Lau and Secretary, Department of Social Services (Social services second review) - [2018] AATA 762

Lau and Secretary, Department of Social Services (Social services second review) [2018] AATA 762 (10 April 2018)
Division:GENERAL DIVISION
File Number: 2017/5336
Re:Jacinda Lau
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D R Davies
Date:10 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
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Senior Member D R Davies
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Successive claims with last claim being successful - Whether payments may be backdated to date of first claim – Provisions governing the date from which payments may be made – No discretion to pay entitlement from earlier date – Decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
CASES
Bagh and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 128.
Khoury and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 174

REASONS FOR DECISION
Senior Member D R Davies
10 April 2018
INTRODUCTION

This is an Application for review of a decision made by the Department of Human Services (the “Department”) on 26 June 2016[1] and subsequently affirmed by the decision of the Social Services and Child Support Division (“AAT1”) on 11 August 2017[2] to pay Miss Jacinda Lau (the “Applicant”) youth allowance at the dependent rate from 10 March 2016 and not from an earlier date.
[1] Exhibit 1 Tribunal Documents, T 23, Pages 211-213
[2] Exhibit 1 Tribunal Documents, T 2, pages 8-11
The issue in this Application is whether the payment of the youth allowance should have commenced from an earlier date than 10 March 2016 and in particular from 6 February 2015.
BACKGROUND
On 6 February 2015 the Applicant contacted the Department about making a claim for youth allowance (the “First Claim”) and lodged her claim on the following day.[3]
[3] Exhibit 1 Tribunal Documents, T5, pages 114-118
The Applicant’s claim provided information in relation to whether she was entitled to be paid the independent rate of youth allowance.[4]
[4] Exhibit 1 Tribunal Documents, T5, pages 114-118.
On 9 April 2015, the Department rejected the Applicant’s claim on the basis it did not have details of her parents income, assets or family actual means and she was not considered independent.[5]
[5] Exhibit 1 Tribunal Documents, T7, pages 157-8.
On 20 April 2015, the Applicant and her father wrote to the Department in relation to her youth allowance claim.[6]
[6] Exhibit 1 Tribunal Documents, T8, page 159.
On 8 July 2015 the Department again wrote to the Applicant advising her that her youth allowance claim had been rejected.[7]
[7] Exhibit 1 Tribunal Documents, T10, page 166.
On 14 July 2015, the Applicant wrote to the Department seeking review of that decision to reject her youth allowance claim.[8]
[8] Exhibit 1 Tribunal Documents, T11, page 168.
On 20 August 2015, an Authorised Review Office (“ARO”) affirmed the decision.[9] The ARO noted that he advised the Applicant that she could test her eligibility as a dependent person, but the Applicant indicated that she did not wish to exercise this option. As a consequence no details of parental income were provided to the Department at that time.
[9] Exhibit 1 Tribunal Documents, T14, page 177.
On 11 November 2015 the Applicant sought further review of the decision of the ARO.[10]
[10] Exhibit 1 Tribunal Documents, T15, page 183.
On 22 February 2016, the Social Services and Support Division (the “AAT1”) affirmed the decision in relation to the First Claim.[11]
[11] Exhibit 1 Tribunal Documents, T16,page 185.
On 10 March 2016, the Applicant contacted the Department about making a further claim for youth allowance.[12] On the same date, the Applicant lodged a further claim for youth allowance (the “Second Claim”).[13]
[12] Exhibit 1 Tribunal Documents, T32, page 280.
[13] Exhibit 1 Tribunal Documents, T17, pages 190-197.
On 19 April 2016, the Department rejected the Applicant’s Second Claim for youth allowance on the basis that the Department did not have details of her parent’s income, assets or family actual means and she was not considered independent.[14]
[14] Exhibit 1 Tribunal Documents, T20,page 201.
On 13 June 2016, the Applicant provided information to the Department in relation to her parent’s income and means.[15]
[15] Exhibit 1 Tribunal Documents, T22, pages 207-210.
On 26 June 2016, the Department granted the Applicant’s youth allowance as a dependent person, with effect from 10 March 2016.[16]
[16] Exhibit 1 Tribunal Documents, T23, page 211.
On 20 July 2016, the Applicant wrote to the Department seeking back payment of her youth allowance to February 2015.[17]
[17] Exhibit 1 Tribunal Documents, T24, pages 214-216.
On 11 January 2017 an ARO affirmed the decision.[18] The ARO advised that she did not have any jurisdiction to review the decision not to pay youth allowance from 6 February 2015, as that decision had already been reviewed by an ARO and by the AAT1 in respect of the First Claim. The ARO also advised the Applicant that if she wished to appeal that decision (i.e. not to make payment of the youth allowance in respect of the First Claim) further, she would need to appeal to the Administrative Appeals Tribunal.
[18] Exhibit 1 Tribunal Documents, T27, page 240.
On 13 February 2017, the Applicant applied for review of the ARO decision in respect of the Second Claim given on 11 January 2017.[19]
[19] Exhibit 1 Tribunal Documents, T28, page 252.
On 27 February 2017, the Applicant applied to the Administrative Appeals Tribunal for review of AAT1’s decision in relation to the First Claim dated 22 February 2016, in respect of the Department’s decision to reject her First Claim for youth allowance.[20]
[20] Exhibit 2 Respondent’s Statement of Facts and Contentions, Attachment 1, pages 6-10.
On 14 March 2017, the Applicant lodged an Application for Extension of Time for Making an Application for Review of Decision.[21]
[21] Exhibit 2 Respondent’s Statement of Facts and Contentions, Attachment 1, pages 2-5.
On 18 April 2017 the Administrative Appeals Tribunal refused to grant an extension of time for review of the Department’s decision to reject the Applicant’s First Claim for youth allowance.[22]
[22] Exhibit 2 Respondent’s Statement of Facts and Contentions, Attachment 1, page 1.
On 11 August 2017 the Social Services and Child Support Division (“AAT1”) affirmed the decision of the ARO in respect of the Second Claim to pay the Applicant youth allowance at the dependent rate from 10 March 2016 and not from an earlier date.[23]
[23] Exhibit 1 Tribunal Documents, T2, pages 8-11.
ISSUE
As mentioned, the issue in this Application is whether the start date for the payment of youth allowance to the Applicant in respect of her youth allowance claim made on 10 March 2016 should be earlier than 10 March 2016 and in particular 6 February 2015.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in Sections 11, 16, 36, 37, 41, 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the “Administration Act”).
Section 11 of the Administration Act provides that a person who wants to be granted a social security payment must make a claim and do so in the manner set out in Section 16.
Sections 36 and 37 of the Administration Act provide that the Secretary is obliged to determine claims for social security payments, either by granting or rejecting where the Secretary is satisfied the Claimant is qualified for the social security payment and it is payable to the person.
Sections 41 and 42 of the Administration Act provide that where a social security payment becomes payable to a person, the person’s start date (for the payment) is the day worked out in accordance with Schedule 2.
Schedule 2, Clause 3 provides as follows:
“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 persons start day in relation to the payment is the day on which the claim is made”.
Part 3 of Schedule 2 of the Administration Act sets out certain circumstances in which a person’s start day in relation to a social security payment maybe earlier than the day worked out in accordance with the general rule. None of those circumstances are relevant to the present application.
THE FACTS
The evidence before the Tribunal is contained in the following Exhibits:
·Exhibit 1 – Tribunal Documents
·Exhibit 2 – Respondent’s Statement of Facts and Contentions including attachments 1 and 2 dated 23 January 2018.
The Applicant appeared in person at the hearing and was also represented by her father, Mr Lau, who made extensive oral submissions on her behalf.
As previously mentioned, the Applicant has made two claims for payment of a youth allowance. The First Claim was made on 6 February 2015.[24] That claim was rejected because she did not meet the criteria to be paid as an independent person and she failed to provide details of her parent’s income, assets or family actual means.[25]
[24] Exhibit 1 Tribunal Documents, T5, page 114.
[25] Exhibit 1 Tribunal Documents, T10, page 166.
Subsequently, the Applicant sought the review of that decision by the ARO who affirmed the decision.[26] As previously mentioned, the ARO noted that he advised the Applicant that she could test her eligibility as a dependent person by providing information as to her parent’s income,[27] however the Applicant did not do so.
[26] Exhibit 1 Tribunal Documents, T14, page 177.
[27] Exhibit 1 Tribunal Documents, T14, page 181.
The Applicant subsequently sought review of the ARO’s decision by AAT1 which on 22 February 2016 affirmed the decision.[28]
[28] Exhibit 1 Tribunal Documents, T16, page 185.
The Applicant sought review of the decision of AAT1 by an Application made on 27 February 2017.[29] As this Application was out of time as it had not been made within 28 days of the decision of AAT1, the Applicant made an Application for Extension of Time for Making an Application for Review of Decision on 14 March 2017.[30]
[29] Exhibit 2 Respondents Statement of Facts and Contentions, Attachment 1, pages 6-10.
[30] Exhibit 2 Respondents Statement of Facts and Contentions, Attachment 1, pages 2-5.
This Application for Extension of Time was refused by the Tribunal on 18 April 2017.
Accordingly, the Applicant is now not able to seek any further review of the decision in relation to the first claim made on 6 February 2015.
The Applicant in her Application for Review of the second claim for youth allowance made on 10 March 2016 says that she called Centrelink in early March 2016 (within the time limit to apply for a second AAT Review) and after a brief discussion with a customer service staff member she was transferred to someone at the special team level. She says in her Application:
“I asked her of my options if I chose not to continue further with the AAT Appeal primarily because I was mentally very stressed over the prior lengthy 13 months. She recommended that I better go along as a dependent, this way I could receive the youth payment much sooner. She suggested that I lodge a NEW Application online as a dependent. I hesitated, and asked her that by doing so, not staying on my original Application, but to lodge a new Application, if I would still receive the youth payment for the past 13 months. She took a while by going through my file history of the Application, and she advised that it was obvious that my Application timeline, despite the prolonged disagreement, dispute and reviews, was always continuous along the past 13 months, and non-contact has never lapsed more than a 13 week period. She assured me that by lodging a new Application again I should be getting back paid to my original Application date (7 February 2015). I took her suggestions and assurance then, and with a peace of mind I lodged the second NEW Application online”.[31]
[31] Exhibit 1 Tribunal Documents, T1, page 6.
CONSIDERATION
As I have previously mentioned, the decision made in respect of the Applicant’s First Claim for youth allowance made on 6 February 2015, is now final and cannot be reviewed.
In relation to the Second Claim for youth allowance made on 10 March 2016, Mr Lau in his submissions on behalf of the Applicant to the Tribunal said that the Second Claim was made because the Applicant was induced to make this claim rather than prosecute further review of the first claim because she was told by a member of Centrelink’s special team in the conversation in early March 2016, that the claim for youth allowance would start from February 2015.
However, I note that in relation to this and the extract from the Application for review to which I have previously referred[32]that whilst the claim for youth allowance made on 10 March 2016 was on the basis that she was a dependent, details regarding her parent’s income were not supplied.[33] This resulted in this claim initially being rejected by the Department on 19 April 2016.[34] It was not until the Applicant provided details of her parent’s income and means that her claim was accepted by the Department on 26 June 2016 with the commencement date for payment being 10 March 2016.[35]
[32] Exhibit 1 Tribunal Documents, T1, page 6.
[33] Exhibit 1 Tribunal Documents, T17, page 193.
[34] Exhibit 1 Tribunal Documents, T20, page 201.
[35] Exhibit 1 Tribunal Documents, T23, page 211.
In accordance with Clause 3 of Schedule 2 of the Administration Act, the general rule is that the person’s start day in relation to the payment is the day on which the claim is made. In this case, the claim was made on 10 March 2016 and in accordance with the general rule that is the start day for payment of youth allowance to the Applicant.
However, as I have mentioned, it is submitted on behalf of the Applicant that the start date should be back dated to 6 February 2015, the date on which her First Claim for youth allowance was made because she was led to believe by a person at Centrelink that if she made a claim for youth allowance on the basis that she was a dependent in March 2016, that it would be back paid to the date of the First Claim which was 6 February 2015.
As I have previously mentioned, that whilst Part 3 of Schedule 2 of the Administration Act does allow for different start dates in certain circumstances to the date applicable under the general rule, none of those circumstances apply to the present claim.
The legislation does not give the Tribunal a general discretionary power to back date the start date of payments. This has been confirmed in previous decisions of the Tribunal: Bagh and Secretary Department of Education Employment and Workplace Relations[36]and Khoury and Secretary Department of Education Employment and Workplace Relations.[37]
[36] [2011] AATA 128.
[37] [2011] AATA 174.
Accordingly, I find that there is no basis for the start day of the Applicant’s claim for youth allowance to be back dated to a date prior to the date on which the claim was made which is 10 March 2016.
CONCLUSION
It follows that the Application for Review is unsuccessful and that the decision of AAT1 under review is affirmed.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

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Associate
Dated: 10 April 2018

Date of hearing: 15 March 2018

Advocate for the Applicant: Mr Kim Lau

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

Date of hearing:	15 March 2018
Advocate for the Applicant:	Mr Kim Lau
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services