Nasra and Secretary, Department of Education, Science and Training
[2007] AATA 1527
•9 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1527
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° V 200700008
GENERAL ADMINISTRATIVE DIVISION ) Re VERA NASRA Applicant
And
SECRETARY,
DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Regina Perton, Member Date9 July 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
SOCIAL SECURITY – youth allowance – start date – backdating of payment - whether backdating possible for more than 14 days from date of claim form - no record of earlier application - decision affirmed.
Social Security (Administration) Act 1999 ss 11(1), 13(1), 16, 41, 42 and cl 3 of Schedule 2
REASONS FOR DECISION
9 July 2007 Regina Perton 1. Vera Nasra is a 19 year-old student who works part-time. Ms Nasra lodged a claim for youth allowance with Centrelink on 7 February 2006. Centrelink delivers services for the respondent. Centrelink initially determined Ms Nasra was eligible for youth allowance payments from 7 February 2006. Ms Nasra believes payments of youth allowance should be backdated to her 16th birthday on 15 March 2004. On 24 August 2006, she lodged an application for internal review with Centrelink. On 8 September 2006, an authorised review officer of Centrelink (ARO) backdated the payment to 31 January 2006, the date on which Ms Nasra contacted Centrelink about claiming youth allowance. Ms Nasra lodged an application for review with the Social Security Appeals Tribunal (SSAT). On 30 November 2006, the SSAT agreed with the ARO’s decision.
2. Ms Nasra applied to the Tribunal for review of the SSAT decision on 3 January 2007. She believes that youth allowance should be backdated to her 16th birthday, as that was the date that Centrelink stopped paying family tax benefit to her mother. Upon attaining the age of 16, a young person who meets the relevant criteria becomes eligible for youth allowance; and their family tax benefits cease. Ms Nasra did not realise that she was not being paid youth allowance as the moneys paid by Centrelink go into her father’s bank account. Ms Nasra also believes that she lodged a claim for youth allowance soon after her 16th birthday; but Centrelink has no record of such an application.
3. The issue before the Tribunal is whether Ms Nasra’s youth allowance can be backdated to a date earlier than 31 January 2006.
EVIDENCE
4. Ms Nasra believes that she lodged a claim form for youth allowance shortly after her 16th birthday. The difficulty, however, is that Centrelink has no record of the claim; nor does Ms Nasra.
5. Centrelink records indicate that Ms Nasra’s mother was sent a letter on 15 January 2004 concerning her daughter’s forthcoming 16th birthday. On 28 January 2004, Mrs Nasra contacted Centrelink and told it that Ms Nasra would be claiming youth allowance from her 16th birthday. Centrelink sent a letter to Mrs Nasra on 10 February 2004 advising her that she would not be paid family tax benefit in relation to her daughter Vera from 15 March 2004.
6. Ms Nasra and her father attended a Tribunal hearing on 7 May 2007. Ms Nasra recalled going to the Broadmeadows Centrelink office with her father after school in early April 2004, soon after her 16th birthday. She recalled standing in a queue, speaking to a female staff member and filling out a form. Ms Nasra said that when she finished Year 12, she contacted Centrelink to inform it of her proposed tertiary study. She was told by Centrelink that her name was not on the database. Ms Nasra then realised that payments had not been going into the pertinent bank account.
7. Mr Nasra said he was familiar with the need to make applications for allowances. He has eleven children, eight of whom have gone through the process of applying for youth allowance. Ms Nasra is the seventh child in the family. Mr Nasra said that he had taken pertinent documents with him to the Centrelink office as he knew that was required, given his daughter’s age. He recalled the visit to Centrelink with his daughter. He said that with various payments coming in and out of the bank account, he had not realised that her youth allowance payments had not come in.
8. In light of the evidence of Ms Nasra and her father, the Tribunal asked the Centrelink advocate, Ms Kayren Paul, to arrange for a search of the files of all persons with the surname Nasra at the Broadmeadows Centrelink office in case the Ms Nasra’s application had been misfiled. On 22 May 2007, Ms Paul informed the Tribunal that the records management unit had undertaken a search but had been unable to find the youth allowance claim.
CONSIDERATION OF THE ISSUES
9. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim. It requires that a written claim be lodged with Centrelink which must be in accordance with a form approved by the Secretary.
10. Section 41 of the Administration Act states that, unless another provision of the social security law provides otherwise, a social security payment becomes payable on the person’s start day. Section 42 states that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration Act. Clause 3(1) states that:
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.
11. Section 13(1) of the Administration Act provides:
For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
12. Centrelink’s records show that Ms Nasra telephoned the agency on 31 January 2006 and that Centrelink sent a letter and claim form to her on that day.
13. Under s13(1)(d) of the Administration Act, if a claim is lodged with 14 days from when Centrelink is contacted about a claim, the start date is backdated to the date of the contact. In this case, Ms Nasra contacted Centrelink on 31 January 2006, the claim was received on 7 February 2006 and eventually backdated to 31 January 2006.
14. Neither the Tribunal nor Centrelink has the authority to backdate payments for youth allowance to a date earlier than 14 days from the contact date. As Centrelink has no record of an earlier application form, the Tribunal is unable to assist Ms Nasra any further with this matter.
DECISION
15. The Tribunal affirms the decision under review.
I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Date of hearing: 7 May 2007
Date of final submission: 24 May 2007
Date of decision: 9 July 2007
Advocate for the applicant: Self-represented
Advocate for the respondent: Ms K Paul, Centrelink Legal Services Branch
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