Peel and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 192

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/978

GENERAL ADMINISTRATIVE DIVISION          )
           Re      THOMAS PEEL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date22 March 2002

Place Sydney
Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – date from which newstart allowance is payable to Applicant
Social Security (Administration) Act 1999 – sections 11, 13 and 16

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Thomas Peel ("the Applicant") for review of the decision dated 6 June 2001 of the Social Security Appeals Tribunal ("the SSAT") to affirm the decision made by a Centrelink delegate of the Secretary to the Department of Family and Community Services ("the Respondent") on 16 October 2000 to pay newstart allowance to the Applicant no earlier than 8 June 2000. That decision was affirmed by an authorised review officer on 10 November 2000.
At the hearing of the application the Applicant appeared on his own behalf and took part in the hearing by conference telephone. Mr Bernard Slattery represented the Respondent. The Applicant and his partner, Ms Sammut, gave oral evidence to the Tribunal by telephone. The following documents were in evidence:
Exhibit           Description    Date
T1-T19 pp1-88 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
A1      Applicant's Statement of Facts and Contentions          14 February 2002
R1      Respondent's Statement of Facts and Contentions   8 February 2002
R2      Respondent's supplementary submission         13 February 2002
background
On 22 June 2000 Mr Peel lodged a claim, on an approved form, for newstart allowance. The Respondent granted that allowance as payable from 8 June 2000. The Applicant requested the Respondent to backdate his claim for new-start allowance to March 1999, arguing that he had been eligible to receive new-start allowance from that date but had been denied the opportunity to claim the allowance. In a decision made on 16 October 2001 and affirmed by an authorised review officer on 10 November 2001, the Respondent decided not to backdate the Applicant's claim. The Respondent's decision was affirmed by the SSAT on 6 June 2001.
issues and legislation
The central issue in this application is the date from which newstart allowance can be paid to the Applicant.
Section 11 of the Social Security (Administration) Act 1999 ("the Act") relevantly provides:
"General rule
11(1) Subject to 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.
…"
There is no dispute that the Applicant lodged a claim for newstart allowance, in the approved form, on 22 June 2000.
Section 16 of the Act sets out the way in which a claim may be made:
"How to make a claim
16(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)       by making the claim in accordance with subsection (7).
16(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.
16(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
16(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.
16(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
16(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.
16(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
16(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section."
Section 13 of the Act provides for the circumstances in which a person may be taken to have made a claim for a social security payment on the day on which the person contacted the Department. Section 13 provides:
"13(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.
13(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.
13(3) For the purposes of the social security law, if:
(a)       the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b)       the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)       the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)       the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii)       throughout that period, the other person suffered from a medical condition; and
(iii)      the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;
the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.
13(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.
13(5) This section has effect subject to section 18."

applicant's evidence

The Applicant confirmed the chronology he had submitted to the SSAT. That chronology was summarised by the SSAT in its decision dated 6 June 2001 as follows (T2, pp5-6):
"7.      In Mr Peel's submission he set out a detailed chronology of his contacts with Centrelink, and his attempts to lodge a claim for newstart allowance. In late February 1999 he went to Centrelink in Brookvale and asked for a claim form. He was advised that he did not qualify for newstart allowance because he was not a permanent resident, and that when he did become a permanent resident he would have to wait a further 2 years before newstart allowance would be payable to him. This was contrary to advice that Mr Peel's partner had received from Sue Antcliffe, the then manager of the Administrative Law Section of Centrelink. Mr Peel was not given a claim form.
8.       On 9 March 1999 Mr Peel was granted permanent residency. He again contacted Centrelink on 12 March 1999 and was told that he would have to wait 2 years before he qualified for payment. The officer would not send him a claim form. He contacted again in late March and was given the same advice. He was not given a claim form.
9.        On 7 May 1999 Mr Peel's partner wrote to Sue Antcliffe about the conflicting advice they had been given. She did not get any response to this letter.
10.      Mr Peel contacted Centrelink on a number of occasions between May 1999 and April 2000, but says that he was repeatedly denied a claim form because of the newly arrived resident's waiting period.
11.      On 1 May 2000 Mr Peel's partner received a letter, dated 26 April 2000, from Mr George Lozynsky of the Advocacy and Administrative Law Team. The letter said, among other things, that Mr Peel was exempt from the 2 year waiting period and urged him to contact his local Centrelink office.
12.      On 8 May 2000 Mr Peel contacted Centrelink by telephone and asked for a claim form. He spoke to a woman named Sharn. He told Sharn about the advice he had received from George Lozynsky. Sharn told Mr Peel that despite this advice he was subject to the 2 year waiting period from the date he became a permanent resident. She was not aware of any exemption, which was applicable in Mr Peel's case. She confirmed this in a fax to Mr Peel, a copy of which is attached to his submission to the Tribunal.
13.      On 9 May 2000 Mr Peel had several contacts with Centrelink. He spoke to an officer on the telephone who suggested he lodge a claim form to test his eligibility. He also sent a fax to the Employment Services Section of Brookvale office of Centrelink seeking clarification of his eligibility for Social Security payments. Later in the day he attended the Brookvale office and spoke to someone on the newstart desk, but was refused a claim form without any reason being given.
14.      On 5 June 2000 Mr Peel spoke to Marilyn on the newstart desk. He showed her the letter from George Lozynsky, and asked her for a claim form. Marilyn declined to give Mr Peel a claim form, but said that she would speak to Joyce, and call him later that day. She called that afternoon and arranged for him to attend an interview at Brookvale office of Centrelink on 8 June 2000.
15.      On 8 June 2000 Mr Peel and his partner attended the interview with Marilyn. She gave him a claim form which she date stamped and asked him to return on 22 June 2000, when he would be seen by Joyce. Mr Peel asked about backdating the claim to March 1999, when he became qualified, and Joyce said she would date stamp the claim form 'as a start'.
16.      On 22 June 2000 Mr Peel again faxed the Employment Services Section at Brookvale office of Centrelink with details of the action he had taken, and requested information about how to have his claim backdated to March 1999. Later that day Mr Peel attended the interview with Joyce. Joyce took photocopies of various documents and said she would be passing Mr Peel's request to have his claim backdated on to her supervisor.
17.      On 27 June 2000 Mr Peel received his first newstart allowance payment, backdated to 8 June 2000. On 1 July 2000 he sent a fax to Joyce asking for advice about the progress of his claim for backdating. He did not get any response. He made a number of further enquires between July and October 2000, but on each occasion was told 'there is nothing new on the screen'. On 16 October 2000 he sent another fax to Joyce and stated that if he did not receive a response within four days he would take further action.
18.      On 25 October 2000 Mr Peel wrote to Elizabeth Hampton in the Administrative Law Section and asked how he could make a claim for Compensation for Detriment caused by Defective Administration.
19.      On 9 November 2000 Mr Peel spoke to Graham Eddie, authorised review officer, about his review of the decision not to backdate Mr Peel's claim for newstart allowance. Mr Eddie requested copies of letters, including those from the Administrative Law Section, which Mr Peel faxed to him immediately. He also wrote to Mr Eddie on the following day, outlining his attempts to obtain a claim form. Mr Eddie wrote back on 13 November 2000, informing Mr Peel that he had affirmed the decision not to backdate his claim for newstart allowance."
The Applicant said that on the occasions when he contacted Centrelink he said words to the effect of: "…I want to make claim but have had conflicting advice. I am seeking clarification about my entitlement…"
He said that despite taking Mr Lozynsky's letter with him to the Centrelink office he was told that he was not eligible. He also said that on more than 10 occasions in contacts with Centrelink he said: "I want a claim form" and was told "no". The Applicant said that at the Brookvale office of Centrelink claim forms are kept behind the counter and not at a place accessible to the public.
The Applicant said, in relation to his partner's illness, that he is unable to leave the house without his partner. He said her condition has improved, however, to the extent that he and she can go out together but to different shops. He said that he was not arguing that his partner's illness prevented him from making a claim.
In cross-examination the Applicant conceded that he had never, on any of the occasions he contacted Centrelink, asked to speak to an officer's supervisor. He stated that the reason he did not do so was because each time he made contact with Centrelink he received different advice. He said that he never obtained anything in writing from Centrelink about his eligibility and had not written to Centrelink on that subject.
Mr Peel also gave evidence of a conversation he had had with a Centrelink officer called Sharn at the Cairns Call Centre. Mr Peel stated that in this conversation he had said he wanted information about the newly arrived resident's waiting period and said that he was making inquiries about making a claim and had been told that he was eligible by Mr Lozynsky. The Applicant said that the officer told him that that was not the information that she had and she looked up some information on the computer. The Applicant said that he did not, on this occasion, give his date of birth or address.
ms sammut's evidence
Ms Sammut told the Tribunal that from her own experience, attendance at Centrelink offices is not always an easy interaction. She said that, in the course of this Tribunal's hearing of her own application concerning a preclusion period, she had a face to face conversation with Mr Lozynsky in which he advised her and the Applicant that the Applicant was eligible to receive newstart allowance. She also stated that the problem of conflicting advice that the Applicant had received was raised with Mr Lozynsky during the conference process pertaining to Ms Sammut's application.
Ms Sammut said that she could not see how the Applicant and she could have been any more aggressive about trying to resolve the question of the Applicant's eligibility for payments.
other evidence
Document T4 is a letter from Mr George Lozynsky to the Applicant's partner, Ms Sammut, dated 26 April 2000 advising that the two-year newly arrived resident's waiting period does not apply to the Applicant.
Document T16, page 48 is a letter dated 17 February 1999 from Ms Antcliffe, Manager, Administrative Law Section of Centrelink, to Ms Sammut, referring to her preclusion period and advising that there is no bar on her partner applying at that time for social security payments, notwithstanding that preclusion period. The letter also advised Ms Sammut to contact Mr Lozynsky if she had any queries. Document T7 is a letter from Centrelink manager, Graham Hill, dated 8 June 2000 to the Applicant advising of an appointment for the Applicant to talk to a Centrelink Customer Service Officer on 22 June 2000.
Document T9 is a letter to the Applicant dated 22 June 2000 from Centrelink advising the Applicant that he will be paid newstart allowance from 8 June. T16, page 49 is a letter to the Manager, Administrative Law Section of Centrelink from Ms Sammut dated 7 May 1999 in response to the Manager's letter to Ms Sammut of 17 February 1999. The letter deals, in part, with Ms Sammut's preclusion period but also refers to the manager's advice that there is no bar on the Applicant applying for social security payments and states (T16, p50):
"Details of the circumstances of the Applicant's partner have been made available to your department prior to the hearing and further discussed at the hearing. To confirm these circumstances once again, the Applicant's partner has been and is unable to work due to the need to take care of the Applicant and is not able to claim any social security payments."
Pages 72 to 75 of T19 are a facsimile message to the Applicant from "Sharn-Cairns Call Centre" dated 8 May 2000. The cover sheet of the facsimile message states "Information on 104 weeks waiting period as requested". The remaining pages appear to be extracts from an internal Centrelink publication and relate to the newly arrived residents waiting period. The extract includes the statement:
"From 4 March 1997, most newly arrived permanent residents have to wait 104 weeks before they can access the majority of allowances and benefits."
Attached to Exhibit R2, the Respondent's Supplementary Submission to the Tribunal, is a collection of Customer Record Access Monitor Reports ("CRAM reports"). The CRAM reports purport to record access by Centrelink officers to a customer's record. The reports attached to Exhibit R2 are in respect of both the Applicant and his partner. The reports show a number of occasions from 11 February 1999 to 22 June 2000 where the Applicant's computer record has been accessed by Centrelink officers. The reports also show that on each of those occasions the Applicant's partner's record was accessed at the same, or at approximately the same, time. The record also shows only one record of the Cairns Call Centre operator accessing the Applicant's record.
submissions
The Applicant submitted, in essence, that from 12 March 1999 he had repeatedly attempted to make a claim for newstart allowance and that it was the fault of the Respondent that those attempts were not acknowledged until 8 June 2000. The Applicant also submitted that the CRAM report is evidence only of his records being accessed by Centrelink officers and not evidence of a failure by him to make contact. In this regard he referred to the facsimile to him dated 8 June 2000 from the Cairns Call Centre which provides information that was requested by him on that date and the absence of any record on his CRAM report of his record being accessed on 8 May 2000.

The Respondent submitted that the Applicant fails to satisfy the criteria set out in section 13 (1), (2), and (3) of the Act for deeming his claim to have been made earlier than the date of lodgement. In this respect the Respondent relied on the failure of the Applicant to lodge a claim prior to 22 June 2000 and the absence of any adverse effect on the Applicant's ability to lodge a claim by his partner's medical condition.
The Respondent also relied on the CRAM reports tendered in evidence to the Tribunal as establishing that the contacts alleged to have been made with Centrelink by the Applicant were not in fact made.
consideration
The Tribunal is satisfied, and it is not in dispute, that the Applicant lodged a claim for newstart allowance with Centrelink on 22 June 2000 and not before that date. The Tribunal is also satisfied that the Applicant contacted Centrelink on 8 June 2000 and expressed the intention to claim newstart allowance, and that this contact was acknowledged in writing by Centrelink by way of its letter dated 8 June 2000 (T7).
The Tribunal accepts the Applicant's evidence that he contacted the Cairns Call Centre on 8 May 2000 and was given, by facsimile message on that day, information relating to the two year newly arrived residents waiting period. The Tribunal also accepts the Applicant's evidence that his partner's medical condition did not interfere with his ability to make a claim for newstart allowance.
Section 11 of the Act provides that in order to be granted a social security payment a person must make a claim for the payment. Section 16 of the Act provides, among other things, that a person may make a claim for a social security payment by lodging a written claim for the payment or by making a claim in a manner approved by the Secretary. It is not in dispute that the Applicant made no written claim for newstart Allowance before 22 June 2000.
It is therefore necessary to look to the provisions of section 13 of the Act to establish whether the Applicant may be deemed to have lodged a claim for newstart allowance earlier than 22 June 2000.
Section 13(1) of the Act requires, among other things, that the Secretary give a person a written notice acknowledging that the Department has been contacted in relation to the making of the claim and that the claim be lodged within 14 days after the Department is contacted. The Tribunal has found that the Applicant lodged a claim for newstart allowance on 22 June 2000, having contacted Centrelink on 8 June 2000 with Centrelink acknowledging that contact in writing. Given that the claim was lodged by the Applicant within 14 days of the initial acknowledged contact with Centrelink, the Applicant is entitled to be paid from 8 June 2000.
Section 13(2) of the Act requires, among other things, a written notice from the Secretary acknowledging that the Department has been contacted in relation to the making of the claim in order for a person to be paid up to 13 weeks after the Department is contacted. Section 13(2) also requires that the person was suffering from a medical condition which had a significant adverse effect on the person's ability to lodge the claim earlier. While the Tribunal has accepted that the Applicant made contact with the Centrelink Call Centre on 8 May 2000 and that that contact was acknowledged, there is no evidence that the Applicant was affected by a medical condition of the kind described in section 13(2).
Finally, section 13(3) requires, among other things, for a claim to be deemed to have been made up to 13 weeks before the claim is lodged, contact by the Applicant with the Respondent, acknowledged in writing, and that the medical condition of a person being cared for by the Applicant had a significant adverse effect on the Applicant's ability to lodge the claim earlier. The Tribunal has found, on the basis of the Applicant's own evidence, that his partner's medical condition did not interfere with his ability to lodge a claim.
It therefore follows that the earliest date on which the Applicant can be paid the newstart allowance is 8 May 2000.
Both the Applicant and the Respondent made submissions to the Tribunal on the effect of the Applicant's failure to request a review of the decision before 13 weeks after he received notice of the SSAT's decision. While the Tribunal noted these submissions, it was not necessary to consider the issue given the conclusion reached above.
Much was made, in submissions to the Tribunal by both parties, of the Applicant's contended attempts to obtain a claim form from the Respondent. The Applicant requested the Tribunal to recommend to the Respondent the payment of compensation under a claim for Compensation for Detriment caused by Defective Administration.
The Tribunal notes that Centrelink has agreed to pay an amount of compensation, being the payments that would have been made to the Applicant from 9 May 2001 to 7 June 2001. The Applicant submitted that compensation should be paid to cover the period from March 1999 to June 2001.
The Tribunal has no power to direct the Respondent to pay compensation. It is open to the Tribunal, however, to recommend to the Respondent that compensation be paid. Compensation has already been paid by the Respondent, albeit not in the amount considered appropriate by the Applicant.
It is unnecessary in this application, given the conclusions reached by the Tribunal on the application of the law to the facts already, to make findings of fact in relation to the contacts made by the Applicant with the Respondent and the availability or otherwise of claim forms. There is a paucity of evidence on both sides. The Applicant's recollection of the dates on which he made contact with Centrelink was precise but his recollection of the conversations that took place on those days and the officers to whom he spoke was somewhat vague. He conceded that over the many contended contacts he had with Centrelink, and the conflicting advice he said he received, he never asked to speak to an officer's supervisor. There is also the letter from the Applicant's partner to the Manager, Administrative Law Section of Centrelink dated 7 May 1999 stating that the Applicant "has been and is unable to work due to the need to take care of the Applicant [in this instance referring to the Applicant's partner, Ms Sammut] and is not able to claim any social security payments." This letter was in reply to a letter from the Manager, Administrative Law Section dated 17 February 1999 to Ms Sammut referring to her preclusion period and advising that there is no bar to her partner applying at that time for social security payments, notwithstanding that preclusion period.
On the other hand, the Respondent had, in rebuttal, only the CRAM reports for the relevant period. These are of limited probative value in determining whether contact of any kind was made, let alone the substance of any conversation during that contact.
It would be a matter of great concern if a direct request was made by the Applicant for a claim form and none was provided to him. He would be prevented thereby from testing his eligibility for payment and from having any adverse decision reviewed according to law. The contentions made by the Applicant, if correct, would justify careful investigation by the Respondent, well beyond the limited information yielded by the CRAM report. If, after such investigation, the Applicant's contentions were to be borne out, adequate compensation should be paid.
Determination
The Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: O. Caragianni            .....................................................................................
  Associate
Date of Hearing  15 February 2002
Date of Decision  22 March 2002
Applicant self-represented
Advocate for the Respondent Mr B Slattery

[2002] AATA 192

22 March 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Appeals

Statutory Interpretation

Social Security