Moore and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3966
•28 October 2021
Moore and Secretary, Department of Social Services (Social services second review) [2021] AATA 3966 (28 October 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3880
Re:Charles Moore
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 October 2021
Place:Brisbane
The application for review lodged on 4 May 2021 is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Deputy President Dr P McDermott RFD
CATCHWORDS
PRACTICE AND PROCEDURE – SOCIAL SECURITY – Seniors Health Card – applicant not eligible for seniors health card at time of claim – claim for seniors health card rejected – applicant sought review – application dismissed as having no prospects of success.
LEGISLATION
Administrative Appeals Tribunal Act 1957 (Cth), s 42B
Social Security (Administration) Act 1999 (Cth), ss 11, 14, 16, sch 2, cl 4
Social Security Act 1991 (Cth), ss 6A, 23, 1061ZG, 1061ZJA
CASES
Attorney-General v Wentworth (1988) 14 NSWLR 481
Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SECONDARY MATERIALS
Social Security Guide, 8.3.2, version 1.286, 20 March 2020
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 October 2021
BACKGROUND
The applicant was aged 65 years on 25 January 2021 when he lodged a claim with Centrelink for a Commonwealth Seniors Health Card (“a Seniors Health Card”).[1]
[1] Exhibit A, T-Documents, T4, pp 79-97.
Section 1061ZG of the Social Security Act 1991 (Cth) (“the Social Security Act”) provides for the qualification criteria for a Seniors Health Card. Relevantly, sub-s (1)(a) provides that a person is qualified for a Seniors Health Card on a day if, on that day, the person has reached the pension age. Section 23(5A) of the Social Security Act provides that a man born during the period of 1 January 1954 to 30 June 1955 reaches the pension age when he turns the age of 66 years.
It is not in contention that the applicant had not reached the relevant pension age when he applied for a Seniors Health Card on 25 January 2021. Unlike for some social security payments, there is no provision within the Social Security Act nor the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) (together “the social security law”) that allows a person to lodge an “early claim” for a Seniors Health Card. Likewise, s 14 of the Administration Act, the provision for “deemed claims”, does not apply in the applicant’s circumstances because he was not qualified for a Seniors Health Card on 25 February 2021 when he contacted Centrelink.
On 1 February 2021, Centrelink wrote to the applicant requesting documents concerning his identity and his and his wife’s finances.[2] On 19 February 2021, the applicant wrote a letter to Centrelink in which he asserted that such documents cannot be legally requested.[3] On 23 February 2021, Centrelink again wrote to the applicant requesting documents concerning his finances.[4]
[2] Exhibit A, T-Documents, T5, pp 98-100.
[3] Exhibit A, T-Documents, T6, pp 101-103.
[4] Exhibit A, T-Documents, T7, pp 104-106.
On 24 February 2021, Centrelink wrote to the applicant advising him that his claim for a Seniors Health Card was rejected on the grounds that he had not produced the documents that were requested on 1 and 23 February 2021.[5]
[5] Exhibit A, T-Documents, T8, pp 107-108.
On 3 March 2021, Centrelink wrote to the applicant again to advise him that his claim for a Seniors Health Card was rejected because he was “not of pension age, as required by the eligibility criteria for this card.”[6]
[6] Exhibit A, T-Documents, T9, pp 109-110.
On 4 March 2021, Centrelink wrote to the applicant to advise him that a decision of 25 January 2021 “not to pay you Commonwealth Seniors Health Card” was incorrect and that the decision of Centrelink is now that his claim for a Seniors Health Card “has been rejected as the claim was lodged prior to [him] turning age pension age and there is not provision for early claim lodgement for this card.”[7]
[7] Exhibit A, T-Documents, T10, p 111.
On 12 March 2021, the applicant lodged an application to the Social Services and Child Support Division of this Tribunal (“AAT1”) for review of the decision of Centrelink made on 4 March 2021.[8] On 16 March 2021, an Authorised Review Officer of Centrelink provided a formal review of the decisions dated 24 February 2021 and 3 March 2021.[9]
[8] Exhibit A, T-Documents, T1, pp 1-6.
[9] Exhibit A, T-Documents, T12, pp 117-121.
On 19 April 2021, AAT1 issued a decision affirming the Authorised Review Officer’s decision of 16 March 2021. The applicant has applied to the General Division of the Administrative Appeals Tribunal for a review of the decision of AAT1.
With his application form lodged on 4 May 2021, the applicant provided a statement outlining his contentions as to why Centrelink (and subsequently AAT1) was wrong to rejected his claim for a Seniors Health Card.[10] What appears to have been the applicant’s core contention is reproduced below without alteration:
The decision is an error in law, as the crown is bound to the issuance of the Seniors Health Card ( Act 2014) via the Centrelink Act 1979. This act binds the Chief executive and hence his employees to "issue the card" as a statutory entitlement when all conditions are met as defined within the Act of 2014.
As all conditions have been met this fact is not disputed, and there exists no ability for the crown via Centrelink Act to reject or place any conditions upon the issuance of the Seniors Health Card..[11]
[10] Exhibit A, T-Documents, T1, pp 3-6.
[11] Exhibit A, T-Documents, T1, p 4.
The Secretary has applied for the applicant’s application to be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) on the grounds that the application has no reasonable prospects of success.
SECTION 42B OF THE AAT ACT
Section 42B(1) of the AAT Act states:
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The Secretary relies on paragraph (b) of s 42B of the AAT Act.
The Secretary relied upon the remarks of French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22] where their Honours stated that “the criterion of a "reasonable prospect" of success has been understood in analogous statutory settings to mean a "real" rather than "fanciful" prospect.” Their Honours also cautioned at that “full weight must be given to the expression as a whole”[12] and that:
No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”.[13]
[12] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [60].
[13] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [58].
The Secretary also relied upon an extract of Attorney-General v Wentworth[14] in the decision of Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 at [14]. Proceedings may be regarded as frivolous or vexatious “... if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless”.[15]
[14] (1988) 14 NSWLR 481 at 491.
[15] Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 at [14].
QUALIFICATION FOR A SENIORS HEALTH CARD
Section 1061ZG(1) of the Social Security Act provides for several criteria for qualification for a Seniors Health Card. It provides:
Subject to subsection (2) and sections 1061ZJA and 1061ZJB, a person is qualified for a seniors health card on a day if, on that day, the person:
(a)has reached pension age; and
(b)is an Australian resident or a special category visa holder residing in Australia; and
(c)is in Australia; and
(d)satisfies the seniors health card income test; and
(e)is not receiving a social security pension or benefit; and
(f)is not receiving a service pension, income support supplement or a veteran payment; and
(g)is not subject to a newly arrived resident’s waiting period.
The conjunction “and” connecting each of paragraphs (a)-(g) implies that each criterion must be satisfied for a person to be qualified for a Seniors Health Card on a particular day.
Subsection (2) of 1061ZG of the Social Security Act provides for specific circumstances in which a person is not qualified for a Seniors Health Card, none of which are relevant to the applicant’s application. Likewise, ss 1061ZJA and 1061ZJB of the Social Security Act do not apply in the applicant’s circumstances.
SUBMISSIONS CONSIDERED
In his application for review of Centrelink’s decision to reject his claim for a Seniors Health Card, the applicant submitted that Centrelink “has no authority to deny a [statutory] right, in the absence of any explicit condition in the [statute]”.[16] However, the applicant had no statutory right to be issued a Seniors Health Card at the time that Centrelink rejected his claim because he had not yet reached the relevant pension age.
[16] Exhibit A, T-Documents, T1, p 3.
The applicant has submitted that the Secretary was bound to issue a Seniors Health Card to him upon him meeting the eligibility criteria when he turned 66 years of age.[17] Whether the applicant has in fact met all of the eligibility criteria set out in s 1061ZG(1) of the Social Security Act is a matter for the Secretary to determine upon the applicant making a proper claim for a Seniors Health Card. In any case, having reached the pension age, the applicant has satisfied the age criterion in paragraph (a) of s 1061ZG(1) of the Social Security Act.
[17] Exhibit C, Applicant’s submissions of 16 September 2021, at page 4 of 5.
The applicant has submitted that Centrelink “must, as bound by the Act, issue the card as is my statutory right which cannot be denied under any condition by centrelink as of [the day the applicant turned 66 years].”[18]
[18] Exhibit C, Applicant’s submissions of 16 September 2021, at page 4 of 5.
Section 1061ZJA(3) of the Social Security Act is the only provision in the social security law which allows for the automatic issue of a Seniors Health Card, and the provision only applies in limited circumstances. Section 1061ZJA of the Social Security Act does not apply in the applicant’s circumstances because sub-s (1) provides that the section only applies where a person was receiving a social security pension immediately before 1 January 2017 and the rate of that pension was nil on 1 January 2017 because of the operation of certain amendments to the Social Security Act. Furthermore, s 1061ZJA(3), the provision for the automatic issue of a Seniors Health Card, only applies where a person to whom the section applies was qualified for a Seniors Health Card on 1 January 2017. This is certainly not the case for the applicant because on 1 January 2017 he had not reached the pension age.
Section 11(1) of the Administration Act provides:
Subject to subsections (2) and (3) 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.
A “social security payment” is defined in s 23 of the Social Security Act and is distinct from a "concession card”, which is defined in s 6A of the Social Security Act and includes a Seniors Health Card. If the applicant wants to be granted a Seniors Health Card, he must make a claim in accordance with Division 1 of Part 3 of the Administration Act.
Section 11(3) of the Administration Act states that the requirement of a person to make a claim does not apply to a Seniors Health Card that the Secretary must issue to a person under ss 1061ZJA(3) or (4) of the Social Security Act; but, as I have earlier stated, s 1061ZJA of the Social Security Act does not apply in the applicant’s circumstances.
Section 16 of the Administration Act provides for how to make a claim for a social security payment or a concession card. Subsection (1) provides that person makes a claim for a payment or a concession card by lodging a written claim for the payment or card. Subsection (2) provides that a written claim for the purpose of sub-s (1) must be in accordance with a form approved by the Secretary.
Centrelink cannot issue a Senior Health Card to the applicant until he makes a proper claim in writing in accordance with the form approved by the Secretary.
The applicant has referred to Centrelink’s ability to process a claim 13 weeks before a person reaches the pension age.[19] In oral submissions, the applicant stated:
I posted in the original submission to the tribunal the terms and conditions that are on Centrelink’s Act website which says, you may claim after 12 weeks before your entitled date. And the reason for that is (indistinct) statutory requirement requires that cards be issued (indistinct) on or before [the day the applicant turned 66 years].[20]
What the applicant is alluding to is the ability for a person to lodge an early claim for a benefit. The Social Security Guide states with respect to early claims: “A person who is not qualified on the initial date of claim can become qualified within a 13 week period without reclaiming.”[21] The provisions concerning early claims are set out in cl 4 of sch 2 to the Administration Act. Those provisions refer only to early claims for social security payments. A Seniors Health Card is a concession card as defined in s 6A of the Social Security Act, not a social security payment within the meaning set out in s 23 of the Social Security Act. There is no provision within the social security law for a person to make an early claim for a concession card.
Is there any provision in the social security law that would permit the Secretary to issue a Seniors Health Card to the applicant without him making a new claim?
[19] Exhibit A, T-Documents, T2, p 43.
[20] Transcript, pp 24-25.
[21] Department of Social Services, Social Security Guide, version 1.286, 8.3.2 Start days for early claims.
As I have earlier mentioned, s 14 of the Administration Act provides for circumstances where a person can be deemed to have made a claim for a concession card. However, within the provisions of s 14, the person must have been qualified for the concession card on the day on which he contacted Centrelink in order for the person to be taken to have made a claim. This was not the case for the applicant when he submitted his forms with Centrelink on 25 January 2021 because he had not reached the pension age on that date. Because he was not qualified for a Seniors Health Card on 25 January 2021, it is not possible for the deemed claim provisions of s 14 of the Administration Act to apply to the applicant’s contact with Centrelink on 25 January 2021. The same is true with respect to his contact with Centrelink on 19 February 2021. Furthermore, there is no evidence before me that the applicant is in a class of persons to whom the Minister for Social Services has determined that s 14 of the Administration Act applies.[22] Even if the applicant was qualified for a Seniors Health Card at a time when he contacted Centrelink, he cannot be deemed to have made a claim pursuant to s 14 of the Administration Act owing to him not being in a class of persons specified in the Minister for Social Services’ determination.
[22] Minister for Social Services (Cth), Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018 (29 June 2018).
CONCLUSION
The applicant stated in oral submissions that the legislation “cannot bind any citizen to any performance. I don’t have to apply for anything.” It is certainly true that the applicant is not obliged to apply for anything. But if the applicant wishes to enjoy the benefits of a Seniors Health Card, he must first make a claim in writing in accordance the requirements of s 16 of the Administration Act. Once the applicant has made a claim in writing in a form approved by the Secretary can Centrelink begin the process of determining whether he satisfies the eligibility criteria for a Seniors Health Card set out in s 1061ZG(1) of the Social Security Act.
Centrelink’s decision to reject the applicant’s claim for a Seniors Health Card lodged prior to him reaching the pension age was certainly correct.
It is not possible for this Tribunal to grant the applicant a Seniors Health Card because he has not made a proper claim for the card at a time when he was eligible for the card. Even if the Tribunal were to consider that the applicant had made a proper claim for a Seniors Health Card, it is still a matter for Centrelink to undertake its process of determining whether he satisfies the qualification criteria set out in s 1061ZG(1) of the Social Security Act. If the Tribunal were to set aside the decision of Centrelink and remit the matter to the Secretary with a direction that the applicant has reached the pension age, the applicant would still have to provide information to Centrelink about his and his wife’s finances. Furthermore, the applicant would not be entitled to any of the benefits of a Seniors Health Card accrued prior to him being issued the card because he was not qualified for the card at the time of his claim (because the “start day” provision in cl 3 of sch 2 of the Administration Act would not apply).
I am satisfied that there is no legitimate purpose in the applicant pursuing his application for review. If the applicant wishes to avail himself of the benefits of a Seniors Health Card, he should make a claim with Centrelink. The representative of the Secretary has quite properly advised the applicant of his right to make a claim now that he has reached the pension age. His belief that he is entitled to automatically be issued with a Seniors Health Card upon reaching the pension age is mistaken.
I am satisfied that the applicant’s application for review has no reasonable prospects of success.
For these reasons I dismiss the application for review lodged on 4 May 2021.
To protect the identity of the applicant I have not disclosed his date of birth in these reasons.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 28 October 2021
Date(s) of hearing: 5 October 2021 Date final submissions received: 26 October 2021 Solicitors for the Respondent: Services Australia
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