MICHAEL KOPRIVNJAK and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 285
•27 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 285
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1177
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL KOPRIVNJAK Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S E Frost, Member Date27 April 2009
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for the purpose of assessment as to whether the Applicant was, at any time prior to 29 November 2006, qualified for Newstart Allowance. In undertaking that assessment, the Respondent is directed to note that, subject to the Applicant’s qualification for the allowance, the Applicant is taken by s 13 of the Social Security (Administration) Act 1999 to have made a claim for Newstart Allowance on 24 November 2004. ................[sgd]..............................
Mr S E Frost
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – Applicant notified Centrelink of an intention to claim newstart – Centrelink had no record of the lodging of a claim within 14 days of that notification – claim made two years later – qualification for newstart accepted on lodgement of second claim – Applicant seeks payment of newstart from date of original notification – whether claim lodged within 14 days of original notification – decision set aside – matter remitted to Secretary
Social Security Act 1991 – s 23
Social Security (Administration) Act 1999 – s 11, 16, 41, Schedule 2
REASONS FOR DECISION
27 April 2009 Mr S E Frost, Member Introduction
1. It is not disputed that Michael Koprivnjak has had an ongoing entitlement to Newstart Allowance since 29 November 2006.
2. Mr Koprivnjak, however, says that he should have been receiving the allowance for two years prior to that date.
3. Mr Koprivnjak says that in December 2004 he attended a seminar for Newstart applicants at the Chatswood branch of Centrelink. He says that he lodged a claim for Newstart Allowance straight after attending the seminar. Centrelink, however, has no record of his attendance at any seminar, and no record of any claim lodged around that time. The only claim that it can find is the one that he lodged in late 2006.
4. Mr Koprivnjak says that he did everything that Centrelink officers asked him to do after he made contact with the Department in late November 2004, and yet they have consistently refused to acknowledge his entitlement to Newstart from any date earlier than 29 November 2006. His case has been reviewed internally by Centrelink, and also by the Social Security Appeals Tribunal (“SSAT”). His claims have been rejected at every stage. He now seeks review in this Tribunal.
The issue
5. The simple issue is whether Mr Koprivnjak is entitled to Newstart Allowance prior to 29 November 2006. That will depend on whether he lodged a claim for Newstart in December 2004, or at any other time prior to November 2006.
The legislation
6. The relevant provisions are found in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
7. The general rule is that a person who wants to be granted a social security payment must lodge a claim: s 11 of the Administration Act. (Newstart Allowance is a “social security payment”: s 23 of the Act.)
8. Social security payments are payable to a person from the person’s “start day”: s 41 of the Administration Act. Subclause 3(1) in Schedule 2 to the Administration Act explains the general rule for a person’s “start day”:
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.
9. If a person contacts the Department in relation to a claim, and the person is qualified for the payment, and the Department gives a written notice acknowledging the contact, and the person lodges a claim not more than 14 days after the contact was made, then the claim is taken to have been made on the day that the person first contacted the Department: s 13 of the Administration Act.
10. Section 16 of the Administration Act is headed “How to make a claim”. It provides relevantly as follows:
(1) A person makes a claim for a social security payment or a concession card:
(a) by lodging a written claim for the payment or card; or
(b) …
(2)A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
(3)…
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
11. Subsections (5) to (8) are not relevant.
Background
12. Mr Koprivnjak contacted Centrelink by phone on 24 November 2004 regarding a claim for Newstart Allowance (T7-25). During that conversation he indicated that he had last worked on 12 November 2004 (T7-24).
13. Centrelink sent Mr Koprivnjak a letter dated 24 November 2004, confirming that he had indicated an intention to claim Newstart Allowance, and informing him that he had been booked in for an information seminar to take place at the Chatswood Centrelink office on 2 December 2004 (T8-26). The letter also included the following information:
We confirm that Centrelink was contacted on 24 November 2004 about your intention to claim. Your contact date of 24 November 2004 will be used as the day on which your claim was made if you were qualified on this date and lodge the enclosed Preliminary claim form by 8 December 2004. If you do not return a signed claim form on or before 8 December 2004 it may result in any payment made to you being paid from a later date. Please contact Centrelink immediately if you have any difficulty with this. (emphasis added)
14. On the file copy of the letter dated 24 November 2004 the following text appears (after the name of the Centrelink Manager on whose behalf the letter was issued, and the date) (T8-27):
PRELIMINARY CLAIM
Type of payment: Newstart Allowance
Name:
Sex: Date of Birth: …. / …. / ….
Home Address:
Postal Address:
Phone Number:
Country of Birth:
Marital Status: Single
This preliminary claim has been read by me / to me and the information I have given in this preliminary claim is complete and correct.
Customer’s Signature:
Date:
There are penalties for deliberately giving false or misleading information.
Please complete, sign and lodge this Preliminary Claim with Centrelink on or before 8 December 2004.
Please return any requested modules/information at the time of your new claim interview.
15. It will be noted that the only two pieces of information that were completed by Centrelink before the letter issued to Mr Koprivnjak were the “Type of payment” (Newstart) and Mr Koprivnjak’s marital status (Single). The rest of the form was blank, evidently to be completed by Mr Koprivnjak himself.
16. Mr Koprivnjak did not attend the seminar on 2 December 2004. A Centrelink file note at T7-23/24 records his non-attendance. File notes at T7-23 indicate that Mr Koprivnjak made contact with Centrelink on 3 December 2004, and that he was then booked to attend an alternative seminar on 6 December at 2:30 pm. A note on his file, also at T7-23, indicates that this seminar was cancelled, and replaced with a new booking for 1:30 pm on the same date. An annotation made on 8 December 2004 says that this latter appointment was “Finalised, by the System”, although there is yet a further note recording that Mr Koprivnjak did not attend the 6 December seminar either. These entries in the Centrelink file are, at best, confusing.
17. On the basis of the information that Mr Koprivnjak gave to the SSAT, and mindful of these file notes (which the SSAT described as “fuzzy”), the SSAT concluded that he had in fact been booked into a morning seminar on 3 December 2004 (not the 6th), but because that seminar was oversubscribed, he had been asked to wait and attend, and he had in fact attended, an alternative seminar that afternoon. Before me, Mr Koprivnjak generally agreed with the SSAT conclusion, but pointed out that the date of the seminar that he attended was the 6th, not the 3rd.
18. At the hearing before me, Mr Koprivnjak tendered a bundle of documents that became Exhibit A2. The first page of that bundle is a photocopy of a Centrelink form entitled “Preparing for work – Information Seminar Checklist”. The form notes that it is “to be completed during an Information Seminar”. The person attending the seminar, identified as the “Job Seeker”, is to indicate, by ticking several boxes on the form, that various matters relating to ongoing Newstart obligations have been explained to him or her. The relevant boxes have been ticked, and the form has been signed by Mr Koprivnjak. The date below Mr Koprivnjak’s signature is shown as “03/12/04”. There is an “Office Use Only” box which has been initialled by a “Customer Service Officer”, and dated “03/12/04”, in what appears to be the same handwriting as the date below Mr Koprivnjak’s signature. That handwriting is quite distinct from Mr Koprivnjak’s.
19. On the second page of Exhibit A2, which Mr Koprivnjak says was originally the reverse side of the Information Seminar Checklist form, appears the following, handwritten material:
Monday 6th December 2004
Chatswood Centrelink.
20. Mr Koprivnjak says that this was written on the form by a Centrelink officer. The handwriting appears to be very similar to that of the person who wrote the date “03/12/04” on the face of the form.
21. The third page of Exhibit A2 is a photocopy of a document that bears a striking similarity to the “PRELIMINARY CLAIM” material set out in [14] above. It does not include the heading or the next line (which refers to Newstart Allowance), but the typed material on it is otherwise exactly identical to the material set out in [14] above, including the word “Single”, typed, next to “Marital Status”. The rest of the information entries were originally blank, although they have now been filled in, by hand, with Mr Koprivnjak’s personal details. The handwritten date is “6/12/2004”. The footer to the page quotes the Centrelink website address and the Centrelink tagline “giving you options”. It is also numbered as page 11. Unfortunately I have been unable to establish the location of the preceding ten pages, if they ever existed.
22. Mr Koprivnjak explained to me that these three pages of Exhibit A2 are copies of documents that he handed over to Centrelink in December 2004. None of them bears an official date stamp (such as would indicate that they had been received and acknowledged by Centrelink). Nevertheless, he insists that he gave the originals to Centrelink, and it is these documents that ground his claim to be paid Newstart from 24 November 2004.
23. None of the documents that became Exhibit A2 had been provided to the Secretary’s representative prior to the hearing before me. They had not been produced to the SSAT. Mr Lozynsky, for the Secretary, complained that this amounted to an “ambush” by Mr Koprivnjak. He pointed out that, if they had been produced earlier, then he could have arranged for Centrelink to look into the matter more fully. Instead, we were left in a position where Mr Koprivnjak produced copies of documents that he said he had lodged with Centrelink, but Centrelink had no record of having received them.
24. Asked why he had produced these documents only at this late stage, Mr Koprivnjak said that he had only recently found them.
25. In these circumstances, and bearing in mind Mr Lozynsky’s complaint, I gave Mr Lozynsky an opportunity to question Mr Koprivnjak about the documents, and to make submissions. He did both. I also asked Mr Lozynsky to check Centrelink’s records once again for any sign of these documents. The search was fruitless.
Findings of fact
26. Against that background, and on the basis of the evidence before me, including the answers that Mr Koprivnjak gave to Mr Lozynsky’s questions, I make the following findings:
(a) Mr Koprivnjak contacted Centrelink by phone on 24 November 2004 regarding a claim for Newstart Allowance. During that discussion Mr Koprivnjak supplied various items of information including information about his assets, cash on hand, cash in bank accounts, when he last worked, and whether he had a tax file number (T7-24);
(b) Centrelink notified Mr Koprivnjak, by its letter dated 24 November 2004, that he should attend an information seminar on 2 December 2004, and that, if he lodged a Preliminary Claim by 8 December 2004, he would be paid Newstart Allowance from 24 November 2004, provided he was qualified for the allowance on that date;
(c) Mr Koprivnjak failed to attend the information seminar on 2 December 2004;
(d) On 3 December 2004, Mr Koprivnjak had a face-to-face interview with a Centrelink officer. During that interview he provided the further information or documentation that he had been asked for in the letter dated 24 November 2004, including proof of identity and an employment separation certificate (T8-26 and Transcript page 63);
(e) At the end of that interview he handed over to a Centrelink officer the completed “Information Seminar Checklist” at Exhibit A2, page 1 (Transcript page 65);
(f) Mr Koprivnjak attended an information seminar at the Chatswood Centrelink office on 6 December 2004 (Transcript page 66);
(g) On 6 December 2004 Mr Koprivnjak handed over to a Centrelink officer the completed and signed “Preliminary Claim”, a copy of which is at page 3 of Exhibit A2 (Transcript page 37);
(h) The “Preliminary Claim” is “a form approved by the Secretary” for the purposes of s 16(2) of the Administration Act. I base this finding on the fact that it is the form that Centrelink told Mr Koprivnjak to lodge by 8 December 2004, that its content was included in the letter dated 24 November 2004 sent by Centrelink to Mr Koprivnjak, and that the form that he completed and (as I have found) handed over to Centrelink appears, on its face, to be a Centrelink document;
(i) The Preliminary Claim was “delivered to a person apparently performing duties at a place approved for the purpose by the Secretary”: see s 16(4)(a) of the Administration Act. Despite the lack of formal proof, I take it to be self-evident that the Chatswood office of Centrelink is “a place approved … by the Secretary” for claim lodgement purposes.
27. I make the findings at (e) and (g), mindful of the fact that neither document bears a date stamp from Centrelink.
28. The question whether Mr Koprivnjak actually lodged these documents with Centrelink has been at the heart of the controversy between the parties. Despite a most thorough search within Centrelink, no copy of either document has been located. Nevertheless, Mr Koprivnjak maintained that in each case the document was given to a Centrelink officer. He gave a very detailed and plausible description of his interactions with Centrelink in November and December 2004. I accept his version of events.
29. For the sake of completeness, some comment is warranted in relation to the apparent failure of Mr Koprivnjak to correct what he must have regarded as Centrelink’s mistake in not paying him Newstart Allowance for a period of two years from November 2004. One major factor is that he was under considerable stress, having experienced a significant personal trauma shortly before November 2004. He did take some action, including over-the-counter discussions with Centrelink officers, but he did not achieve much because he was consistently told that he was not entitled to any payments because he had not attended the seminar, or he had not lodged a claim form, or both. He said that he also wrote to the Minister, although he did not provide the Tribunal with a copy of any such correspondence. He tried to have a review undertaken of Centrelink’s failure to pay him Newstart, but the difficulty is that Centrelink had not made a decision that was capable of review by the SSAT. Centrelink did not regard Mr Koprivnjak as having made a claim; there had been no assessment of his entitlement; there was nothing, therefore, that the SSAT could review. Eventually the matter came to the SSAT, but only after his later claim was lodged in late 2006, when a decision was made that payments were to be made from 29 November 2006, and not from an earlier date. With the benefit of hindsight, it might have been better for Mr Koprivnjak to lodge, much earlier, a further claim for Newstart Allowance than to continue to argue that he had already lodged one.
Decision
30. Since I have reached a conclusion that is different from the one reached by the SSAT, it is appropriate that I set aside the decision of the SSAT. However, it is not appropriate that I substitute a decision that Mr Koprivnjak is entitled to Newstart Allowance from 24 November 2004.
31. Centrelink’s position has been that Mr Koprivnjak did not lodge a claim for Newstart Allowance by 8 December 2004. For that reason there has been no assessment as to whether, on 24 November 2004, Mr Koprivnjak was “qualified for the payment” (see [8] and [9] above). There has also been no assessment as to whether, if he was qualified on that date, he remained qualified during the following two years.
32. This Tribunal is a tribunal of review. It does not make decisions at first instance; it reviews specified decisions that have been made by other administrative decision-makers. It is not empowered, and it is not equipped, to assess whether Mr Koprivnjak was, at any time prior to 29 November 2006, qualified for Newstart Allowance. That is a function entrusted to the Secretary.
33. Accordingly, the appropriate decision for me to make is to set aside the decision under review, and remit the matter to the Secretary for assessment as to whether Mr Koprivnjak was, at any time prior to 29 November 2006, qualified for Newstart Allowance. That assessment is to be undertaken consistently with my finding that, subject to his qualification for the allowance, Mr Koprivnjak is taken by s 13 of the Administration Act to have made a claim for Newstart Allowance on 24 November 2004.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member
Signed............................[sgd]...................................................
Shanthi Silva, AssociateDates of Hearing 08 October 2008, 28 January 2009
Final Submissions received 30 March 2009
Date of Decision 27 April 2009
Applicant Self-represented
Solicitor for the Respondent Mr G Lozynksky, Centrelink Legal Services
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