McMahon and Secretary, Department of Family and Community Services

[2004] AATA 797

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/62

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jutta Ursula McMahon

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Mr D.J. Trowse (Member)

Date29 July 2004

PlaceAdelaide

Decision The decision under review is affirmed.

D.J Trowse
     (signed)
     Member

CATCHWORDS

SOCIAL SECURITY -  mobility allowance – payment of arrears – payment start date – decision affirmed

Social Security Act 1991; Part 2.21, ss1035, 1040, 1041

Social Security Act 1947; Parts XV, XVIII, ss148, 158, 159

Social Security (Administration) Act 1999; ss11, 13, Schedule 2 Clause 3

Acts Interpretation Act 1901; s8

Secretary, Department of Social Security v O’Connell and Secretary, Department of Social Security v Sevel (1992) 28 ALD 626

REASONS FOR DECISION

29 July 2004 Mr D.J. Trowse (Member)

1. Ms Jutta Ursula McMahon (the applicant) has made an application to this Tribunal to review a decision of the Social Security Appeals Tribunal (SSAT) dated 2 February 2004 which affirmed a decision of a Centrelink officer that arrears of mobility allowance are not payable prior to December 2002. This issue raises for consideration various provisions contained in Part 2.21 of the Social Security Act 1991 (1991 Act) and sections 11, 13 and Schedule 2 Clause 3 of the Social Security (Administration) Act 1999 (Administration Act). Also, in terms of a submission made on behalf of the applicant, the Tribunal is required to consider Parts XV – Mobility Allowance – and XVIII – claims, payment, notification, review, cancellation and related matters – of the Social Security Act 1947 (1947 Act). Central to that submission is a perceived discretion which allows the Secretary to accept liability for the payment of mobility allowance without the lodgement of a claim form.

2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with eight exhibits tendered by the applicant and one by the respondent. Additionally, the Tribunal heard evidence from the applicant. At the hearing, the parties were represented by Ms M. Riley for the applicant and Mr J. Kearney for the respondent.

3.      Based on the oral and written evidence before it, the Tribunal makes the following findings of fact:

a)The applicant has been visually impaired since birth. She suffers from horizontal nystagmus and high myopic astigmatism. Those conditions cause the applicant to experience a number of difficulties including the use of public transport.

b)The applicant has been employed by the Commonwealth Public Service from 2 November 1992 and has worked within Centrelink since 9 October 1997.

c)Prior to her employment, the applicant was subjected to an assessment of ocular fitness regarding her possible appointment. During the period of employment, there have been a number of further assessments to determine necessary workplace adaptions.

d)The applicant has encountered and overcome a variety of ocular problems in the performance of the duties attached to her employment. Furthermore, the applicant because of her restricted vision was unable without substantial assistance to use public transport in travelling to and from work.

e)Throughout the period of employment, the applicant’s employer, although being aware of the difficulties and restrictions confronting the applicant, did not mention to her the possibility of entitlement to the mobility allowance.

f)Until December 2002, when a colleague suggested otherwise, the applicant was not aware that she might be entitled to receive a mobility allowance.

g)On 10 December 2002, the applicant contacted Centrelink about claiming mobility allowance.

h)On 17 December 2002 the applicant lodged a claim for mobility allowance.

i)The applicant’s claim was granted with effect from 10 December 2002. This was followed by a request that the entitlement be backdated to the date upon which the applicant commenced her employment with the Commonwealth Public Service, that is, 2 November 1992.

j)A decision made by a Centrelink officer on 26 November 2003 that arrears of mobility allowance were not payable prior to 10 December 2002 was affirmed by an Authorised Review Officer on 2 December 2003.

4. As between the parties, it was agreed that, had the applicant applied for the mobility allowance upon taking up her position with the Commonwealth Public Service, she would have been entitled to receive the allowance. Based on that acceptance and the employer’s failure to alert the applicant’s attention to such an advantage, it was submitted that a “deemed claim” arose. Furthermore, it was contended that, in the circumstances, the said discretion contained in subsection 148(1) of the 1947 Act should be exercised in the applicant’s favour. It seems that the introduction of the 1947 Act into these proceedings is founded on the concept that the applicant, in some way, had a right/privilege under that Act. Apparently, it is the possession of the right/privilege that brings into play section 8 of the Acts Interpretation Act 1901 which effectively preserves the right/privilege into the future.

5.      The relevant sections to be applied by the Tribunal in relation to qualification for mobility allowance and the start date of a grant of the allowance are derived from both the 1991 Act and the Administration Act.  The relevant sections are set out as follows:

1991 Act

Qualification for mobility allowance

1035(1) A person is qualified for a mobility allowance if the person satisfies the travel test set out in subsection (2) and:

(a) all of the following apply:

(i) the person is a handicapped person;

(ii) the person is engaged in gainful employment;

(iii) the Secretary is of the opinion that:

(A) the person is unable to use public transport without substantial assistance, either permanently or for an extended period; and

(B) the person's inability to use public transport without substantial assistance is due to the person's physical or mental disability; and

(C) the person is engaged in the gainful employment for at least 32 hours in every 4 weeks on a continuing basis;

(iv) the person is an Australian resident;

…

1035(2) A person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person's home for the purpose of undertaking:

(a) gainful employment; or

(b) vocational training; or

(c) job search activities; or

(d) voluntary work.

administration act

General rule – Sect 11

(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a) a social security payment; or

(b) a concession card;

must make a claim for the payment or card in accordance with this Division.

…

Deemed claim—person contacting Department about a claim for a social security payment – Sect 13

(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.

…

Schedule 2, Clause 3

Part 2—General rules

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 person's start day in relation to the payment is the day on which the claim is made.

The Administration Act, which commenced on 20 March 2000, effectively replaced those sections of the 1991 Act that addressed the date of commencement for the payment of the allowance.

6.      The Tribunal accepts that the applicant was qualified for the mobility allowance when she contacted Centrelink on 10 December 2002 and that, within the prescribed period of 14 days, she lodged her claim. Accordingly, the Tribunal concludes that, in terms of subsection (1) of the Administration Act, the applicant is taken to have made her claim for Mobility allowance on 10 December 2002 and, also that, under clause 3(1) of Schedule 2 of the Administration Act, the start date in relation to the payment therefore is 10 December 2002.

7.      The applicant’s proposition that the asserted right/privilege should come to her assistance has caused some uncertainty. After due consideration of the written and oral submissions presented to the Tribunal, it seems that the proposal is based on the following line of reasoning –

·section 148 of the 1947 Act provides a discretion which, if exercised, permits the payment of Mobility allowance without the lodgement of a claim.

·the discretion represents a right/privilege to the applicant.

·under section 8 of the Acts Interpretation Act this right/privilege is not affected by the subsequent repeal of the 1947 Act and remains available to the applicant and, in the circumstances, the discretion should be exercised in favour of the applicant.

8.      Section 148 is expressed in the following terms:

“Payment of mobility allowance

148(1) The Secretary shall determine in writing that payments of mobility allowances are to be made on particular days during any period.

(2) Subject to sub-section (3), where a mobility allowance is granted, it shall be paid –

(a) if the day on which the claim was lodged is an allowance pay day – from that day; and

(b) in any other case – from the first allowance pay day occurring after the day on which the claim was lodged”

9.      The applicant’s representative takes the view that subsection (1) of section 148 creates the option of paying the allowance prior to the making of a claim. Such a view is in direct conflict with subsection (2) of the section in so far as it provides that payment can only occur at a time on or after the lodgement of a claim. Subsection (1) does no more than instruct the Secretary to determine the particular days when the payments are to be made. Bearing in mind the provisions of subsection (2), the Tribunal is satisfied that the days so determined are not capable of preceding the lodgement date of the claim. Support for this opinion is forthcoming from sections 158 and 159 of the 1947 Act which provide that the grant or payment of mobility allowance shall not be made except upon the making of a claim and that the claim shall be in writing and in accordance with a form approved by the Secretary.

10.     It should be acknowledged that the applicant, when forming the view that a claim was not required, placed considerable reliance upon statements made by the Full Federal Court in Secretary, Department of Social Security v O’Connell  and Secretary, Department of Social Security v Sevel (1992) 28 ALD 626. At page 634, the learned judges made the following observations regarding the 1947 Act and certain of its provisions:

“So the scheme of the Act, in relation to those various pensions, benefits and allowances, was to require a formal claim and a decision to grant that claim before any payment might be made. Once the claim was granted, payment was made in accordance with the ensuing provisions of Part XVIII.

Most parts of the Act used the concept of an entitlement to a pension, benefit or allowance being created by the grant of a claim. But not all did so. An example of a different scheme was provided by Part XIV, relating to sheltered employment of allowances. There was no need for a claim for such an allowance. Section 140 provided that, where the secretary was satisfied of certain things, he “may direct that paid employment provided at those premises by the organisation is for the purposes of this part, sheltered employment”. A person engaged in sheltered employment was qualified to receive a sheltered employment allowance: s 141(1). Under some circumstances “the Secretary may direct that the person or benefit should be paid” to a person qualified to receive a sheltered employment allowance rather than that it be paid to the organisation” s 141(2). Similarly, Part XV provided for payment of mobility allowances upon the determination of the Secretary that payment ought to be made, without the prior grant of a claim: see s 148.” (emphasis added)

11.     As stated by the Court, there are two preliminary steps to the payment of the pension, benefit or allowance: first the lodgement of a formal claim and secondly a decision to grant the claim. Two exceptions to that practice are then noted. The first relates to sheltered employment allowances where no claim is needed. The second pertains to the payment of mobility allowance without the “prior grant of a claim”. Contra to the views expressed on behalf of the applicant, the Court did not espouse that payment of mobility allowance could be made without the lodgement of a claim.

12.     The Tribunal concludes that subsection 148(1) of the 1947 Act does not provide the discretionary power sought by the applicant. Nor, in any event, does the Tribunal accept that, in lodging a claim, deemed or otherwise, after the repeal of the 1947 Act, the applicant derived a right or privilege under that enactment.

13. Reference is made to the applicant’s additional submission that a deemed claim arose when she initially took up employment with the Commonwealth Public Service and, by implication, that she was entitled to payment of the mobility allowance as from 2 November 1992. Not only does Part 2.21 – Mobility Allowance - of the 1991 Act make no mention of deemed claims, section 1040 of that Part again points to the need for a proper claim. Proper claim is defined in section 1041 to be a claim made in writing and in accordance with a form approved by the Secretary.

14.     In summary, the Tribunal finds that the applicant’s entitlement to be paid mobility allowance does not extend back beyond the 10 December 2002.

15.     For the reasons stated, the Tribunal affirms the SSAT decision of 2 February 2004.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Trowse (Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  21 June 2004
Date of Decision  29 July 2004
Counsel for the Applicant         Ms M. Riley
Solicitor for the Applicant          Welfare Rights Centre (SA) Inc
Counsel for the Respondent     Mr J. Kearney
Solicitor for the Respondent     Service Recovery Team Centrelink