RENATO BERNAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 701

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2166

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RENATO BERNAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Roderick McRae, Member

Date11 September 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY – economic security strategy – entitlement

Social Security Act 1991 s 900(1), (4), s 6A(1)
Social Security (Administration) Act 1999 s 11(1), s 14, s 16(1), (2), (4)

Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008

REASONS FOR DECISION

11 September 2009 Dr Roderick McRae, Member

BACKGROUND

1.      Mr Renato Bernal (the Applicant) is a 66-year old man.  He claims he is entitled to the Australian Government’s Economic Security Strategy (ESS) payment because he could have possessed a Commonwealth Seniors Health Card (CSHC) prior to 14 October 2008.  At the time of his 65^th birthday the Applicant was travelling out of Australia. 

2.      In October 2008 the Australian Government announced that certain social security recipients, including those possessing a CSHC, would be entitled to receive a one-off lump sum ESS payment.  The necessary amending legislation was contained in the Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008. 

3.      The Applicant contacted Centrelink by telephone to enquire about a CSHC on 29 October 2008.  He lodged his claim for a CSHC on 12 November 2008.  Centrelink granted him a CSHC, effective from 29 October 2008.  Centrelink acts as the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent). 

4. On 25 November 2008 the Applicant contacted a Centrelink officer about his eligibility for an ESS payment. On 8 December 2008 Centrelink decided the Applicant was ineligible for an ESS payment. This was because the Applicant failed to comply with section 900 of the Social Security Act 1991 (the Act).  The section required that in order to qualify for ESS, a person must have been qualified, and made a claim, for a CSHC card on or before 14 October 2008.  The Applicant had made a claim for, and been qualified for, a CSHC on 29 October 2008.  On 12 February 2009 a Centrelink authorised review officer affirmed this decision of being ineligible for an ESS payment.  The Applicant then sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 14 April 2009 the SSAT affirmed the decision.  The Applicant now seeks a review of the SSAT decision by the Tribunal. 

5.      The issue for the Tribunal is whether the Applicant is entitled to an ESS payment.  The Tribunal’s decision is that the Applicant is not entitled to an ESS payment.  

6.      The Applicant requested that the matter be heard on the papers pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Respondent consented to this process. The Tribunal was satisfied that the issues for determination on the review of the decision could be adequately determined in the absence of the parties. The Tribunal proceeded to review the decision by considering the documents or other material lodged with or provided to the Tribunal without holding a hearing. The Tribunal had before it documents lodged by the Respondent pursuant to section 37 of the AAT Act (the T‑Documents).

APPLICANT’S CASE

7.      The Applicant’s case is that a government office failed to advise him of his eligibility for CSHC.  Had they done so he would have applied for, and consequently would have been eligible for, the ESS payment; as he would have obtained the CHSC prior to 14 October 2008.  He argued that allowing him the ESS payment would fulfil the intention of the policy behind the ESS payment that persons in his circumstances should receive the ESS payment. 

RESPONDENT’S CASE

8.      The Respondent’s case is that the refusal of the ESS payment is as mandated by legislation and is appropriate in the circumstances.  There is no legislative requirement to inform potential recipients of a social security entitlement that they are eligible for an entitlement.  In order to receive an entitlement, it is necessary to submit a written claim in the proper form for that entitlement. 

LEGISLATION

9.      The relevant legislation is the Act and the Social Security (Administration) Act 1999 (the Administration Act). The Act provides:

900Qualification for economic security strategy payment

Qualified if this section applies

(1)A person is qualified for an economic security strategy payment if subsection (2), (3) or (4) applies to the person.

Qualified for seniors health card

(4)This subsection applies to a person if:

(a) on or before 14 October 2008, the person made a claim for a seniors health card under Division 1 of Part 3 of the Administration Act and had not withdrawn that claim on or before 14 October 2008; and

(b)     on 14 October 2008, the person was qualified for the card.

6AConcession card definitions

(1)In this Act, unless the contrary intention appears:

automatic issue card means:

(b)     an automatic issue health care card.

automatic issue health care card means a health care card issued to a person qualified for the card under Subdivision A of Division 3 of Part 2A.1.

concession card means:

(b)   a health care card; ...

The Administration Act provides:

11General rule

(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(b)    a concession card;

must make a claim for ... card in accordance with this Division.

14Deemed claim—person contacting Department about a claim for a concession card

(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 concession card; and

(b)     the person is, on the day on which the Department is contacted, qualified for the concession card; 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 concession card within 14 days after he or she contacts the Department;

the person is taken to have made a claim for the concession card on the day on which the Department was contacted.

...

(4)A reference in this section to the Department being contacted includes a reference to the Department being contacted by ... telephone ...

16How to make a claim

(1)A person makes a claim for a social security payment or a concession card:

(a)     by lodging a written claim for the payment or card; ...

(2)A written claim for the purpose of subsection (1) for ... a concession card must be in accordance with a form approved by the Secretary.

…

(4)A written claim is lodged by being delivered:

(a)     to a person apparently performing duties at a place approved for the purpose by the Secretary; or

...

(c)     in a manner, and to a place, approved for the purpose by the Secretary.

CONSIDERATIONS

10. It is necessary to apply the legislation to the facts. Qualification for receipt of the ESS payment is if a claim has been made for a CSHC prior to 14 October 2008, undertaken as detailed in sections 11 and 16 of the Administration Act.

FINDINGS

11.     The Applicant was eligible to claim a CSHC from 2 June 2008.  He did not do so at that time. 

12.     The Applicant claimed a CSHC in the proper form on 12 November 2008.  He was issued with one, effective from 29 October 2008. 

13.     The ESS payment was intended for specific groups of people receiving nominated social security payments at a particular time.  In order to receive the ESS, a person must have claimed their CSHC, and been entitled to it, prior to 14 October 2008.  Those claiming CSHC after 15 October 2008 were excluded from ESS payment. 

14.     The Applicant’s claim for, and entitlement to a CSHC was after 14 October 2008. 

15.     There is no statutory provision which permits the Tribunal any discretion on qualification criteria. 

CONCLUSION

16.     The Applicant is not entitled to receive the ESS payment. 

DECISION

17.     Accordingly, the decision of the Respondent to deem the Applicant ineligible to receive the ESS payment was the correct decision.  The Tribunal affirms the decision under review.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Roderick McRae, Member

(sgd):      Olympia Sarrinikolaou

Clerk

Date of Hearing:  Hearing on the papers

Date of Decision:  11 September 2009

Representative for the Applicant:         Self ‑ Mr Renato Bernal

Representative for the Respondent:     Mr Tim Noonan, Centrelink Legal Services Branch