Pettinau and Secretary, Department of Social Services (Social services second review)

[2019] AATA 4976

Pettinau and Secretary, Department of Social Services (Social services second review) [2019] AATA 4976 (27 November 2019)

Division:GENERAL DIVISION 

File Number:           2019/0152

Re:Bernadette Pettinau

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member S Barton

Date:27 November 2019

Place:Perth

The Reviewable Decision of 10 December 2018 is affirmed.

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

Member S Barton

Catchwords

AGED PENSION – application for aged pension – submission of claim – claim lodged in a manner approved by the Secretary – Reviewable Decision affirmed

Legislation

The Social Security (Administration) Act 1999 (Cth) – ss 16(1)(a), 16(1)(b), 16(7), 41, 42, cl 3 of sch 2

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Department of Human Services, Guides to Social Policy Law: Social Security Guide, Version 1.258, Released 20 September 2019 – pt 8.1.1.20

REASONS FOR DECISION

Member S Barton

27 November 2019

BACKGROUND

1. This is a review of a decision made by the Administrative Appeals Tribunal (the Tribunal), Social Services and Child Support Division (the AAT1) on 10 December 2018, to affirm a decision to pay Mrs Bernadette Pettinau (the Applicant) age pension (AP) from 7 September 2017 (the decision).

2. The Applicant states that she attended Centrelink on 1 March 2017 with her partner, who successfully lodged his claim for the AP on this date. According to the Applicant she had effectively submitted a claim for AP on the 1 March 2017 because she believed the claim her partner had submitted was a ‘joint claim’ and because she had previously filled out the necessary paperwork.

   ISSUE

3. The issue to be decided by the Tribunal is whether the Applicant was correctly paid AP from 7 September 2017 or whether she was entitled to payments from 1 March 2017.

   MATERIAL BEFORE THE TRIBUNAL

4. The hearing took place on 14 October 2019.

5. The Applicant appeared in person and was self-represented.

6. The Respondent was represented by Ms Laura Hinwood, who appeared by telephone.

7. The Applicant gave oral evidence and was cross-examined.

8. The Tribunal admitted the following documents into evidence at the hearing:

   (a)email from the Applicant to the Tribunal dated 23 May 2019 (Exhibit A1);

   (b)email from the Applicant to the Tribunal dated 13 May 2019 (Exhibit A2);

   (c)s 37 documents (T documents) numbered T1 to T25 comprising 123 pages (Exhibit R1);

   (d)s 37 documents (Supplementary T documents) numbered ST1 to ST3 comprising 21 pages (Exhibit R2);

   (e)Respondent’s Statement of Facts, Issues and Contentions dated 18 June 2019 (Exhibit R3);

   THE LEGISLATIVE FRAMEWORK

9. The Social Security (Administration) Act 1999 (Cth) (the Act) provides the legislative basis for the claiming of social security payments. The manner of making a claim is detailed in
   s 16 of the Act, which states:

   (1)  A person makes a claim for social security payment or concession card:

   (a)  by lodging a written claim for the payment or card; or

   (b)  by making the claim in accordance with subsection (7).

   …

   (7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

10. Guidance to the Act is provided by the Guides to Social Policy Law: Social Security Guide, Version 1.258, released 20 September 2019 (the Guide). Part 8.1.1.20 of the Guide states:

    As a general rule, a claim for a payment must be:

    •in writing (includes by electronic means),

    •in an approved form,

    •completed,

    •signed by the claimant and if relevant, their partner, and

    •lodged in a manner approved by the Secretary (including by electronic means, in person or by mail delivered to a specified place).

11. As established by Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at pp 644-645, the Tribunal will apply Ministerial policy unless there are cogent reasons not to do so.

12. Sections 41 and 42 of the Act, in conjunction with cl 3 of sch 2 to the Act, provide that a social security payment becomes payable on a person's start date which is, in general,

    
    

    the date on which a claim is made or the date of contact if the claim is lodged within

    
    

    14 days of the said contact.

13. In summary, the Act and the Guide require the claimant to make a written application,

    
    

    in an approved form, which is lodged in an approved manner. 

    
    
    
    THE APPLICANT’S CONTENTIONS

14. According to the Applicant’s evidence in her written submissions (Exhibit A1; Exhibit A2) and at the hearing, on 28 February 2017 the Applicant visited a Centrelink office with her partner and a Centrelink consultant provided them with AP application forms.

    
    

    The Applicant states that when they returned the next day (1 March 2017) to submit the completed AP application forms a Centrelink consultant commenced photocopying the forms, however stopped midway through this process and instead directed them to a computer to make the applications.

15. The Applicant’s partner then proceeded to complete an application on the computer.

    
    

    The Applicant accompanied him, taking the view he was submitting a ‘joint claim’.

    
    

    After approximately one hour, the Applicant states that her partner began to get ‘stressed’ due to the noise in the Centrelink office, including ‘swearing’ by some of the clients. According to the Applicant, her partner, somewhat ‘frustrated’, thought the process was complete and they returned to the Centrelink consultant and advised them they had completed the form on the computer. The Applicant states that the Centrelink consultant advised them they could keep the paper application forms, which, by the Applicant’s own admission, they took home and subsequently discarded.

16. It was the Applicant’s consistent evidence that throughout the process of submitting an application on the computer, the Applicant assumed that an application for both herself and her partner had been submitted. The Applicant, according to her own evidence, mistakenly believed this to be a 'joint claim', submitted for both her and her partner.

    
    

    In support of her belief, the Applicant cited the extent to which their assets were closely entwined.

17. The Applicant and her husband continued to check the progress of the AP application.

    
    

    On 4 September 2017, the Applicant’s partner was granted the AP by the Department of Human Services (the Department), with effect from 28 February 2017 (Exhibit R1, pp 115-116). The Applicant contacted Centrelink on 4, 6 and 7 September 2017 (Exhibit R1, pp 88-91). The Applicant’s file note for 6 September records the Applicant’s view that she thought her claim had been lodged when her partner’s claim was lodged (Exhibit R1,

    
    

    p 90).

18. On 21 September 2017, the Applicant submitted a claim for the AP, which was granted on   11 November 2017, with effect from 8 September 2017, being the date of the creation of the online claim form. On 14 December 2017, the Applicant sought a review of the decision, seeking arrears of AP from 1 March 2017, being the date of submission of her partner's online claim, and having become aware through her contact with Centrelink detailed above, that no application had been on lodged on her behalf at that time.

19. On 4 May 2018, an Authorised Review Officer (ARO) of the Department set aside the decision, finding that AP should be paid from 7 September 2017 rather than 8 September 2017, given she had submitted claim within 14 days of her advising the Department of her intention to claim on 7 September 2017 (Exhibit R1, T22). 

    CONSIDERATION

20. The Applicant provided the Tribunal with a plausible account of her experience in attempting to submit a claim for the AP on 1 March 2017. It is reasonable to conclude that the Applicant and her partner, relatively unfamiliar with Centrelink and its processes and  unsettled by activity in the Centrelink office, failed to adequately comprehend what they, or at least the Applicant, were required to do. On the evidence provided there appears to have been a series of misunderstandings, which led to the Applicant erroneously assuming she had submitted an application for the AP. This led to an unfortunate outcome for the Applicant.

21. However, there are no provisions under the Act which provide a remedy for the particular circumstances described by the Applicant. The Act and the Guide plainly provide that the claimant for a social security payment must make a written application, on an approved form, which is lodged in approved manner (see above [9]-[10]). There is no evidence before the Tribunal that the Applicant did this on 28 February 2017 or 1 March 2017.

    
    

    The Applicant, in her evidence, has conceded as much.

22. The Tribunal recognises this outcome will be disappointing for the Applicant. While this is not a matter for the Tribunal, the solicitor for the Respondent suggested the Applicant may wish to explore any options she might have under the Commonwealth’s Scheme for Compensation for Detriment caused by Defective Administration.

    DECISION

23. The Tribunal affirms the decision under review.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Perth

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

Associate

Dated: 27 November 2019

Date of hearing:	14 October 2019
Applicant:	Self-represented
Counsel for the Respondent:	Ms Laura Hinwood
Solicitors for the Respondent:	Minter Ellison