Lunney and Secretary, Department of Family and Community Services

[2005] AATA 636

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 636

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/941

GENERAL ADMINISTRATIVE DIVISION		)
Re		LISA-MAREE LUNNEY

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date 5 July 2005

Place Brisbane

Decision  The Tribunal affirms the decision under review.

.         .......[Sgd].........

MJ Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – Youth Allowance – whether arrears payable to applicant at higher rate – whether review of decision sought after 13 weeks notice

Social Security (Administration) Act 1999 ss 108, 109, 129

REASONS FOR DECISION

5 July 2005   Ms MJ Carstairs, Member

1.      Centrelink pays youth allowance at two rates.  One is the living at home rate; the other, higher rate is the living away from home rate. 

2.      Lisa Maree Lunney (the applicant) seeks review of a decision of Centrelink, affirmed by the Social Security Appeals Tribunal (SSAT), not to pay her youth allowance at the living away from home rate before 9 July 2004.   She was paid at the lower at home rate from the date of her claim on 28 February 2003.   The issue before the Tribunal is limited to whether at any time prior to 9 July 2004, the applicant, or someone on her behalf, sought a review of the rate of youth allowance that she was being paid.

3.      The applicant was assisted at the hearing by her grandmother, Mrs R Lunney.  The respondent was represented by its advocate Ms S Oliver.

4. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T32 as well as exhibits marked A1 for the applicant and R1-R3 for the respondent.  On 26 May 2005, the respondent lodged supplementary submissions and documentary evidence.

BACKGROUND

5.      The applicant’s mother died when the applicant was two years old and she has lived since then with her grandparents.  Mrs Lunney receives age pension.  No custody agreement was lodged formally with the Family Court, however a document dated 4 July 1990 (T5) reflected an agreement of that kind between the grandparents and the applicant‘s father.  The father lives overseas and effectively appears to play little part in his daughter’s life.

6.      The applicant is now aged eighteen.  She was eligible for youth allowance when she turned sixteen.  Her grandmother duly applied.  The rate paid was less than they had been receiving for the applicant as family tax benefits. 

7.      Centrelink now pays the applicant youth allowance at the higher living away from home rate and has done so since Mrs Lunney requested a review in July 2004 after she saw a television program on Centrelink benefits for ‘double orphans’.  There has been past confusion about the applicant’s entitlement to the higher rate, but that is the case now.  The Tribunal accepts the applicant is entitled to the higher rate.  The legislation provides for this and the parties are not in dispute on this point.  (The SSAT did not agree and considered that the applicant was entitled only to the living at home rate.  However the decision under review before this Tribunal concerns the decision not to pay arrears at the higher rate and this Tribunal does not need to consider the reasoning of the SSAT in forming their views).   

EVIDENCE

8.      Mrs Lunney said that in the lead up to the applicant’s sixteenth birthday, she had queried a number of times the amount of youth allowance that the applicant would receive, including on 13 February 2003 and again on 28 February 2003.  She said that she continued to query the rate whenever she went to Centrelink and she also enquired when she telephoned Centrelink. 

9.      The applicant confirmed that she had attended Centrelink with her grandmother a number of times and recalled conversations occurring with Centrelink officers during which her grandmother was told that they were receiving the correct rate of youth allowance.

10.     Mrs Lunney said that, when Centrelink requests documents or information, she takes it to Centrelink promptly, and early in the process of granting the youth allowance, requested proof of identification, such as the applicant’s Medicare and student cards were taken in by Mrs Lunney personally.

11.     The applicant calls Mrs Lunney Mum.  Mrs Lunney said that she had to correct one Centrelink officer who referred to her as the applicant’s mother, rather than grandmother.  The applicant acknowledged that she may have added to the confusion by writing on her claim form that her mother assisted her rather than stating her grandmother.

12.     Both Mrs Lunney and the applicant recalled raising the low rate of payment on more than one occasion at Centrelink with one particular officer, the father of a school friend of the applicant.  They said that he assured them that the rate of the applicant’s payment was correct; that everyone gets that rate; and they said he referred to his own receipt of that rate.  Mrs Lunney acknowledged that most of her queries would have been made before the date that youth allowance was granted. 

13.     Mrs Lunney acknowledged that most Centrelink discussions about the rate occurred prior to the grant of the claim. The applicant said also that she did not know whether the conversations that she had heard her grandmother have about the rate took place before or after they received notification about the grant of youth allowance.

14.     Mrs Lunney said that once she was told that she was receiving the correct amount she accepted it because she believed the information to be correct.  She said she did not request a review, or appeal the decision, because she accepted that the information as correct.  She said you don’t go in to argue with the system.  She said she accepted that she just had to manage on the money they were given, even though it was very difficult as Mrs Lunney has no income apart from her age pension. 

15.     The documentary records included a file note (Attachment 1 to exhibit R3) which was a computer summary of a phone call from Mrs Lunney to Centrelink on 13 February 2003 in which Mrs Lunney was referred to as being confused about family tax benefit and youth allowance payments and that Mrs Lunney felt she and child hard done by re reduced rate”.

16.     A customer record access management report (CRAM) recorded that on 7 March 2003, a Centrelink officer accessed the applicant’s record to process the youth allowance claim.  Later the same morning, there was further computer access activity recorded dealing with establishing proof of identity.  This may have related to the provision of the Medicare card.  There was no record of access being made to the applicant’s payment summary screen.

CONSIDERATION OF THE ISSUES

17.     The legislation applying in this matter is to be found in the Social Security (Administration) Act 1999 (the Administration Act). The Administration Act, which came into effect in 2000, deals with general provisions in regard to the different categories of payments made under the Social Security Act 1991, including youth allowance claims, notices and decisions made about such matters as dates of effect of decisions. Of particular relevance in this matter are s109 and s129 of the Administration Act.

18. Section 109 of the Administration Act allows for different dates of effect for a favourable determination (s108). The dates depend on findings about whether the person received notice of a decision under the Administration Act, and on whether review was sought within the statutory time frame of 13 weeks.

19. Section 109(2) of the Administration Act provides as follows:

109(2)  If:

(a)a decision (the original decision) is made in relation to a person’s social security payment; and

(b)a notice is given to the person informing the person 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)       the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the application for review was made.

20.     The Tribunal accepts Mrs Lunney’s evidence that she queried the rate of payment of youth allowance because she was concerned about the reduction in the amount that the applicant would be receiving.  The difficulty is that neither Mrs Lunney nor the applicant could say whether the queries were made before or after the youth allowance was granted.  All the documented evidence of contacts were before the claim was granted, apart from the documented contact on 7 March 2003.  Contacts made before the claim was granted cannot be characterised as requests to review the decision because the decision had not been made.

21.     The Tribunal was reasonably satisfied that the contact on 7 March 2003 was confined to bringing in the requested further documentation to establish proof of identification.  The Tribunal accepts that Mrs Lunney made a number of enquiries about the rate of payment, but she and the applicant were honest about their lack of detailed recall about when these enquiries took place.  In the absence of any supporting evidence from the computer records of screen activity when the documents of identity were taken in on 7 March 2003, the Tribunal does not accept that the attendance on 7 March 2003 at Centrelink was one of the occasions when Mrs Lunney queried the rate of payment.  The Tribunal considers that the primary focus of that visit would have been to provide the additional materials to allow the claim to be granted.

22.     The Tribunal accepts the respondent’s submissions that there is no record of call centre contacts that would support a view that rate of payment of youth allowance was discussed by telephone.  It is unlikely that Centrelink, being an organisation which encourages telephone receipt of information and has a comprehensive system for recording telephone contacts and entering computer data, would fail to record telephone contacts if made at any time between the date of the grant of the claim and when Mrs Lunney made the request in July 2004 that led to correction of the incorrect rate of payment for her granddaughter.

23. There were two decisions made and notified to the applicant by Centrelink in the period between the claim and when the rate was corrected to the higher rate. These were the decisions granting the claim on 7 March 2003 (T5) and the decision relating to the next school year, dated 29 January 2004 (T15). The Tribunal was satisfied that there was no request for review of either decision within the 13 weeks allowed under the Administration Act for backdating to occur. For these reasons the Tribunal affirms the decision under review.

24.     The parties told the Tribunal about proposed investigations of whether the applicant might be eligible to receive a payment, similar to the arrears sought in this review, under the Compensation for Detriment caused by Defective Administration Scheme.  These were held in abeyance pending the Tribunal’s review.   This should now proceed with expedition.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:  Jenny Tran

Associate

Date/s of Hearing         12 May 2005, Hervey Bay, 27 June 2005, Brisbane

Date of Decision           5 July 2005  
The Applicant appeared in person
For the Respondent      Ms S Oliver, Departmental Advocate