Polis and Department of Family and Community Services

[2000] AATA 1086

DECISION AND REASONS FOR DECISION [2000] AATA 1086

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/562
GENERAL ADMINISTRATIVE  DIVISION)

Re:            FATIN POLIS

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
Date:             5 December 2000
Place:            Melbourne

Decision:The decision under review is affirmed.

. . . . . . . . . . . . . . . . . . . . . . . .
  Senior Member
SOCIAL SECURITY — special benefit — whether claim lodged — available funds — whether discretion should be exercised in applicant's favour
Social Security Act 1991 s. 731

Re Watts and Director-General of Social Security (1984) 6 ALN 201
Re Fraser and Secretary to the Department of Family and Community Services
[2000] AATA 745

REASONS FOR DECISION

5 December 2000   Mrs H.E. Hallowes, Senior Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 12 April 2000.   The SSAT reviewed a decision made on 12 October 1999 rejecting Ms Polis's claim for special benefit under the Social Security Act 1991 ("the Act"), which was affirmed by an authorised review officer ("ARO") on 22 November 1999. The SSAT set aside the decision under review and remitted the matter to Centrelink for reconsideration in accordance with directions that Ms Polis met the qualification and payability requirements for special benefit at the date of her claim, 4 October 1999 and that Centrelink assess the appropriate rate of special benefit to be paid to her from that date.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with a claim for job network assistance, signed by Ms Polis on 9 July 1999 and a claim for newstart allowance, signed by Ms Polis on 12 July 1999. The documents include material with respect to a claim for newstart allowance lodged by Ms Polis's partner, Mr L. Paulis, on 12 July 1999. That claim had also been rejected and Mr Paulis sought review by the Tribunal of the decision of the SSAT. A liquid assets deferment period of 13 weeks had been imposed on Mr Paulis with respect to the payment of newstart allowance and he referred to the decision made by the SSAT in respect of his claim in lodging his application for review. No reference is made on the application for review to the SSAT decision with respect to Ms Polis, but at the hearing, Mr Paulis asked to represent his wife and indicated to the Tribunal that she sought payment of special benefit from 12 July 1999 rather than from 4 October 1999 as directed by the SSAT.

3. In handwriting on the claim form for job network assistance, referred to above, is a notation "12/7/99 at 11:45 for wife".   Mr Paulis told the SSAT that Ms Polis attended a Centrelink office on that day in order to lodge the claim form for newstart allowance which she had completed.   She was given advice that she had no entitlement to payment and she left the Centrelink office without leaving the claim form.   The SSAT found that, whether or not Ms Polis lodged her claim for special benefit on 12 July 1999, she would not have been entitled to special benefit at that time.   The Tribunal notes the form (exhibit A1) was a claim for newstart allowance form, rather than a claim form for special benefit.  

4. Mr Paulis's contentions are supported by the record of a text of a telephone call which he said he made later that day, on 12 July 1999, a copy of the text being reproduced at T8, pages 34 and 35 of the documents as follows:

   . . .
   a/n enq. about all waiting period.   I explained as per record/second page on ndc/ & told him he is subject to waiting period as applied in time more than 1 year.   He said that wife is going to apply for SPL.   I told him she can't received SPL as avail. funds is more than $5000.00 Pls.   f/u possible o/p SPL as we paid her in 1998 – what was avail. funds at that time.   A/n said that intending to move to Melbourne & asked if that way can avoid LAWP as will spend money for moving.   I told him that is not unforseen circumstance. & LAWP has to be served although he can lodge appeal.  

There is also a file note dated 5 July 1999:  "enq re: how to apply again for newstart 05 Jul 1999 13:59".

1. The documents disclose that Ms Polis was born in Iraq on 11 October 1970.   At the time she completed her claim form on 12 July 1999 she was two and a half months pregnant and she was unable to work due to "sick from pregnancy".   She expected to be fit to return to work within two years.   Mr Paulis put to the Tribunal that Ms Polis's circumstances were special because of the difficulty she had with communication and her anxiety.

2. Subsection 731(2) of the Act provides:

   731.(2)     If:

   (a)a person makes a claim (in this subsection called the "initial claim") for:

   (i)a social security or service pension, a social security benefit or a parenting payment; or

   (ii)a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to special benefit; and

   (b)had the person claimed special benefit on the day on which the person made the initial claim, the person would have been qualified for special benefit on that day; and

   (c)the person subsequently makes a claim for special benefit; and

   (d)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

   the person's provisional commencement day is the day on which the person made the initial claim.  

The subsection 731(2) deems that a claim for special benefit may be made on the day a claim for another benefit or payment (in this matter newstart allowance) is made. However, two issues arise in Ms Polis's application: did she lodge a claim for newstart allowance on 12 July 1999 and, if she did, would she have, in any event, been qualified to be paid special benefit on that day? Ms E. King, who appeared for the Secretary at the hearing, contended that she would not. The documents disclose that in July 1999 Ms Polis and her husband had available liquid assets of $20,712.

1. The provisions under the Act with respect to qualification for special benefit are set out in the reasons for decision of the SSAT and the Tribunal will not reproduce them here. Due to her pregnancy and sickness, Ms Polis was unable to earn a sufficient livelihood. Modest available capital should not be seen as providing a livelihood but a person's personal and financial circumstances may make it inappropriate for a decision-maker to exercise their discretion in favour of a claimant. The purpose of special benefit is the provision of some livelihood for those who are unable to provide for themselves. In Re Watts and Director-General of Social Security (1984) 6 ALN 201 the Tribunal came to the view that the intention of the section was to confer a discretionary power upon the Secretary to pay a benefit to a person in real need of income for whom all appropriate means of achieving a livelihood were closed.  

2. The ARO noted in his letter dated 22 November 1999 that Ms Polis had advised that her partner, Mr Paulis, ceased working on 2 July 1999.   The ARO noted that Mr Paulis had liquid assets of $20,700.   In its reasons for decision the SSAT noted a Centrelink Policy Guide with respect to available funds and whether a claimant is likely to require support short or long term.

3. Mr Paulis did not dispute that he had liquid assets of $20,712 in July 1999 and the Tribunal is satisfied that, in light of the availability of those funds to Ms Polis, although she enters the field at the Tribunal's discretion, the discretion should not be exercised in her favour before 4 October 1999 as determined by SSAT.   The Centrelink Policy Guidelines with respect to criteria for determining when it is appropriate to exercise the discretion to grant special benefit are discussed in the reasons for decision of the SSAT at paragraphs 40 and following.   There are no grounds for this Tribunal to do other than apply those policy guidelines in the circumstances of this case with respect to Ms Polis's circumstances in July.

4. Turning to the issue with respect to whether Ms Polis lodged a claim for special benefit in July, the Tribunal would be satisfied that Ms Polis's claim for newstart allowance, which she signed on 12 July 1999, is similar in character to special benefit. However, subsection 731(2) of the Act does not assist Ms Polis because, as indicated above, the Tribunal would not exercise its discretion in her favour if it were to find that a claim had been lodged.

5. In Re Fraser and Secretary to the Department of Family and Community Services [2000] AATA 745 (25 August 2000) an issue arose whether a claim form for youth allowance had been lodged with Centrelink. The Tribunal had this to say:

   In Re Coin and Director-General of Social Security (1983) 5 ALN N254 Deputy President Todd discussed the meaning of "lodged" with respect to social security claims.   Although he accepted that Mrs Coin's claim for family allowance had been posted, he referred to what Mr A.N. Hall, Senior Member (as he then was) said in Re Flynn and Director-General of Social Security (1982) 4 ALN N282 that "I do not think that there can be any doubt that a claim which is posted is not 'lodged with a Director' until it is actually received in his office" and also to what was said by the Tribunal in Re Messina and Director-General of Social Security (AAT 1091, 20 June 1983) that ". . . posting of the claim does not meet the requirement of section 98; the claim must be lodged with a Director".   No doubt Leigh would be pleased to be paid youth allowance at the independent rate from either 20 April or 23 June.   As issues arise from time to time before this Tribunal as to whether claims have been "lodged", this Tribunal expresses its concern that, if Leigh's mother took a claim form to a Centrelink office, no record appears in Centrelink's computer with respect to the receipt of that earlier claim form.   Even if details on the form needed to be amended or further evidence obtained, for example, with respect to Leigh's age, a record should have been made by Centrelink that a claim form for youth allowance was lodged as it affects the date from which Leigh can be paid if he is entitled to be paid.   There is some support for Leigh's evidence as a copy of an extract of birth entry in the documents was sent to Leigh's mother before her death.   However, as there is some doubt in this matter, the Tribunal finds that Leigh lodged his claim for youth allowance on 23 June 1999 and the Tribunal will review the decisions arising out of that claim.

In the circumstances of this case it is unnecessary for the Tribunal to make a finding as to whether Ms Polis had lodged a claim or not although it appears to the Tribunal that she probably did. The Tribunal would again suggest that, if a customer hands a claim form to a Centrelink officer, it should be accepted as having been lodged and a record should be made with respect to any decision made with respect to the claim even if it is apparent to a Centrelink officer, on the face of the documents, that the person would have no entitlement to benefits under the Act.

1. It is for these reasons that the decision under review with respect to Ms Polis will be affirmed.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Mrs H.E. Hallowes, Senior Member

   (sgd)     Catherine Thomas
               Personal Assistant

   Date of Hearing:  10.08.00
   Date of Decision:  05.12.00
   Solicitor for the Applicant            NIL — Mr L. Paulis
   Solicitor for the Respondent:       Ms E. King, Advocate with Centrelink