MIA WESTBROOK and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 325

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 325

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5093

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIA WESTBROOK

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date of decision  30 April 2009

Date of written reasons       8 May 2009

PlaceWollongong

Decision For the reasons given orally at the conclusion of the hearing of this matter, the tribunal affirms the reviewable decision of the Social Security Appeals Tribunal made on 24 September 2008.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pensioner education supplement – claim lodged more than one year after studies commenced – no legislative provision to allow backdating beyond date of grant – no common law or statutory duty in Centrelink to advise of benefits available – decision under review affirmed.

Social Security Act 1991 ss 1061PA, 1061PJ

Social Security (Administration) Act 1999 ss 13(1), 30 of Schedule 2

Price and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 192

Scott v Secretary, Department of Social Security [2000] FCA 1241

REASONS FOR DECISION

30 April 2009 Ms Robin Hunt, Senior Member   

1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the tribunal to furnish a statement in writing of the reasons of the tribunal for its decision.

2.      The oral reasons for decision have been transcribed by an officer of the Administrative Appeals Tribunal. Whereas those reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the decision.

3.      An extract of the transcript is annexed hereto and furnished to the Applicant and to the Respondent as it contains the reasons for the tribunal’s decision.

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [11.05 am]

MS HUNT:     I would like to make an oral decision today …. Everything has been written down in the Secretary’s Statement of Facts and Contentions once the dates are corrected. 

I agree with Senior Member Isenberg in Price and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 192, where she referred to section 30 of schedule 2 to the Administration Act which I don’t think we’ve discussed. Section 30 says, that if you are claiming this supplement, where a person is qualified and a claim is made within 4 weeks of entitlement, that’s a possible way of getting an earlier commencement date but the fact is you didn’t apply within 4 weeks of commencement of your course in 2007 so that does not assist you.

And then section 13 of the Administration Act, which we have discussed, also allows for an earlier start date in limited circumstances. So where a written claim has been lodged 14 days after the Department has been contacted, a person is taken to have made a claim. That’s not just for this particular payment but for various social security payments.  There’s no dispute in your case about when you made the claim and it was backdated to the date of the earliest recorded conversation of 16 May 2007 and--

MS WESTBROOK:  2008.

MS HUNT: I mean-- sorry, I’m falling into the same error, 2008. And the Secretary or the Centrelink officers involved have backdated your claim to that date and I don’t think there’s any other legislative assistance that allows backdating to occur any sooner. So accepting that your contacting Centrelink about your entitlement to PES was during that conversation at Corrimal on 16 May 2008 and your lodging a formal application soon after that time, which was signed the 20 May and date stamped the 22nd, you are not entitled to the start date provisions of section 30, to which I made brief reference before, because the course started the previous year.

You did however come within the start date provisions of section 13(1) and your entitlement to the supplement was backdated to that contact date of 22 May 2008 and that is the earliest date available for backdating because of the legislative provisions.

And I further note that there is no common law duty on Centrelink. Ms Maclean has referred to the lack of statutory duty to advise and that’s true, there’s nothing in the social security provisions that puts an obligation on Centrelink employees to inform and advise people that come to them, and the case of Scott v Secretary, Department of Social Security [2000] FCA 1241, which was a Full Court decision of Beaumont, French and Finkelstein JJ, also finds that there is no common law duty of care to advise of benefits which may be available, so that doesn’t assist your case either.

So I’m afraid that is the end of the matter and I hope it is of some comfort that we’ve gone through and tried to correct these dates at least, but there’s nothing I can do for you unfortunately.

I certify that the 3 preceding pages are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................
  Jennifer Wong, Associate

Date/s of Hearing  30 April 2009
Date of Decision  30 April 2009
Appearance for the Applicant   Self-represented

Solicitor for the Respondent     Ms J Maclean, Centrelink Legal Services and Procurement Branch