MICHAEL JOHNSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 136

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 136

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5834

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL JOHNSON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Mr R G Kenny, Member

Date 5 March 2009

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

MEMBER

CATCHWORDS

SOCIAL SECURITY – pensioner education supplement – relevant time-frame for commencing payment – pensioner education supplement not payable prior to date of contact with Centrelink – decision affirmed.

Social Security Act 1991 (Cth), ss 23,1061PA
Social Security (Administration) Act 1999 (Cth), ss 11, 13, 41, schedule 2 cl 3, 30, 31

Administrative Appeals Tribunal Act 1975 (Cth), s 34J

REASONS FOR DECISION

5 March 2009  Mr R G Kenny, Member

BACKGROUND

1.      On 11 July 2008, Michael Johnson was in receipt of the disability support pension (“the pension”) and, to assist him in a study program, he made a claim for the pensioner education supplement (“the supplement”).  Both the pension and the supplement are forms of income support payable in accordance with the terms of the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”). On 31 July 2008, a Centrelink officer granted his claim with effect from 1 July 2008. On 7 August 2008, the officer affirmed that date of commencement. On 15 September 2008, an authorised review officer determined that the effective date for payment of the supplement was 10 July 2008. On 7 November 2008, that decision was affirmed by the Social Security Appeals Tribunal (“the SSAT”). Mr Johnson now seeks review of that decision by the Administrative Appeals Tribunal.

EVIDENCE

2.      Mr Johnson enrolled in the third year of a Bachelor of Science degree program at the University of Queensland.  He commenced study on 26 February 2008.  He contacted Centrelink on 26 March 2008 and discussed the supplement with a Centrelink officer.  A Centrelink file-note of that date records Mr Johnson as advising the officer that he did not wish to claim the supplement at that time, as he was not sure if he would be able to cope with the required hours of study.  In his evidence to the SSAT, he said that he did not wish to receive monies which might need to be repaid and he also said that he understood from the officer that he could make the claim in relation to the first semester as long as he made the claim by 31 July 2008.  He contacted Centrelink again on 10 July 2008 about claiming the supplement and made the claim on the following day.  He expected to have the payments backdated to the start of his program. 

CONSIDERATION

3. Provision is made in s 34J of the Administrative Appeals Tribunal Act 1975 for a matter to be conducted in the absence of the parties.  This requires the parties’ consent and the Tribunal to be satisfied that the issues for determination can be adequately determined in the parties’ absence.  I am satisfied that both of those requirements are met.  

4. The pension is a form of payment which attracts the supplement if the qualifying criteria in s 1061PA of the Act are met. It is not in dispute that those qualifying requirements were met by Mr Johnson when he commenced study on 26 February 2008.

5. The supplement falls within Chapter 2 of the Act and, in accordance with s 23 of the Act, it is a social security payment. Subsection 11(1) of the Administration Act provides that, for such a payment to be made, a claim must be made for it. The general rules for determining the start date of a social security payment and of the supplement, respectively, are set out in s 41(1) and cl 3(1) of schedule 2 to the Administration Act. These provide that, generally, the start date is the date of the claim. In Mr Johnson’s case, this would be 11 July 2008. However, exceptions to that general rule are provided for in the Administration Act.

6. The first exception is set out in s 13(1) of the Administration Act. This provides that, if a person contacts Centrelink in relation to a claim for a social security payment for which he is qualified, if he receives from Centrelink a written acknowledgement of the contact and if he then claims the payment within 14 days of the contact, payment may be made from the date of the contact. In Mr Johnson’s case, those requirements were met on 10 July 2008 and Centrelink has given him the benefit of that earlier start date. That exception does not embrace the Centrelink contact made by Mr Johnson on 26 March 2008. He was not given a written confirmation of that contact and did not make his claim within the requisite 14 day time-frame.

7. A further exception in the Administration Act is set out in cl 30 of schedule 2 thereof. It applies to a situation where a person who is qualified for the supplement on the date of claim makes the claim within four weeks of first becoming so qualified. Where those requirements are met, the start date for the supplement is the date on which the person became qualified. It is not disputed that Mr Johnson was qualified for the supplement when he made his claim, or that he became so qualified at the commencement of his study on 26 February 2008. However, his claim was not made within four weeks of that date and, accordingly, this exception does not apply to Mr Johnson.

8. The final exception is set out in cl 31 of schedule 2 to the Administration Act. It deals with a situation where a person’s course of education is a full year course that begins before 1 April of the year of the course and the person makes a claim for the supplement between 1 January and 1 April of that year. In this situation, the start date for the supplement may be 1 January. The contact by Mr Johnson with Centrelink on 26 March 2008 occurred in that period. However, he did not make his claim at that time. Rather, he claimed on 11 July 2008 which is not within the period nominated in the provision. Again, this exception does not apply to Mr Johnson

9.      Mr Johnson has written that he was advised by a Centrelink officer that he would be able to receive payments from the start of his study program, as long as he claimed by 31 July 2008.  Any such information would clearly be inconsistent with the relevant legislation.  As well as recording that Mr Johnson did not wish to make a claim at that time, the Centrelink file-note of 26 March 2008 notes that an explanation of the supplement qualifications and payment arrangements was given to him.  It is not known what that advice was but there is no basis for concluding that incorrect information was provided.  As can be seen from the foregoing, the legislation is not free of some complexity and it may well be that Mr Johnson misunderstood the information given.  Unfortunately, that legislation precludes payment of the supplement before 10 July 2008.

DECISION

10.     The Tribunal affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.

Signed: .............................[Sgd]................................................
  Matyas Kochardy, Research Associate

Hearing on the Papers              23 February 2009
Date of Decision  5 March 2009