PATRICK DWYER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 791

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 791

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0535

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICK DWYER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr T Schafer, Member

Date15 October 2009

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd]............................

Dr T Schafer
  Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – start day – deemed claim provision – whether claim made at an earlier date – Centrelink did not acknowledge receiving a claim on an earlier date – decision under review is affirmed

Social Security Act 1991 s 23

Social Security (Administration) Act 1999 s 11, 13, 16, 41, Sch 2 cl 3

REASONS FOR DECISION

15 October 2009 Dr T Schafer, Member       

Background

1.      On 10 October 2006, Mr Dwyer contacted Centrelink regarding a claim for newstart allowance.

2.      Subsequent to that, on 17 October 2006, Mr Dwyer contacted Centrelink to make a claim for newstart allowance.  On the same date, Centrelink sent Mr Dwyer a letter confirming that he had contacted Centrelink on 10 October 2006 and providing information relating to claiming newstart allowance.

3.      On 23 October 2006, Mr Dwyer contacted Centrelink and advised them that he had hand delivered a letter to the city office on 15 August 2006 which he said stated that he had returned from overseas and expressed his intention to claim payment.  Mr Dwyer stated that he was advised by Centrelink that someone would call him about his claim, but he did not hear from anyone as promised.

4.      Centrelink granted newstart allowance to Mr Dwyer from 10 October 2006 on the basis of his contact with Centrelink on that date.

5.      On 31 October 2006, Mr Dwyer requested that the date of commencement of his newstart allowance be reviewed.

6.      On 15 November 2006, the original decision was reconsidered by a Centrelink officer, who decided that it was correct.

7.      On 20 May 2008, an authorised review officer (ARO) also affirmed the original decision.  He could not find any evidence that Mr Dwyer had contacted Centrelink on any date prior to 10 October 2006.  Mr Dwyer stated to the ARO that he had provided a letter to Centrelink on 15 August 2006, which was addressed to “To whom it may concern” because he didn’t know to whom it should be addressed.

8.      On 2 July 2008, Mr Dwyer appealed the decision of the ARO to the Social Security Appeals Tribunal (SSAT).

9.      On 29 July 2008, the SSAT affirmed the decision of the ARO.  The SSAT was provided with a copy of a letter that Mr Dwyer claims was the letter provided to Centrelink on 15 August 2006.  The letter that Mr Dwyer provided to the SSAT was dated 21 August 2006 and was addressed to the Manager of Centrelink.

Issue

10.     The issue for determination by this Tribunal is whether Mr Dwyer’s newstart allowance can be backdated to 15 August 2006, or a date prior to 10 October 2006, which is the date from which his newstart allowance was granted.

Legislation

11. Newstart allowance comes within the definition of a social security benefit pursuant to section 23(1) of the Social Security Act 1991 (the Act).

12. A social security benefit further comes within the definition of a social security payment, also pursuant to section 23(1) of the Act.

13. Section 11 Of the Social Security (Administration) Act 1999 (the Administration Act) provides that before a social security payment is granted, a person must submit a claim in accordance with the Act.

14. Section 16 of the Administration Act sets out the form in which a claim is to be made.

15. Section 41(1) of the Administration Act provides that when a claim is made for a social security payment, that payment “becomes payable” on a person’s “start day”.

16. Clause 3 of Schedule 2 of the Administration Act provides that a person’s “start day” is generally on the day on which that person made a claim for payment, if they qualified for the payment.

17. Section 13(1) of the Administration Act provides:

(1)  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.

18. Section 13(2) of the Administration Act provides:

(2)  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, other than crisis payment or special employment advance; 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 payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)     the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

Consideration

19.     The first record of Mr Dwyer’s contact with Centrelink is on 10 October 2006.

20.     Although Mr Dwyer has claimed that he hand delivered a letter to Centrelink on 15 August 2006, there is no record of the letter having been received by Centrelink.

21.     Mr Dwyer told the ARO that the letter he gave to Centrelink was addressed to “To whom it may concern” and was presumably dated 15 August 2006.  This is inconsistent with the copy of the letter he provided to the SSAT, which was dated 21 August 2006 and addressed to the Manager of Centrelink.  I am not prepared to accept Mr Dwyer’s claims about the letter.  This is on the basis that Mr Dwyer has provided inconsistent evidence about the letter and there is no contemporaneous record that the letter was ever received by Centrelink. 

22.     Also, I note, Mr Dwyer did not contact Centrelink to follow up the letter for almost two months after the date he claims he delivered it, although Mr Dwyer did give a number of reasons to justify his failure to promptly contact Centrelink, including his prolonged recovery from an operation that took place on or about the time he says he lodged his letter with Centrelink.

23.     Little weight can be given to the written statements by Mr Dwyer's mother and sister, which Mr Dwyer admitted to helping to prepare.  Mr Dwyer's mother and sister were not called to give oral evidence in these proceedings.

24. If I were to accept that a letter was delivered to Centrelink on 15 August 2006, section 13(1) of the Administration Act requires a claim to have been lodged within 14 days of that date, that is, by 29 August 2006 at the latest, for the date of the claim to be deemed to be 15 August 2006. Mr Dwyer did not meet this requirement. However, section 13(2) provides a longer period to claim in specified circumstances. Mr Dwyer did not provide the Tribunal with any medical evidence that showed he was entitled to the benefit of the longer period to lodge a claim conferred by section 13(2). The Tribunal would have been willing to give Mr Dwyer the opportunity to file such evidence if the decision had turned on whether he could satisfy the Tribunal that he suffered from a medical condition which had adversely affected his ability to lodge a claim within 14 days.

25.     As to whether Mr Dwyer qualified for newstart allowance as at 15 August 2006, there were no submissions but I note that Mr Dwyer qualified for newstart allowance on 10 October 2006 and there was no evidence to suggest that his circumstances were relevantly different between 15 August 2006 and 10 October 2006 such that he would not have qualified for newstart allowance as at the earlier date.

26. The difficulty in this case is that even if I accepted that Mr Dwyer delivered a letter to Centrelink on 15 August 2006, a deemed date of claim of 15 August 2006 cannot apply because a requirement common to both sections 13(1) or 13(2) of the Administration Act was not satisfied, that is, the requirement that the Secretary give written acknowledgement of the contact on 15 August 2006. Neither this provision, nor the Act, confers any discretion to deem an earlier date of claim in circumstances where all the requirements have not been satisfied.

27. Given that Mr Dwyer’s first recorded contact with Centrelink was on 10 October 2006; and this contact was acknowledged in writing on 17 October 2006; and Mr Dwyer submitted a claim within 14 days of the contact, pursuant to section 13(1) of the Administration Act, Mr Dwyer is deemed to have made a claim for newstart allowance on 10 October 2006. Pursuant to Clause 3 of Schedule 2 of the Administration Act, the start day of Mr Dwyer’s newstart allowance is the day on which he is deemed to have made his claim which is, again, on 10 October 2006.

Decision

28.     For the reasons I have stated, the decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T Schafer, Member

Signed:         ...............[sgd].................................................................
  Associate

Date of Hearing  30 September 2009
Date of Decision  15 October 2009
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Ms R Prasad, Centrelink Legal Services and Procurement Branch