McCubbing and Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 443
•23 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 443
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/666
GENERAL ADMINISTRATIVE DIVISION
Re: DANILA McCubbing
Applicant
And:secretary,
department of familIES, community services AND
INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:23 May 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
SOCIAL SECURITY – age pension – date of claim ‑ start day – special circumstances – service of documents by post
Acts Interpretation Act 1901 ss 28A, 29
Social Security (Administration) Act 1999 ss 11(1), 41(1), 42
Beadle v Director‑General of Social Security (1985) 7 ALD 670
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Secretary, Department of Social Security and McAvoy (1996) 44 ALD 721
Re Winchester and Secretary, Department of Family and Community Services
[2005] AATA 867
REASONS FOR DECISION
23 May 2006 Mr E. Fice, Member
1. Ms Danila McCubbing lodged an application for the age pension on 20 January 2005. Centrelink, which acts as agent for the respondent, made a decision on 11 March 2005 granting Ms McCubbing the age pension commencing on 17 January 2005. Ms McCubbing sought a review of that decision because, in her view, she should have been granted the age pension from the day on which she ceased full‑time employment, which was 5 November 2004. On 20 April 2005 an authorised review officer (ARO) affirmed the decision made by Centrelink to grant Ms McCubbing the age pension from 17 January 2005. Ms McCubbing appealed to the Social Security Appeals Tribunal (SSAT). The SSAT decided on 6 July 2005 that the decision made by Centrelink on 11 March 2005 was correct. Ms McCubbing seeks a review of that decision of the SSAT.
BACKGROUND
2. Ms McCubbing reached the age pension qualifying age, 61 years, on 26 February 1999. However, realising that she did not have an adequate financial plan in place to ensure a reasonable standard of living in her retirement, she elected to continue working full‑time. She decided to invest the majority of her salary into her superannuation fund in order to take advantage of the pension bonus scheme.
3. According to Ms McCubbing, in about October 2002 she sought the advice of a financial services information officer at Centrelink. She was told that in order to have her pension bonus correctly assessed, she needed to have all the appropriate documentation completed and produced to Centrelink, and her investments finalised, before she could lodge her application for a pension. She claimed she was assured by the financial services information officer that her age pension would start immediately after she finished working full‑time. Centrelink records disclose that on 18 October 2002, Ms McCubbing telephoned Centrelink and inquired about the Seniors Health Card. She was sent information regarding retirement planning. There is no record of any information having been sent, or of a discussion regarding age pension claim requirements. On 2 December 2002 she was granted the seniors health card.
4. Centrelink records also disclose that Ms McCubbing had an unscheduled appointment with the financial services information officer on 1 December 2003 at 9:00 a.m. She does not appear to have attended that meeting.
5. On 8 April 2004 Ms McCubbing sought an interview with the financial services information officer and this was arranged for Tuesday, 27 April 2004 at 9:30 a.m. The note made by the financial services information officer indicates that Ms McCubbing wanted to find out the rules which applied to the age pension, but she was reluctant to provide personal financial information. The pension means test was explained to her as were qualification criteria for the age pension and the claim process.
6. Ms McCubbing next contacted Centrelink on 12 May 2004 at 1:21 p.m. Apparently Ms McCubbing told the Centrelink officer that she had to register her resignation from employment on the following day and she asked if she could speak with the financial services information officer regarding the impact on claiming a pension if she took half of her long service leave via a salary package, or if she took the entire amount as a salary sacrifice. Apparently a person by the name of Michael, who was the financial services information officer at that time, was unable to take Ms McCubbing's call. She left a message for him to call her on that day. There is no record of any conversation taking place on that day with the financial services information officer.
7. The next contact by Ms McCubbing recorded at Centrelink was a telephone call on 24 December 2004 at 1:50 p.m. That was some six weeks after Ms McCubbing ceased working on a full‑time basis.
8. According to Centrelink, a letter dated 24 December 2004 was sent to Ms McCubbing, confirming that Centrelink was contacted on that day regarding her intention to claim a payment or a concession card. The letter also enclosed claim forms and advised her to complete and sign the forms and to return them as soon as possible. The letter stated that if the completed claim form was returned to Centrelink on or before 7 January 2005, and if she qualified for the age pension on her contact date (24 December 2004), that contact date would be used as the day on which her claim was made. However, Ms McCubbing said in evidence that although she had received the documents referred to in the cover letter of 24 December 2004, she had not received the letter itself.
9. Ms McCubbing next contacted Centrelink by telephone at 10:37 a.m. on 17 January 2005. According to her, that was the first time that she was correctly informed about her claim for a pension; the advice being that she was not entitled to be paid until she had made a claim. However, the Centrelink file note of that telephone conversation records something different. The note states that Ms McCubbing telephoned to request an extension of time for lodging a claim for the age pension. The note continues that the author noted Ms McCubbing's intention to claim and advised her to lodge the claim forms within 14 days to enable the claim to be backdated to the date of the call. The note then states that Ms McCubbing was still chasing up documentation on investments and super. Ms McCubbing was advised to at least lodge a claim for the age pension and pension bonus and that the documentation could be provided later. It also appears that Ms McCubbing visited the Camberwell Centrelink office at 11:11 a.m. on 17 January 2005 and that she was interviewed. Centrelink sent a letter in essentially the same terms as the 24 December 2004 letter to Ms McCubbing. Ms McCubbing finally lodged her claim for the age pension on 20 January 2005 at the Camberwell office of Centrelink.
CONSIDERATIONS
10. The Social Security (Administration) Act 1999 (the Administration Act) sets out the administrative provisions regarding claims for social security payments. Section 11(1) of the Administration Act provides that a person who wants to be granted a social security payment must make a claim for the payment in accordance with Division 1 of Part III of the Administration Act.
11. Section 41(1) of the Administration Act provides that unless the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment. The start day is defined in s 42 of the Administration Act as the day which is worked out in accordance with Schedule 2 of the Administration Act. The general rule, which is found under Part II of Schedule 2, provides that if a person makes a claim for a social security payment and 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. The other provisions of Schedule 2 are not relevant to Ms McCubbing's claim. Therefore, the start day as far as Ms McCubbing is concerned, is the day on which the claim was made.
12. Section 13 of the Administration Act deems claims to have been made where the Department has been contacted by post, telephone or by the use of a facsimile, computer or other electronic means.
13. Section 13(1) of the Administration Act provides:
(1) 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.
14. In this case Ms McCubbing's claim was deemed to have been made on 17 January 2005, that being the day on which she contacted the Department regarding a claim for the age pension and she was of course qualified on that day to receive the pension. Furthermore, she was given a written notice by the Secretary acknowledging that the Department had been contacted in relation to the claim and she lodged her claim for the age pension within 14 days after the Department was contacted.
15. Ms McCubbing, on the other hand, sought to rely on s 13(3A) of the Administration Act, which provides:
(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
(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 particular, Ms McCubbing contends that the special circumstances exception should apply in her case for the reason that she was given incorrect information by the financial services information officer when she spoke with him in about October 2002. However, as Centrelink records indicate, there was no contact between Ms McCubbing and Centrelink between 12 May 2004 and 24 December 2004. She did not qualify for the age pension until 5 November 2004 and therefore she could not, in any event, satisfy the requirements set out in s13(3A) before that date.
17. Ms McCubbing also claimed not to have received Centrelink's letter of 24 December 2004. She submitted that had she received that letter, she would have made an application for the age pension prior to 7 January 2005, thereby preserving her start date at 24 December 2004.
18. It seems to me to be somewhat unusual that Ms McCubbing received all of the enclosed documents regarding her claim for the age pension and a claim for the pension bonus, but the envelope did not contain the covering letter. I have also noted that in Ms McCubbing's undated letter to the SSAT she refers to the envelope sent to me on 24/12/2004. Although, of course, Ms McCubbing may simply be referring to the letter which she subsequently saw or the postmark on the envelope, it seems to me that she would not have known the date of that letter without seeing the copy produced for the purposes of this hearing. I was also concerned by the fact that the Centrelink officer's file note of 17 January 2005 recorded that Ms McCubbing had requested an extension of time to lodge the claim for the age pension. Although Ms McCubbing said that she contacted Centrelink on 17 January 2005 because she had finalised the documentation regarding her investments and superannuation, it is clear from the file note that this was not the case. I am also concerned about the fact that Ms McCubbing did not contact Centrelink at the time of, or just prior to, ceasing full‑time work; if for no other reason than to confirm the advice she said she had been given by the financial services information officer some seven months previously.
19. I also have some concern about the fact that page 3 of the age pension application form for age pension, in a shaded portion at the top of that form, reminds the applicant to return the application forms within 14 days of initial contact with Centrelink to ensure that payment is made at the earliest date possible. The note also states that if the applicant cannot return the forms within 14 days, Centrelink should be contacted to seek an extension of time. Although I asked Ms McCubbing in the course of the hearing whether she recollected making such an application for an extension of time when she contacted Centrelink on 17 January 2005, she said that she could not recall. The logical explanation seems to be that Ms McCubbing did see the note at the top of page 3 of the application form and, because she was still attempting to finalise the documents regarding her superannuation and investments, she sought an extension of time to lodge a claim for the age pension. It was only at that point, according to Ms McCubbing, that she was advised to lodge a claim within 14 days to enable that claim to be backdated to the first date of contact. I believe that to be the most likely explanation for the file note of 17 January 2005. Therefore, I have formed the opinion that despite the fact that Ms McCubbing may not have received the cover letter dated 24 January 2004 advising her to lodge her claim by no later than 7 January 2005, she was nevertheless aware of the need to lodge her application within 14 days of the telephone contact after she had read the application form.
20. Ms McCubbing said that the note under Step 3 on the application form regarding arranging an interview caused her some confusion. That note recommends that when the applicant has filled in the forms and collected all of the original documents, he or she should arrange an interview at which the application can be lodged. I am not able to understand why that would cause confusion. Even though it was reasonably clear to me that English is not Ms McCubbing's first language, she seemed to have a strong command of the language. I have difficulty in agreeing with her that the statement set out in Step 3 of the age pension application form, and the requirement to return the forms within 14 days, would cause confusion.
21. The respondent’s advocate submitted that, in any event, the Secretary could rely on s 237 of the Administration Act for the purpose of the Tribunal holding that the despatch of the cover letter of 24 December 2004 by pre‑paid post was good notice for the purposes of the social security law. However, s 237 only applies to notices of decisions and clearly the cover letter of 24 December 2004 does not fall within that description (s 237(4)). Alternatively, the respondent’s advocate submitted that s 28A and s 29 of the Acts Interpretation Act 1901 (Acts Interpretation Act) applied in relation to the service of documents by post. In so far as it is relevant, s 28A provides:
(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; or
(b)…
(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
Section 29 of the Acts Interpretation Act provides:
(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.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
22. For the purposes of s 13 of the Administration Act, in order for an applicant to take advantage of the deeming provisions contained therein, the Secretary must give the person a notice in writing acknowledging the contact in relation to making the claim. Given that both s 28A and s 29 of the Acts Interpretation Act include the expression give, it seems to me that both of those sections apply to the notice given by the Secretary in relation to the contact by Ms McCubbing. However, there was no evidence before me regarding the pre‑paying and posting of the notice. Therefore , I am not satisfied that the Secretary can rely on the s 28A and s 29 of the Acts Interpretation Act for the purpose of finding that notice was given by the Secretary on 24 December 2004 that he had been contacted in relation to Ms McCubbing's age pension claim.
23. Ms McCubbing also submitted that she should be able to rely on the provisions set out in s 13(3A) of the Administration Act in respect of the contact made on 24 December 2004. If she were able to satisfy s 13(3A)(e), she should be able to rely on the contact made on that day for the purpose of having her start day for the age pension brought forward to 24 December 2004. It seems to me that this submission has some merit, provided that there exist in this case special circumstances which resulted in it not being reasonably practicable for Ms McCubbing to lodge the claim earlier than 20 January 2005.
24. The expression special circumstances has been considered many times both by this Tribunal and also the Federal Court. The Secretary directed my attention to Beadle v Director‑Generalof Social Security (1985) 7 ALD 670. The Full Court of the Federal Court said, at 674:
…More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase “special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
25. In Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277, French J said, at 281:
The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened….The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324: Burchett J. But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 27 ALD 309 ; 108 ALR 322.
26. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J said, at 545, after referring to Beadle's case that:
…for the present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. …It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
27. I should also briefly mention two cases decided by this Tribunal, namely Re Secretary, Department of Social Security and McAvoy (1996) 44 ALD 721 and Re Winchester and Secretary, Department of Family and Community Services [2005] AATA 867. In both of those cases, the Members who heard those matters found that where the wrong advice was given by representatives of Government through its Departments and Agencies following inquiries by the applicant, that might constitute an uncommon or even unusual occurrence. However, even if I were to agree that there were special circumstances in Ms McCubbing's case regarding the failure of a Centrelink officer to include in its letter to Ms McCubbing on 24 December 2004, the covering letter dealing with the need to file an application by no later than 7 January 2005, I would also need to find, for Ms McCubbing to get relief, that it was not reasonably practicable for her to lodge the claim earlier. Given that Ms McCubbing said that she saw the note at the top of page 3 of the age pension application form, and that she could have simply made a telephone call to confirm the date by which she had to have her application lodged, in order to take advantage of the deeming provisions set out in s 13 of the Administration Act, I cannot find that it was not reasonably practicable for Ms McCubbing to lodge her claim at an earlier date. Therefore, in my opinion, Ms McCubbing cannot avail herself of the special circumstances provisions set out in s 13 (3A) of the Administration Act.
CONCLUSION
28. For the reasons I have set out above, it is my view that the decision made by the SSAT on 6 July 2005 must be affirmed.
I certify that the twenty‑eight [28] preceding paragraphs are a true copy of the reasons for the decision of:
Mr Egon Fice, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 9 May 2006
Date of decision: 23 May 2006
Advocate for the applicant: Self-represented
Advocate for the respondent: Ms J. Hume, Legal Services Branch, Centrelink
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