Martinez and Secretary, Department of Social Services (Social services second review)

[2015] AATA 692

Martinez and Secretary, Department of Social Services (Social services second review) [2015] AATA 692 (22 July 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2039
Re	Pedro Martinez
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey

Date of decision

Date of reasons

22 July 2015

10 September 2015  

Place

Sydney

The Tribunal dismisses the application for review under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

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Senior Member J F Toohey

CATCHWORDS – age pension – start date – whether payment can be backdated – dismissal of application – no reasonable prospect of success – application for review dismissed

Legislation

Social Security (Administration) Act 1999 s 11, 12, 13(1), 13(3A), 15, cl 3(1), 10, 12 and 13 of Sch 2

Administrative Appeals Tribunal Act 1975 s 42A(1), 42B(1)(b)

Cases

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Groth and Secretary Department of Social Security (1995) FCA 1708

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. These written reasons concern the date from which Mr Pedro Martinez can be paid an age pension.  They reflect reasons given orally at the conclusion of a directions hearing on 22 July 2015.

2. Mr Martinez turned 70 on 2 August 2014.  On 1 August 2014, he contacted Centrelink to enquire about claiming the age pension.  He lodged his written claim for the pension on 18 August 2014. 

3. On 8 September 2014, Centrelink decided to pay Mr Martinez age pension from 18 August 2014.  Mr Martinez requested a review of this decision claiming he should be paid age pension from 2 August 2014, being the day after he first enquired about claiming the pension, and the day he turned 70. 

4. On 26 March 2015, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision to pay Mr Martinez age pension from 18 August 2014.  Mr Martinez seeks review of the SSAT’s decision. 

5. Mr Martinez attended a directions hearing by telephone.  The purpose of the directions hearing was to determine whether the matter could be resolved without proceeding to a hearing.  Based on concessions made by Mr Martinez during the directions hearing which are discussed below, the Tribunal dismissed his application on the basis it had no reasonable prospect of success.

   Relevant legislation

6. The relevant legislation is in the Social Security (Administration) Act 1999 (the Act).

7. To be granted a social security payment a person must make a claim: s 11.  If a person makes a claim and is qualified for the payment, the general rule is that payment will start from the date on which the claim was made: cl 3(1) of Sch 2.  

8. A person may be paid from the date on which she or he contacts Centrelink in relation to a claim for a social security payment if: the person is qualified for the payment on that day; Centrelink gives the person written acknowledgement of the contact; and the person lodges a claim for the social security payment within 14 days after he or she contacts Centrelink: s 13(1).

9. There are several provisions in the Act for backdating payments, none of which apply to Mr Martinez: see ss 12, 15 and cl 10, 12 and 13 of Sch 2 of the Act.  The only exception to the requirement that a claim be lodged within 14 days after a person contacts Centrelink that could be relevant to Mr Martinez is if the Secretary (and therefore the Tribunal) is satisfied that, in the special circumstances of the case, it was not reasonably practicable for him to lodge his claim earlier: s 13(3A). 

   Consideration

10. The meaning of special circumstances has been considered on many occasions in decisions that are well-known.  The exercise of the discretion requires circumstances that, while not necessarily unique, are “unusual, uncommon, or exceptional” and have “a particular quality of unusualness that permits them to be described as special”: Re Beadle and Director-General of Social Security (1984) 6 ALD 1; see also Groth and Secretary Department of Social Security (1995) FCA 1708.

11. There is no argument Mr Martinez contacted Centrelink to enquire about claiming age pension on 1 August 2014 and then lodged his claim 17 days after his enquiry on 18 August 2014.  Mr Martinez claims he did not receive any letter from Centrelink advising he had to lodge his claim before 15 August 2014.  He said he received some forms from Centrelink on 8 August and the earliest he could lodge the forms was 18 August 2014 as he had to get tax returns from his accountant and had some difficulty getting an appointment with him.  I understand Mr Martinez to say that, had he received a letter advising he was required to lodge his claim within 14 days of contacting Centrelink, he would have asked Centrelink for an extension of time. 

12. In discussing his claim for age pension with Mr Martinez, he agreed it was “very clear” special circumstances did not prevent him from lodging his claim within 14 days of contacting Centrelink.  However, he asked the Tribunal to give him “the benefit of the doubt” and accept he did not receive a letter from Centrelink advising of the 14 day time limit.  Even if I accept that is so, however, I am not satisfied that Mr Martinez’s circumstances are special for the purposes of social security law.  As no other discretion is enlivened in his circumstances by which his payment may be backdated, his appeal to this Tribunal cannot succeed. 

    Dismissal of the application

13. Where all parties to an application before the Tribunal for review consent, the Tribunal may dismiss the application without proceeding to review the decision: s 42A(1) of the Administrative Appeals Tribunal Act 1975. After explaining to Mr Martinez his appeal could not succeed, I invited him to consent to his application being dismissed. Mr Martinez declined to consent and asked that the Tribunal “go and study the situation and make a decision but not now”.

14. I explained to Mr Martinez that the Tribunal may dismiss his application, without his consent, if satisfied the application has no reasonable prospects of success: s 42B(1)(b). Although Mr Martinez was not given prior notice that his application could be dismissed for lacking reasonable prospects of success I am satisfied that, having discussed with him at some length the reason his application for review could not succeed, he understood that his application had no reasonable prospect of success and that there was nothing to be gained by continuing with his application.

    Conclusion

15. I am satisfied this application for review has no reasonable prospects of success and for that reason it is dismissed.

16.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 10 September 2015

Date(s) of hearing		22 July 2015
Representative for the Applicant		Self-represented
Representative for the Respondent	M Sandra Wavamunno, Department of Human Services