MERRETT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 246

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 246

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0154

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL MERRETT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date30 March 2010

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

.....................[signed]......................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2010/0154

MERRETT

and

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

TUESDAY, 30 MARCH 2010

MR M. MERRETT appears in person
MR M. HESTER appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   The issue to be decided is whether the correct start date is, in fact, 29 July 2009.  Mr Merrett stated that he believes that the start date ought to be 11 February 2009, which is the date he commenced his leadership course, and he says that, basically, the literature put out by Centrelink, the pamphlet or the forms were misleading, in that they referred to the Pensioner Education Supplement eligibility criteria as being 20 hours a week, or a full-time course and, not unreasonably, Mr Merrett thought, ‘Well, my course is only a couple of days a month.  There’s no way that could be classified as full-time, so I’m not going to waste everybody’s time, including my own, in applying.’

It wasn’t until he was attending the course and spoke to several other people on the course that he was informed that others had, in fact, been receiving the Pensioner Education Supplement, notwithstanding that the course was only two days a month, and it transpired that, because the course was of a particular class – that was, a disability leadership type course – that Centrelink considered the course to be the equivalent of a full-time course and, as a consequence, people in Mr Merrett’s position who applied for Pensioner Education Supplement were successful.

There’s no real dispute that, on 29 July, when Mr Merrett became aware of all these matters, he approached Centrelink and made his intentions to claim the Pensioner Education Supplement known, and that was at the Yarra Centrelink office, and on 13 October 2009 he lodged his completed claim for Pensioner Education Supplement form at Centrelink, and on 19 October Centrelink issued him with a notice, and an arrears payment on 21 October 2009, and he was advised on 6 November that the original decision about paying him from 13 October 2009 was affirmed, and then Mr Merrett sought review by the Social Security Appeals Tribunal, which affirmed the original decision.

The relevant legislation is the Social Security (Administration) Act [1999], and the Social Security Act [1991].  In terms of the period between 11 February and 28 July 2009, he commenced the Diploma of Community Education at RMIT TAFE College on 11 February 2009.  I have already said that he did not lodge his claim between 11 February, or prior to that date, and 28 July.  Paragraph 16 of the Administration Act states that a person makes a claim for a social security by lodging a written claim and delivering it to the person approved by the Secretary or at a place approved by the Secretary.

Now, as far as the contact on 29 July 2009 is concerned, section 11(1) of the Administration Act says that a person who wants to be granted a social security payment must make claim for the payment in accordance with the division, and sections 13(1) and 13(2), subsection (3)(a) of section 13 of the Administration Act deal with how a person lodges a claim.  I find that he expressed an intention to claim the Pensioner Education Supplement on 29 July 2009.  However, he was not issued with a notice that is required pursuant to section 13(1)(c) of the Administration Act.

When he lodged his claim on 13 October 2009, a date that was within 13 weeks from the date after he expressed an intention to claim his payment on 19 July 2009, and I find that the failure to provide him with a notice under section 13(1) of the Administration Act constitutes special circumstance sufficient to warrant the exercise of discretion contained in section 13(3)(a) of the Administration Act, and it’s for that reason that I find that he is considered to have lodged his claim on 29 July 2009, and not when he actually physically lodged it in October 2009.  As far as the start date for payment is concerned, subsection 41(1) and section 42 of the Administration Act say that a social security payment becomes payable to a person on the person’s start date, and that’s worked out in accordance with Schedule 2, and which refers to when the claim is made, and Schedule 2 of Part 3 of the Administration Act provides for the possibility of backdating a start date.  Subsection[s] 30, 31 and 32 are the relevant subsections.

Now, as far as the appropriate start date of the supplement is concerned, it commenced on 11 February 2009.  He is considered to have lodged his claim on 29 July 2009 and, therefore, under Schedule 2 of Part 3, subsection 30 of the Administration Act cannot apply as the claim was not lodged within four weeks of him becoming qualified to receive the Pensioner Education Supplement on 11 February 2009; subsection 31 cannot apply, as the claim was not lodged prior to 1 April 2009, and subsection 32 cannot apply, as the course commenced prior to 1 July 2009.  So the applicable subsection is subsection 3(1) of the Administration Act, Schedule 2, and, therefore, the correct start date is 29 July 2009.

So, for those reasons, I find that the decision made by Secretary on 11 February 2010, to the extent that the Pensioner Education Supplement was to commence on the earlier date of 29 July 2009, is the correct date, and I affirm that decision, being the new decision under review.

END OF EXTRACT