Price and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 192
•6 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 192
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 200600521
GENERAL ADMINISTRATIVE DIVISION ) Re KATHERINE PRICE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date6 March 2008
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
..................[sgd].........................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensioner Education Supplement – whether start date of payment is correct – date of intention to claim - date of actual lodgement of claim form – earlier date on which application is deemed to be lodged – criteria not met – no discretion – decision under review is affirmed.
Social Security (Administration) Act 1999, Part 3, Division 1; sections 13, 16, Schedule 2
REASONS FOR DECISION
6 March 2008 Ms N Isenberg, Senior Member DECISION UNDER REVIEW
1. Ms Price, also known as Ms Court, seeks review of the Social Security Appeals Tribunal (“SSAT”) decision dated 21 April 2006, which affirmed the decision of a Centrelink authorised review officer to grant Ms Price’s Pensioner Education Supplement from 6 January 2006.
ISSUE BEFORE THE TRIBUNAL
2. The issue before the Tribunal is whether Ms Price is entitled to be paid Pensioner Education Supplement (“PES”) from a date earlier than 6 January 2006.
LEGISLATION
3. The PES is a pension which is payable in accordance with clause 30 of Schedule 2 Division 3 of the Social Security (Administration) Act 1999 (“the Act”), which relevantly states:
30. Pensioner education supplement
30. If:
(a) a person makes a claim for a pensioner education
supplement; and
(b) when the claim is made, the person is qualified for the
supplement; and
(c) the claim is made within 4 weeks after the person became
qualified for the supplement;
the person's start day in relation to the pensioner education
supplement is the day on which the person became qualified for the supplement.
Section 13 of the Act allows for an earlier start date in limited circumstances:
13 Deemed claim—person contacting Department about a claim for
a social security payment
(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 inrelation 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.
4. The dispute concerns the date on which the claim for PES was made. The relevant legislation is sections 13, 16 and Schedule 2 of the Social Security (Administration) Act 1999.
5. To be granted PES, a claim must be made in accordance with Part 3 Division 1 of the Act. The only way of making a claim is to lodge a written claim (section 16(1) & (2)). Lodging a written claim is done by an approved form being delivered to a person and place approved by the Secretary for the purpose (section 16(4)).
6. A person’s start day in relation to a social security payment is the day worked out in accordance with schedule 2 of the Act. Generally the start date for payment is the day on which the claim is made. Section 13 of the Act, however, contains provisions which allow a claim to be deemed to have been made when an earlier contact has been made in relation to the type of benefit. The provision can only apply where certain specific criteria have been met.
CONSIDERATION OF THE EVIDENCE
7. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
8. At Ms Price’s request and with the Respondent’s consent, I made my decision on the basis of the papers before me: the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), and the documents Ms Price provided which are noted in schedule A to this decision.
9. Ms Price has had a long and frustrating history with Centrelink. In January 2005 she brought unlawful discrimination proceedings, on behalf of her son, against Centrelink in the Federal Magistrates Court. The proceedings related to the Distance Education Allowance payable under the Assistance for Isolated Children Scheme (“the AIC Scheme”) administered by Centrelink under the Student Assistance Act 1977. At mediation the matter was settled and the memorandum of understanding notes that Centrelink agreed to do the following, within 28 days:
1. … to provide information to Mrs Price in regard to the Pensioner Education Supplement (under the AIC scheme) and any information as to what is required to access the Pensioner Education Supplement including any relevant application form.
2. The information to be provided to Mrs Price by Centrelink shall include any entitlement for retrospective payment of the Pensioner Education Supplement and any future entitlement …(my emphasis).
In accordance with the memorandum of understanding Centrelink sent Ms Price a letter on 1 November 2005 advising that her son was not eligible for PES. There is no reference to a claim form being attached, and given that the information provided was that her son had no entitlement, there was no reason for one to be enclosed.
10. The SSAT decision notes that it received an email from the Centrelink advocate who had written the 1 November 2005 letter. He wrote that he had not included a claim form and confirmed that the letter did not address Ms Price’s own entitlement to PES, only her son’s.
11. Ms Price told the SSAT that the letter she received from Centrelink had contained a claim form. She said she had completed the form and taken it to Nowra Centrelink on two occasions between 6 and 11 November 2005. It was her evidence at the SSAT that on the first occasion a client services officer, ‘Peter’, had declined to accept the form on the basis that it was not a Centrelink form. On the subsequent occasion, she told the SSAT, Peter had taken her form, after she had told him to do so, but rather than stamping the form to show it had been received, he placed it to the side of the counter. Ms Price told the SSAT that she did not hear anything in relation to her claim after this occasion and that she suspects Peter discarded her form. It was then that she went to the Federal Magistrates Court on 11 November 2005. This leads me to the view that whatever she may have taken in to Centrelink at the time related to her son, and not her own PES.
12. Furthermore, Centrelink records are clear. On 6 January 2006, the applicant contacted Centrelink at Wollongong about claiming PES for herself. As a result, on the same day she was sent a letter enclosing a PES claim form. The letter contained information that provided the completed claim form was returned on or before 20 January 2006, the date of claim would be regarded as 6 January 2006, and she would be paid accordingly. On 17 January 2006, Mrs Price lodged a PES claim form at Centrelink’s Wollongong office and on 23 January 2006, the PES claim was granted with effect from 6 January 2006, the date Mrs Price contacted Centrelink about claiming.
13. On 30 January 2006 Centrelink received a fax from the applicant containing a copy of the document sent to her notifying of the granting of the PES claim with a notation that she requested the claim be back dated to 6 November 2005 which was ‘the date of her enrolment’ in an undergraduate law program.
14. I accept that it may have been confusing that the term “Pensioner Education Supplement” is used by Centrelink to mean two different things. However, the Federal Magistrates proceedings and the subsequent letter from Centrelink (dated 1 November 2005) clearly related to Ms Price’s son, whereas her claim for PES (lodged on 6 January 2006) is clearly in respect of her own studies. The reference to her ’enrolment’ in the fax requesting backdating confirms that this was Ms Price’s understanding about the basis on which she was claiming at that time, as distinct from her earlier claim in respect of her son.
15. Having decided that Ms Price’s contact with Centrelink about her own entitlement to PES was on 6 January 2006, she was not entitled to the start date provisions of clause 30, because the course started in November 2005. She did, however come within the start date provision of section 13(1), and her entitlement to PES has been backdated to the date of her contact, 6 January 2006.
DECISION
16.The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: …………[sgd]…………………………………….
AssociateDate of Decision 6 March 2008
Schedule A
Documents filed with the Administrative Appeals Tribunal by the Applicant
1.Submissions (attaching Email to Registrar McIllhatton from Applicant dated 30 September 2005 and Centrelink computer printout contact note dated 18 January 2006) dated 25 June 2007
2.Submissions (attaching letter from Centrelink dated 22 May 2007, and Applicant’s reply dated 24 May 2007) dated 24 May 2007
3.Submissions (attaching letter from Centrelink dated 1 May 2007) dated 2 May 2007
4.Affidavit of Ms Katherine Anne Price dated 13 March 2007
5.Letter from Federal Magistrate Court to the Applicant dated 16 November 2005
6.Application to the Federal Magistrate Court dated 11 November 2005
7.Letter from Respondent to Applicant dated 1 November 2005
8.Deed of Settlement, between Price and the Commonwealth, dated 5 October 2005
9.Memorandum of Understanding between Price and Centrelink, dated 5 October 2005
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