Radford and Secretary, Department of Family and Community Services

[2000] AATA 1079

DECISION AND REASONS FOR DECISION [2000] AATA 1079

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/668

GENERAL ADMINISTRATIVE   DIVISION     )       
           Re      BRONWYN RADFORD    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr E K Christie, Member   

Date27 November 2000

PlaceBrisbane

Decision      The decision under review is affirmed.  This means Miss Radford's application is unsuccessful.         

(Sgd) EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY – Youth allowance – commencement date of claim – Compensation for Detriment Caused by Defective Administration
Social Security Act 1991: ss.547, 548, 554(1), 554A, 554B, 554C(1)(d)
Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543

ORAL REASONS FOR DECISION

27 November 2000 Dr E K Christie, Member               

1. This is an application by Miss Bronwyn Radford to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 3 July 2000.  The SSAT affirmed a decision by an Authorised Review Officer of Centrelink on 30 May 2000 that Miss Radford's Youth Allowance claim could not be backdated to 21 February 2000.

2. In reaching its decision, the SSAT concluded that:

   "….it found that Miss Radford did not disagree with the facts of her case that she lodged her claim on that date stated by Centrelink on the 15 May 2000."  (T2 Folio 6)

1. At the hearing, Miss Radford represented herself.  The Department of Family and Community Services ("the Department") was represented by Ms. J. Dwyer, a Departmental Advocate.

2. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1).
   ISSUE BEFORE THE TRIBUNAL

3. The only issue for the Tribunal was to decide whether Miss Radford's claim for Youth Allowance could be backdated to 21 February 2000.
   FACTS

4. Miss Radford acknowledged the following findings made by the SSAT:

   "i.Miss Radford had been in receipt of youth allowance in 1999 prior to going overseas in November 1999.

   ii.Miss Radford attended Chermside Office of Centrelink on 21 February 2000 to obtain a new claim form for youth allowance for the 2000 year of study.

   iii.Miss Radford lodged the claim for youth allowance on 15 May 2000."  (T2 Folio 6)

EVIDENCE OF BRONWYN RADFORD

1. Miss Radford said that she had normally dealt with the Strathpine office of Centrelink (Ann Blackburn) for her ongoing claims for Youth Allowance.  In November 1999 she was advised by Ms Blackburn to lodge a Youth Allowance claim with Centrelink when she returned from an overseas holiday in the USA.  Miss Radford was overseas from November 1999 to 17 February 2000.

2. Miss Radford said that she went to the Centrelink office at Chermside on her return from USA (21 February 2000), she was given a claim form but no instructions.  She was told by the interviewing officer (Ms M. Carter) that she would have to submit a whole new Youth Allowance claim including details under Section G "Independence" (Past Employment History).  Miss Radford said that Ms Carter had keyed her personal details into the computer and reviewed the information on the screen before completing the interview.  Following the interview, Miss Radford believed that the Youth Allowance claim form could not be submitted until this employment information had been provided.

3. Based on Ms Carter's advice, Miss Radford then sought out the Section G information from her two previous employers with whom she held part-time employment in the preceding 18 months:  Geebung State School, Red Rooster.  This information took a great deal of time and effort to collect.  The Geebung School did not provide the information until April 2000;  Red Rooster, in May 2000.  On receipt of the information from both sources, Miss Radford then lodged her Youth Allowance claim on 10 May 2000.

4. Under cross-examination, Miss Radford said:

• the supporting notes in the Youth Allowance claim form were ambiguous and confusing for applicants completing the form;

• that she believed her claim in May 2000 would be backdated to the time she had an interview at the Chermside office on 21 February 2000, as this situation had occurred in another Centrelink office in the past whilst she was studying at a TAFE;

• that she had been subsequently advised by Ms Blackburn, Centrelink Strathpine, that it was not necessary for her to obtain the employment information from Red Rooster and Geebung School because it had already been provided by her and was held in the Centrelink computer.

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

1. Ms Dwyer said that Centrelink records confirmed that Miss Radford had an interview with a Centrelink employee on 21 February 2000 (T5 Folio 19).  However, the employee (Ms Carter) could not recollect the interview.  In addition, Ms Carter's normal practice at interview would be to advise a Centrelink client to not delay in lodging the Youth Allowance claim form, even if the client did not have all relevant documents and information (T9 Folio 28).

2. Ms Dwyer submitted that the effect of the Social Security Act 1991 was that:

• the provisional commencement date of Miss Radford's Youth Allowance claim was 15 May 2000;

• that there were no statutory exemptions which would allow Miss Radford's commencement date for Youth Allowance to be varied;  and

• that there was no discretion under the Act to backdate Miss Radford's claim to 21 February 2000.

1. In response, Miss Radford submitted that as the Centrelink employee (Ms Carter) had keyed in her personal details on the computer at the time of the interview at the Chermside office (21 February 2000), Ms Carter should have been aware that her employment details were already held by Centrelink.  That is, there was no need for Miss Radford to obtain this information for Centrelink purposes.  Collecting this information had led to the three months delay in submitting her Youth Allowance claim as well as the subsequent loss of Youth Allowance payments to which she was entitled.  Furthermore, Miss Radford said that the first time she had become fully aware of the complex legislative requirements for making a Youth Allowance application was when she was placed in her current predicament and the review of her case by the SSAT.
   LEGISLATIVE FRAMEWORK

2. The legislative framework provided for in the Act for Youth Allowance applications is as follows:

   "SECTION 547  SITUATIONS IN WHICH YOUTH ALLOWANCE IS NOT PAYABLE
   547  A youth allowance is not payable to a person who is qualified for youth allowance:
   (a)       before the person's provisional commencement day (see Subdivision B);  or
   ….
   SECTION 548  PROVISIONAL COMMENCEMENT DAY – BASIC RULE
   548  Subject to this Subdivision, a person's provisional commencement day is the day on which the person claims a youth allowance.
   SECTION 554  NEED FOR A CLAIM
   554(1)  Proper claim  A person who wants to be granted a youth allowance must make a proper claim for that allowance.
   SECTION 554A  FORM OF CLAIM
   554A  To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
   SECTION 554B  LODGMENT OF CLAIM
   554B  To be a proper claim, a claim must be lodged:
   (a)       at an office of the Department;  or
   (b)       at a place in Australia approved for the purpose by the Secretary;  or
   (c)       with a person in Australia approved for the purpose by the Secretary.
   SECTION 554C  CLAIMS BY TELEPHONE, FACSIMILE OR COMPUTER
   554C(1)  Contacting Department prior to lodging claim. A person is taken to have lodged a claim in accordance with section 554B on the day on which the Department is contacted under paragraph (a) of this section if:
   …

   (c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to making a claim;  and

   …."

CONSIDERATION OF THE ISSUES

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991 ("the Act").

2. The first issue for the Tribunal to decide is whether Miss Radford is an honest and credible witness in all her dealings with Centrelink.  The Tribunal finds that she is.

3. Furthermore, the Tribunal finds that Miss Radford may have been given advice that was incorrect or ambiguous because:

• the Centrelink employee who interviewed Miss Radford on 21 February 2000 (T5 Folio 19) had access to her Personal Details ("Screen PED") as well as Allowance and Benefit History ("Screen ABH").

The Tribunal concludes that, on the balance of probabilities, the employee failed to advise Miss Radford that "Section G – Independence", of the Claim Form (viz.  Employment Details for the preceding 18 months) did not have to be completed as this information was already held on the Department's computer records.  Failure to provide such advice led to the three months delay as Miss Radford sought to obtain this information from past employers and so delayed Miss Radford submitting her claim until 10 May 2000 leading to the subsequent loss of Youth Allowance entitlements.

1. The Tribunal also finds Ms Carter's statement on her normal practice at interview as speculative, in this instance.  This statement cannot be directly extrapolated to Miss Radford's interview situation because there are no positive, proved facts before the Tribunal to conclude that this practice occurred during Miss Radford's interview.

2. Furthermore, the Tribunal agrees with the following statement made by the SSAT in their discussion of the evidence:

   "20.  The Tribunal found that the information contained in the Notes for Youth Allowance Claim to be confusing in that while stating there should be no delay in lodging a claim, it also stated that you may not get paid if you lodge the claim without all the documents required.  Further, the Tribunal understood Miss Radford's frustration at being told in May 2000 that she did not need to obtain information about her previous employment before submitting her claim."  (T2 Folio 6).

1. Notwithstanding the above findings made by the Tribunal (in paragraphs 17, 18, 19 of this decision), there are no provisions in the Act which provide the Tribunal with statutory power to apply these findings to resolve the issue in dispute in this application for review.

2. The only statutory provisions which can be considered in resolving the issue in dispute are ss. 547, 548, 554(1), 554A, 554B and 554C(1)(d) of the Act.

3. On consideration of these statutory provisions, the Tribunal concludes that the Department has correctly applied them in determining the Youth Allowance commencement date.  Accordingly, the Tribunal concludes that it has no discretion to backdate Miss Radford's application for review to 21 February 2000.

4. This conclusion means that Miss Radford's application is unsuccessful.  Her application for Youth Allowance cannot be backdated to 21 February 2000.

5. Whilst this conclusion may seem harsh, it is probably more correct to say that the outcome is unfortunate because the Act gives the Tribunal no option other than to make such a conclusion.

6. However, the Tribunal makes the observation that Miss Radford should also consider a possible compensatory option because of a Centrelink Policy:  "Compensation for Detriment Caused by Defective Administration".  The Tribunal emphasises that any such payments are necessarily determined between Centrelink and Miss Radford only – following application by Miss Radford.  Centrelink has published Policy Guidelines for this Scheme.  The criteria for payment are as follows:

   "4.14200The Secretary may approve a compensation for detriment caused by defective administration (CDDA) payment (subject to the limitations below) if an officer acting in the course of their duties has directly caused a person to suffer detriment for one of the following reasons:

• a specific and unreasonable lapse in complying with existing administrative procedures that would normally have applied to the claimant's circumstances; or

• an unreasonable failure to institute appropriate administrative procedures to cover a claimant's circumstances; or

• giving advice that was incorrect or ambiguous; or

• an unreasonable failure to give a person advice that it was reasonable for the officer to have given."

1. The Tribunal is also mindful of this Tribunal's decision in Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543, with respect to advice given to Social Security recipients by departmental officers:-

   "Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel.  Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies.  Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represented government departments and agencies.  Citizens should be entitled to expect nothing less."

and

"The responsibility for efficient and effective administration of departmental practice and policy must carry with it a responsibility for any error or mistake which is made by the departmental officers alone."

1. The Tribunal concludes that based on its findings (paragraphs 16, 17, 18 and 19), advice that was incorrect or ambiguous has been given to Miss Radford by Centrelink.  Miss Radford may now fall within the Policy Guidelines for Compensation for Detriment Caused by Defective Administration and so seek redress, directly, from the Department for Youth Allowance entitlements for the period 21 February 2000 to 15 May 2000.         

2. For all of the above reasons, the decision under review is affirmed.  This means Miss Radford's application is unsuccessful.

   I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  27.11.00
   Date of Decision  27.11.00
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Ms J Dwyer, Departmental Advocate