Pulis and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 633

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2008] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0445

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL PULIS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date21 July 2008

PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal and remits the matter to the Respondent for calculation, in accordance with section 31 of the Social Security(Administration) Act 1999, and payment accordingly.

……………………[sgd]……………………..
  Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – pensioner education supplement – whether start date of payment is correct – when applicant became qualified for payment – date of actual lodgment of claim form –  appropriate date of payment – payment can be made from date of claim – decision under review is set aside.

Social Security (Administration) Act 1999, ss 11, 16(1)-(2), 16(4), 42, Sch 2 cl 3 and 31

REASONS FOR DECISION

21 July 2008 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

The decision by the Social Security Appeals Tribunal (“SSAT”) dated 2 January 2008, which affirmed the decision by a Centrelink authorised review officer (ARO) dated 27 November 2007, to pay Mr Pulis a pensioner education supplement (PES) from 13 November 2007 and not from any earlier date.

ISSUE BEFORE THE TRIBUNAL

1.      It was not in dispute that Mr Pulis’ studies in 2007 attracted an entitlement to PES.  The issue before the Tribunal is whether Mr Pulis can be paid PES from a date earlier than 13 November 2007.

LEGISLATION

2.      The dispute concerns the date on which Mr Pulis’ claim for PES was made.  The relevant legislation is the Social Security (Administration) Act 1999 (“the Act”). Pursuant to sections 11, 16(1), (2) and (4) of the Act, a person who wants to be granted a social security payment must lodge and deliver a written claim within an approved form, to a person approved for the purpose by the Secretary.

3. Generally the start date for payment is the day on which the claim is made: s 42. A person’s start day in relation to PES is the day worked out in accordance with Schedule 2 clauses 3 and 31 of the Act. In particular, if a claim is made before 1 April the payment can be backdated, to the first day on which a person becomes qualified for PES.

CONSIDERATION OF THE EVIDENCE

4.       I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. Mr Pulis gave evidence as did his partner of 18 years, Ms Michelle Wilson.   Also tendered was a list of names of people at Centrelink that either Mr Pulis or Ms Wilson had dealt with in relation to this matter. Most importantly, I was provided with a statement by Ms Adele Hopkins, Mr Pulis’ TAFE teacher. Ms Hopkins wrote that Mr Pulis enrolled in ‘Stage 1 of the Preparation for Work and Study course on 31 January 2007’ and that he attended classes from 6 February until 29 November 2007.

5.      Mr Pulis has been in receipt of a disability support pension from 27 May 1999.  Because he is illiterate he wanted to do a TAFE course, as he has in the past, to improve his job prospects. He went to Centrelink and, contrary to previous occasions, was told he had to enrol first before lodging the PES claim form which he was given.  After Mr Pulis had enrolled, Ms Wilson filled out the form as best she could, describing the course in her own words, and they took it to Centrelink.  They saw a lady ‘with wavy hair’ there, who said something about ‘the percentage of hours’ being insufficient and Ms Wilson accepted that six hours of study was not much compared to a full working week. There is no Centrelink record of the attendance at that time or of lodgement of the claim.  Ms Wilson demonstrated how the lady folded the claim form before putting it in the bin. 

6.      However, when at TAFE, and when he got to know other students, Mr Pulis discovered that others were getting PES for doing the same course.  Ms Wilson thought at the time that they must have been doing additional studies so as to have greater hours than Mr Pulis.

7.      In March or April Mr Pulis was ‘in a bad mood’ about not getting the PES.  Ms Wilson phoned Centrelink and arranged for another PES application form to be sent out.  It arrived within a couple of days.  Centrelink’s records note contact about the PES on 20 March 2007. 

8.      Ms Wilson said she immediately filled out what she could on the form about Mr Pulis’ particulars and they went straight to his teacher, Ms Hopkins, to complete the balance, which related to precise details about the course.  Then they went straight from TAFE to Centrelink to lodge the form.  

9.      There they saw a Centrelink clerk whose name was Matt, according to his name tag.  He was ‘smug’ and ‘smirking’ and ‘cocky’ and after flipping through the claim form, told Mr Pulis he did not qualify for PES because of the hours.  They did not see Matt throw the claim form away, but it was not given back to them.  They understood he was going to ‘put it through’ [for decision] anyway, even though he had firmly told them Mr Pulis was ineligible.  Centrelink now has no record of the attendance or of the PES claim form.

10.     Following the SSAT hearing it was confirmed by a Senior Practitioner at Cessnock Centrelink that claims are only to be collected at the point of receipt, with Officers trained to advise applicants to ‘test their eligibility’ by applying. Typically PES claims are then sent to Wallsend to undergo determination.  Further, ‘unless somebody doesn’t do their job properly’ this is the usual practice in the Cessnock office.  It was also confirmed that a ‘Matt’ worked for Centrelink in March 2007. On numerous occasions he was spoken to by his supervisor about work performance. In relation to Mr Pulis’ alleged PES application in March 2007, although the Senior Practitioner could not verify Matt’s actions, if incorrect, then this was not ‘the way it was meant to happen’. Nonetheless the Senior Practitioner vaguely recollected assisting Mr Pulis to have his PES claim approved.

11.     It did not overly trouble Ms Wilson that they received no formal response to the claim lodged with Matt because they had been told both by the ‘lady with wavy hair’ and ‘Matt’ that Mr Pulis did not qualify.  For that reason she did not chase up a formal response. Sometimes, if she was phoning about other matters she would make a general enquiry and was continually told about ‘a certain percentage of hours’. 

12.     Throughout the year though Mr Pulis continued to get contrary information from his fellow students, namely that they were receiving PES. Ms Wilson continued to rationalise that those students must have been doing additional hours of study.  Mr Pulis did not himself follow up the claim as he disliked going into Centrelink as the office was undergoing refurbishment and was somewhat chaotic.  In addition, whenever he did go in, he felt humiliated.

13.     By November, Mr Pulis had become very angry about the apparent disparity with the other students.  Ms Wilson, in what seemed to be in some frustration in managing Mr Pulis, decided to pursue the issue once and for all.  They went into Centrelink, collected a form, took it to Ms Hopkins to complete the part about the course, and went straight back to Centrelink.  There, they were again initially told that Mr Pulis was ineligible. There was something of an altercation.  Mr Pulis refused to leave until his application was considered by some person with higher authority.  Ultimately, it was decided that he was eligible, but that his claim would not be backdated.  This information about the non-backdating, he said, was conveyed to him with laughter. 

14.     I found Mr Pulis and Ms Wilson to be forthright and credible witnesses and I have come to the view, on the balance of probabilities, that Mr Pulis claimed PES shortly after 20 March 2007, as he and Ms Wilson contended.  I find the available information about the Centrelink clerk, ‘Matt’, to be consistent with the evidence they gave as to their experience of him.  They speculated that the claim form may have been lost, and noted that the Centrelink office was undergoing refurbishment.  I found the explanation for not following up the decision to be entirely plausible, given that they had been definitively told that that Mr Pulis was not eligible.  It was through his and Ms Wilson‘s perseverance that he was paid PES at all. 

15.     Further, in support of the application for review, Mr Pulis provided a statement by Ms Hopkins, his TAFE teacher.  She wrote that she had helped Mr Pulis fill out two Centrelink PES forms.  This is entirely consistent with Mr Pulis and Ms Wilson‘s account, that the first claim form (January/February) was filled out by Ms Wilson alone and that two subsequent forms (in March/April and November) were completed with Ms Hopkins’ assistance.

16. Having regard to their evidence of receiving the PES claim form within a couple of days (of 20 March 2007) and ‘immediately’ taking it to Ms Hopkins and then to Centrelink, I accept that the claim was made before 1 April 2007. PES is therefore payable in accordance with Schedule 2 clause 31 of the Act and the matter is remitted for calculation and payment accordingly.

DECISION

17. The Administrative Appeals Tribunal sets aside the decision under review and remits the matter to the Respondent for calculation, in accordance with s 31 of the Act, and payment accordingly.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:……[sgd]………………………………………………      Associate

Date of Decision:  21 July 2008
Date of Hearing:  2 July 2008
Appearance for Applicant:              Self-represented      
Advocate for Respondent:           Ms S Mantaring, Centrelink Legal Services