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

[2008] AATA 1084

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5563

GENERAL ADMINISTRATIVE DIVISION		)
Re		QTRW

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date4 December 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – Form titled “Review of Family Tax Benefit for a child turning 16” lodged with Family Assistance Office - indication in Form that applicant would be eligible for or claim Youth Allowance – applicant believed application for Youth Allowance had been made by lodging Form – whether payment of Youth Allowance should be backdated – decision affirmed

Social Security (Administration) Act 1999 ss 8, 12(1), 13(1) and Schedule 2, clauses 3(1), 4(1), 36

Social Security Act 1991ss 540(b), 543A

Re Rummeny and Secretary, Department of Family and Community Services [2003] AATA 803

Re Gogebakan and Secretary, Department of Education, Science and Training [2006] AATA 184

REASONS FOR DECISION

4 December 2008   Senior Member R W Dunne   

introduction

1.      In this matter, the applicant’s mother had been receiving Family Tax Benefit (“FTB”) payments on the basis that the applicant was an “FTB child” up until her 16^th birthday on 22 July 2007. Pursuant to a confidentiality order made under s 35(2) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), the applicant is referred to in these reasons as “QTRW”. Her father is referred to as “Mr X”. Prior to the applicant turning 16 years, Mr X lodged with the Family Assistance Office (“FAO”) a “Review of Family Tax Benefit for a child turning 16” form (“FTB Review Form”). In it, he indicated that QTRW would be eligible for, or could claim, Youth Allowance when she turned 16. He believed that completing the FTB Review Form in this way constituted a claim for Youth Allowance. However, the respondent (“Centrelink”) subsequently advised the applicant’s mother that no application for Youth Allowance had been lodged. When the claim was lodged, a Centrelink officer decided to grant Youth Allowance with effect from 28 August 2007. QTRW requested a review of the decision, which was affirmed by an Authorised Review Officer. She appealed to the Social Security Appeals Tribunal (“SSAT”), but Centrelink’s decision was affirmed. QTRW has applied to this Tribunal for review of the decision of the SSAT.

2. At the hearing, QTRW was represented by Mr X and Mr Anthony Parker (from Centrelink Legal Services & Procurement Branch) appeared for the respondent. During the course of a preliminary conference prior to the hearing, Mr X had requested that a representative from the FAO be made available to give evidence about the making of, and the procedures for dealing with, Youth Allowance claims. Ms Narelle Smith and Mr John Lyons, Centrelink officers, appeared to give evidence. The Tribunal received into evidence the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2) pursuant to s 37 of the AAT Act. The following documents were tendered on behalf of the applicant and received into evidence:

·payment advice from the FAO dated 19 June 2007 addressed to the applicant’s mother (Exhibit A1);

·payment advice from the FAO dated 20 June 2007 addressed to the applicant’s mother (Exhibit A2);

·letter from Centrelink dated 18 April 2007 addressed to the applicant’s mother regarding cancellation of Parenting Payment (Exhibit A3); and

·booklet from the FAO titled “Information for families with children aged 16 to 24” (Exhibit A4).

issue for the tribunal

3.      The issue for the Tribunal to determine is the correct start date for payment of the applicant’s Youth Allowance.

legislation

4.      The legislation that is presently relevant is contained in the Social Security (Administration) Act 1999 (“Administration Act”). Schedule 2 of the Administration Act contains the rules for working out the start days for the payment of Social Security benefits. Clause 3(1) of the Schedule sets out the general rule, which reads:

“(1)     If:

(a)a person makes a claim for a social security payment; and

(b)the person is qualified for payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.”

5. Section 13(1) of the Administration Act provides for the backdating of a claim for a social security payment if certain requirements are met. It reads:

“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 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.”

6.      To be qualified to receive Youth Allowance, a person must be of youth allowance age (s 540(b) of the Social Security Act 1991).  For the applicant, who is not independent, the minimum youth age is 16 years (s 543A). 

background and evidence

7.      QTRW’s mother received FTB payments for her until she turned 16 years of age.  She is the oldest of four children and the family had not received Youth Allowance previously.  Prior to her 16^th birthday, the FAO sent Mr X the FTB Review Form (Exhibit R1, T4, pages 16-17) which asked, among other things, whether QTRW would be eligible for Youth Allowance and whether she intended to claim the Allowance when she turned 16.  Mr X completed the Form and returned it to the FAO on or about 29 May 2007, indicating “yes” to the questions asked.  On 19 June 2007, QTRW’s mother was sent a statement from the FAO regarding “Your Family Assistance” (Exhibit A1).  The statement set out an amount by way of “Regular payment from payday 19/07/2007”, being a payment for her four children, including QTRW.  On the next day (20 June 2007), QTRW’s mother was sent a further letter from the FAO (Exhibit A2) indicating that FTB could not be paid for QTRW because “she has claimed or intends to claim a Commonwealth payment in her own right”.  By 28 August 2007, QTRW’s mother had noticed that the FTB payments for her children had reduced.  On that date, she contacted Centrelink to enquire why this had occurred and was informed that no claim for Youth Allowance had been lodged for QTRW.  A claim was lodged on 30 August 2007 and, following a review by Centrelink, it was decided that Youth Allowance would be granted with effect from 28 August 2007.  When an Authorised Review Officer considered the decision to grant Youth Allowance, she acknowledged that QTRW’s parents had been under the impression that a claim for Youth Allowance had been made when the FTB Review Form had been returned in May 2007.

8.      Mr X said that the letter from the FAO dated 19 June 2007 did not make it clear that FTB payments for QTRW were to cease.  The wording in the letter suggested to him that the payments for his four children, including QTRW, were to continue unchanged.  The total amount of the FTB payments referred to in the letter was almost identical to the total payments that would have been made had Youth Allowance for QTRW been included.  To Mr X, the letter from the FAO dated 20 June 2007 was also misleading.  In it, the following information had been provided:

“.    We cannot pay you Family Tax Benefit for [QTRW] because she has claimed or intends to claim a Commonwealth payment in her own right.

.You may still be entitled to some payment of Family Tax Benefit depending on when [QTRW’s] Commonwealth payment is granted.

.Please contact the Family Assistance Office if [QTRW’s] claim is unsuccessful or if you think you may be entitled to some payment of Family Tax Benefit.”

As far as he was concerned, a claim for Youth Allowance for QTRW had been made when the FTB Review form had been lodged and separate payments for the Allowance would be received in due course.  There was no reason for him to suspect that a separate claim for Youth Allowance needed to be made.

evidence of ms narelle smith

9.      Ms Smith had been with Centrelink for 7½ years.  Her duties within the FAO Call Centre were to handle face-to-face enquiries and provide advice about FTB.  She said that, when a child turned 16, a Youth Allowance claim form would be sent to the customer.  Her role was to look at the answers in the claim form and process it accordingly.  A separate child’s record would be prepared of Youth Allowance entitlement.  No arrangement existed for the automatic forwarding of the claim forms when a child turned 16.  Requests for the form were usually made online or by contact at the FAO Call Centre.

10.     In cross-examination by Mr X, Ms Smith said that when FTB Review Forms were lodged, they were dealt with by a Centrelink officer experienced in FTB.  The Review Form was provided to allow customers to indicate an intention to claim a benefit (such as Youth Allowance), but was not the claim form itself.  The personnel dealing with Youth Allowance claims would not see the FTB Review Forms, when lodged.  She referred to the FAO booklet that was forwarded to customers with the FTB Review Form and the information provided about continuing to receive FTB, or alternatively, applying for Youth Allowance, Abstudy or another allowance.

evidence of mr john lyons

11.     Mr Lyons had been employed with Centrelink since 1997.  His present role was to provide policy support to the student processing team handling payments for Youth Allowance and Abstudy, which he had been doing for 10 years.  He outlined the benefits available to recipients of Youth Allowance and the eligibility requirements.  With payments of Youth Allowance, a separate claim form existed.  With full-time students, they were encouraged to apply online.  If they made contact by telephone, a claim form would be forwarded to them.  Information about Youth Allowance was provided through the FTB Review Form and the accompanying booklet provided by the FAO.  There was no automatic interaction between FTB and Youth Allowance.  The claim process for Youth Allowance was dealt with separately over the telephone or online.

12.     Again, in cross-examination by Mr X, Mr Lyons confirmed that no claim form for Youth Allowance would be sent to a child turning 16, even though they may be eligible for the Allowance.  In the FAO, there was no communication by FTB personnel to Youth Allowance personnel to act on the basis of the lodgement of a FTB Review Form.  No arrangement existed for back-claiming Youth Allowance.  The start date for the Allowance, assuming eligibility existed, was when the claim itself was lodged.  If an enquiry for Youth Allowance was made on a child’s 16^th birthday and then a claim was lodged within 14 days, payment would be backdated to the date of the enquiry.

consideration

What is the correct start date for payment of the applicant’s Youth Allowance?

13. By virtue of clause 3(1) of Schedule 2 of the Administration Act, if a person is qualified for a social security payment on the day a claim for the payment is made, the person’s start day for the payment is the day on which the claim is made. QTRW qualified for Youth Allowance on 22 July 2007, but did not lodge a claim on that date. However, on or about 29 May 2007, Mr X lodged a FTB Review Form with the FAO. In it, he indicated that it was intended that a claim for Youth Allowance would be made when QTRW turned 16. Her parents believed that the FTB Review Form was a claim for Youth Allowance. Unfortunately, this was not the case. As the Review Form stated at Question 2 (Exhibit R1, T4, page 17):

“You are able to claim Youth Allowance for a student or New Apprentice online at or call 13 2490.”

When QTRW’s mother became aware that FTB was no longer being paid in respect of her daughter, and that Youth Allowance was not being received in lieu of FTB, on 28 August 2007 she contacted Centrelink and was advised that no claim for Youth Allowance had been lodged.  The next day, QTRW lodged a claim for Youth Allowance. 

14.     Mr X argued his daughter’s case very capably.  He contended that the FTB Review Form should be treated (or viewed) as a claim for Youth Allowance.  I am unable to accept this contention.  As was mentioned by the SSAT, the FTB Review Form clearly indicated that it was QTRW’s intention to claim Youth Allowance. The Review Form itself was not a Youth Allowance claim form. I am also satisfied that the backdating provisions in s 13(1) of the Administration Act cannot apply. On the relevant date on which the FAO was contacted in relation to Youth Allowance for QTRW, she was not qualified because she was not 16 until 22 July 2007. As no claim for Youth Allowance for a qualified person could have been made within 14 days of the contact date, s 13(1) is not applicable.

15.     Mr X then contended that, as QTRW’s 16^th birthday fell on a Sunday, it would not have been possible for her to lodge a claim for Youth Allowance that would become effective from the date of her birthday. However, clause 4(1) of Schedule 2 of the Administration Act would, in my view, cover this situation. Clause 4(1) reads:

“4        Start day—early claim

(1)      If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)      the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.”

QTRW could make a claim for Youth Allowance prior to her birthday and, provided it fell within the ensuing 13 weeks, she would be qualified to receive Youth Allowance from her birthday. 

16. It was also contended by Mr X that the deeming provisions in s 12(1) could apply to enable QTRW to become qualified for Youth Allowance. Section 12(1) of the Administration Act reads:

“12       Deemed claim in certain cases

(1)The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:

(a)the person became qualified for the new payment while receiving another income support payment; or

(b)the person became qualified for the new payment immediately after ceasing to receive another income support payment.”

In my view, s 12(1) cannot apply. In order for it to apply, the person must become qualified for the “new payment” while receiving another income support payment or immediately after ceasing to receive another income support payment. In QTRW’s case, she became qualified for Youth Allowance (the new payment), but she was not receiving another income support payment at the time or did not cease to receive another income support payment. The other income support payment was FTB, which was not received by QTRW, but by her mother as part of the FTB payments she received for the whole family.

17. Finally, Mr X contended that clause 36 in Schedule 2 of the Administration Act applied. Clause 36 of Schedule 2 reads:

“36       Youth allowance—initial claim for family tax benefit

If:

(a)a claim is made for family tax benefit in respect of a person (the initial claim); and

(b)on the day on which the initial claim is made, the person is qualified for youth allowance; and

(c)      the person afterwards makes a claim for youth allowance; and

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

the person’s start day in relation to youth allowance is the day on which the initial claim was made.”

Clause 36 deals with a claim for FTB made in respect of a person, when the person is qualified for Youth Allowance, and that person afterwards makes a claim for Youth Allowance himself or herself. In the present case and on the evidence before me, at the time a claim for FTB would have been made in respect of QTRW, she would not have been qualified for Youth Allowance. She became qualified for Youth Allowance when she turned 16, at which time a claim for FTB was current. I am not satisfied that it is reasonable for clause 36 to apply in QTRW’s case.

18. Mr X argued that he was not advised by Centrelink it was necessary for QTRW to lodge a separate claim for Youth Allowance. Mr Parker submitted that the FTB Review Form and the booklet accompanying it both made it clear that a person must lodge a claim form in order to receive Youth Allowance. However, I can appreciate that, for a first time Youth Allowance claimant, Mr X believed that completing Question 2 in the FTB Review Form would have been sufficient to make a claim and that nothing further was required. Like the SSAT, I may well question, as Mr X did, why Centrelink did not forward a Youth Allowance claim form to the applicant to complete at the same time the FTB Review Form was forwarded. Moreover, again like the SSAT, it is not the Tribunal’s function to safeguard the principles of administration that are imposed upon the respondent by s 8 of the Administration Act.

19.     Mr X referred me to two decisions of this Tribunal that he submitted were supportive of QTRW’s case.  In Re Rummeny and Secretary, Department of Family and Community Services [2003] AATA 803, the applicant was expecting the birth of her child in December 2001. She was told by a Centrelink officer that she was not entitled to any benefits, but should apply to Centrelink after the baby was born for FTB and Parenting Payment. She eventually lodged a claim for FTB and, after asking the Centrelink officer, was told that she was not entitled to any other benefits. Senior Member K L Beddoe held that the applicant was entitled to claim and receive Parenting Payment. He said (at paragraphs 18-19):

“18.  I am satisfied that when the claim for family tax benefit was made by the applicant, she was a person qualified for parenting payment. …

19.  It follows that the applicant is to be taken to have made a claim for parenting payment when she made the claim for family tax benefit.”

Re Rummeny does not assist QTRW in her case.  There was no claim for Youth Allowance made by her when she lodged the FTB Review Form.  Her claim was made when she lodged her application dated 29 August 2007.

20.     In Re Gogebakan and Secretary, Department of Education, Science and Training [2006] AATA 184, the facts were similar to those of QTRW. Ms Gogebakan was turning 16 on 6 June 2005. On 6 May 2005, her mother lodged a completed FTB Review Form. The FAO wrote to her advising, “We cannot pay you Family Tax Benefit for Filiz because she has claimed or intends to claim a Commonwealth payment in her own right”.  Mrs Gogebakan’s evidence was that she then lodged a claim for Youth Allowance for her daughter on 10 May 2005.  When Centrelink advised her that they had no record of the claim, she lodged a further claim on 16 August 2005 and payment of Youth Allowance commenced from 12 August 2005.  Mrs Gogebakan eventually applied to this Tribunal for review.  Member Ms N Isenberg accepted that an application for a claim for Youth Allowance had been lodged on 10 May 2005, but had been lost or misplaced by Centrelink.  In these circumstances, payment of Youth Allowance was effective from 10 May 2005 and not the later date of 12 August 2005 recorded by Centrelink.  Unlike the present case, Re Gogebaken involved an actual claim for Youth Allowance, which was lost or misplaced.  As no such claim was lodged by QTRW, the decision is of no assistance to her.

21.     For the reasons stated above and on the evidence before me, I am satisfied that the correct start date for QTRW’s Youth Allowance is 28 August 2007, which is the earliest relevant contact on or after her 16^th birthday.  Having said this, I note that QTRW’s parents could still apply for FTB arrears for the period 22 July 2007 to 27 August 2007. 

decision

22.     The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Memebr R W Dunne

Signed:         ...........J Coulthard.............................................
  Associate

Date of Hearing  3 September 2008
Date of Decision  4 December 2008
Advocate for the Applicant       QTRW's father

Advocate for the Respondent   Mr A Parker

Centrelink Legal Services & Procurement                 Branch