term in the context of s 1237AAD of the Social Security Act 1991, which involves consideration of special circumstances in relation to waiver of a debt to the Commonwealth. However, His Honour’s comments are also pertinent to other provisions in the Act where there is discretion to take special circumstances into account, such as in s 13(3A) of the Administration Act. Besanko J refers extensively to Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 where Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases. Branson J went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.
18. In Angelakos, Besanko J states at paragraph 33:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances…It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case, there must be something that distinguishes the case from the ordinary or usual case…
19. In this matter, Mr Langenberg did not lodge the form in time for the start date to be 29 May 2006. He did not do so because he did not receive the letter which enclosed the claim form. Mr Langenberg produced evidence to show that there were many local examples of letters that did not reach the intended recipient. Mr Langenberg did not follow up the outstanding claim form for four weeks after his initial enquiry. He only did so when prompted by his wife. He cannot recall if the Centrelink officer who spoke to him by telephone on 29 May 2006 had told him that the claim must be made within 14 days for the start date to be that day.
20. 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.
21. Furthermore, s 13(3A) of the Administration Act requires that it was not reasonably practicable for the claim to have been lodged earlier. The term reasonably practicable has been judicially considered in a number of areas of law, although not in the context of s 13(3A) of the Administration Act. In Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, the High Court was considering an industrial accident and the precautions that should be taken to avoid industrial accidents and injuries to workers. Gaudron J stated at 599 (emphasis added):
52. … Once it is accepted that the statutory duty is to design a structure that is as safe as reasonably practicable for construction workers, it follows that the designer is required to incorporate safety features in the design to ensure the safety of those workers if those features are reasonably practicable. That imposes a much higher standard than the exercise of reasonable care in designing a structure.
53. The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
·the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";
·what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;
·to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
22. While Mr Langenberg did not receive the claim form he was expecting to receive in the mail, the Tribunal is not satisfied that he was unable to take alternative steps to lodge his claim before 6 July 2006 or indeed before 12 June 2006. He did not have to wait for four weeks before following up the outstanding claim form. He could have telephoned Centrelink earlier to check on why he had not received the claim form. He lives less than a 15 minute drive from the nearest Centrelink office. He regularly drives his son around. He had retired and hence did not have work or other commitments that prevented him from lodging the form earlier. He could have attended the Centrelink office to pick up a fresh form when the letter did not arrive. The Tribunal is not satisfied that Mr Langenberg’s circumstances should be described as special circumstances. The Tribunal is not satisfied that it was not reasonably practicable for Mr Langenberg to have lodged the claim earlier notwithstanding that he did not receive the correspondence from Centrelink within the time specified. Therefore, the Tribunal finds that Mr Langenberg’s circumstances do not fit within the provisions of s 13(3A) of the Administration Act and he cannot benefit from its ameliorating effect.
23. As stated above, s 13(1) of the Administration Act prescribes the start date unless the subsequent exceptions apply. The Tribunal has found that those exceptions do not apply in this case. The Tribunal finds that the earliest date on and from which Mr Langenberg could be paid age pension is 27 June 2006.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 31 January 2007
Date of decision: 9 February 2007
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr T. Noonan, Centrelink Legal Services
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