Roberts and Secretary, Department of Social Services (Social services second review)

Roberts and Secretary, Department of Social Services (Social services second review) [2020] AATA 2638 (4 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4251
Re:ROBERTS, Nathan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:4 August 2020
Date of written reasons: 4 August 2020
Place:Adelaide

The decision under review is set aside. The start day for Mr Roberts youth allowance is 3 September 2018.
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Member I Thompson
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – commencement date – date of contact of change in circumstances – date of lodgement of claim – vulnerable claimant - special circumstances - youth allowance – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Services Legislation Amendment (Welfare Reform) Act 2018
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Member I Thompson
4 August 2020
INTRODUCTION

A decision was made by Centrelink to grant the applicant, Nathan Roberts, youth allowance from 14 November 2018. Mr Roberts requested a review of that decision in relation to the commencement date. An authorised review officer (ARO) of Centrelink affirmed the decision, namely, the start day for the youth allowance is 14 November 2018.
Mr Roberts applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of the ARO’s decision. The decision under review was affirmed. Mr Roberts applied to the General Division of the Tribunal for a second review.
The hearing took place by telephone on 22 May 2020. Mr Roberts was self represented. Mr Calaby represented the respondent, the Secretary, Department of Social Services.
Mr Roberts gave evidence by affirmation. The Tribunal received in evidence the documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 together with various other records.
Mr Roberts is now 21 years old. In his application to this Tribunal for review he claimed that the decision under review was wrong and he should have been paid youth allowance before 14 November 2018.
LEGISLATION
The processes for making a claim for a Social Security payment are contained in the Social Security (Administration) Act 1999 (the Administration Act).
As a general rule, section 11 of the Administration Act requires that an applicant must make a claim for a social security payment in an approved way. Section 16 of the Administration Act provides information on how to make a claim. Normally it will be in writing in accordance with a form approved by the Secretary and lodged by being delivered in accordance with the criteria specified in that section.
The central issue in this review is the start day for the payment of youth allowance. Sections 41 and 42 of the Administration Act specify that the start day is determined in accordance with schedule 2 which, in turn, provides in clause 3 that the general rule is: –
“Start day – general rule
(1) if:
(a) the person makes a claim for a Social Security payment; and
(b) the person is qualified for the 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.”
There are circumstances in which a person is deemed to have made a claim for a social security payment from a date of contact earlier than the day on which the written claim is lodged.
Prior to 1 July 2018 section 13 of the Administration Act set out the circumstances in which a claim could be paid from the date of contact. Before 1 July 2018 a person could be taken to have made a claim on a day they contacted the Department about claiming payment and submitted a claim within 14 days. Extension of the 14-day period could occur if the claim was submitted within 13 weeks and the person’s ability to submit the claim earlier was affected by a medical condition.
Those circumstances changed from 1 July 2018 when an amendment to section 13 of the Administration Act came into effect. Schedule 11 of the Social Services Legislation Amendment (Welfare Reform) Act 2018 amended section 13 of the Administration Act. Included within the amendments was a provision for the Minister for Social Services to determine a class of persons whose claim for a social security payment may be deemed to have been made earlier than when the claim was lodged. The Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Determination) commenced on 1 July 2018, which is the same date as the amendments to the Administration Act came into effect.
In the explanatory statement to the Determination, the following passage appears: –
“…although the intent to claim provisions in sections 13 and 14 will no longer apply to claimants generally, the provisions will continue to apply to a vulnerable claimant, being a person included in a class of persons prescribed by the Determination... It will only apply to contacts to the Department of Human Services from 1 July 2018… And so, will operate prospectively only.”[1]
[1] Exhibit 6, Annexure B.
Section 5 of the Determination sets out the class of persons to whom Sections 13 and 14 of the Administration Act apply. The first ten instances describe the type of vulnerable circumstances and the final instance relates to special circumstances beyond the person’s control. The Determination states in part that[2]: –
“…. a person is in a class of persons if the person is unable to lodge a claim on the contact day because at any time during the relevant period the person is: –
…(c) hospitalised or suffering from a temporary incapacity arising from a medical condition
…(k) subject to other circumstances beyond the person’s control.”
[2] T4 p50.
Evidence of Mr Roberts
Mr Roberts told the Tribunal that he first received the youth allowance in 2017. In early 2018 the allowance was suspended. He understood that Centrelink required financial information about his parents. He tried to get that information through taxation records. He and his mother were waiting for that information and it took quite some time to get it. His parents were separated, and he did not have contact with his father. In the meantime, because of the delay in supplying the information to Centrelink, his youth allowance was suspended. The suspension took place on 21 February 2018.
Mr Roberts acknowledged that he had missed one appointment with a job provider. He missed the appointment with the job provider because of another appointment which he had with a doctor. He received correspondence from Centrelink about the missed appointment. It was rescheduled. Mr Roberts understood that this issue was resolved and was ultimately not a factor in the suspension of the youth allowance.
Mr Roberts believed that the youth allowance had been suspended. He had no understanding that it was cancelled. He did not have any conversations with Centrelink about a cancellation. Centrelink did not provide him with any correspondence notifying him of a cancellation. It was only during the hearing before this Tribunal that he became aware of a cancellation.
Mr Roberts said that there were two main issues about resumption of the youth allowance payment. One of them was the need to submit taxation records about his parent’s income. The other was the need, as he described it, to reinstate his identity. He endeavoured to provide the information to Centrelink online. His repeated attempts to do so were unsuccessful.
Mr Roberts said that the inability to provide the requisite information online meant that he had to provide it in person at a Centrelink office. He was living with his mother and his mother didn’t have a car. He had surgery on his left shoulder in September 2018. Following the surgery, he underwent rehabilitation for several weeks. He said that he could not catch a bus to get to the Centrelink office. The rehabilitation occupied 3 to 4 days per week and involved seeing doctors and attending the Flinders Medical Centre. His grandparents assisted him with transport to the medical appointments.
The claim was made successfully online on 14 November 2018.[3]
[3] T7 p54.
Centrelink letters
On 18 December 2017 Centrelink wrote to Mr Roberts and welcomed him to Centrelink letters online.[4] The purpose of the letter was to advise that most of his Centrelink correspondence would be sent online and not through the mail.
[4] Exhibit 5.
On 8 January 2018 Centrelink wrote to Mr Roberts and advised him that he would be paid youth allowance from 18 December 2017. The letter included information about the amount and breakdown of the payment. Similarly, a letter from Centrelink also dated 8 January 2018 was written to Mr Roberts with details about the payment of youth allowance with a reporting statement enclosed. A third letter also dated 8 January 2018 provided additional information about requirements relating to a reporting statement.[5] Further correspondence was sent from Centrelink to Mr Roberts between 11 January 2018 and 22 January 2018.
[5] Exhibit 5.
By letter dated 31 January 2018[6] Centrelink wrote to Mr Roberts to advise him that his youth allowance had been stopped because he missed an appointment with his employment service provider on 31 January 2018 and did not contact them with a suitable reason for non-attendance. As a result, youth allowance was stopped from 27 January 2018. The letter advised him to call his employment service provider and discuss the reasons for non-attendance and if required, attend a new appointment. If he did not comply with the direction his payment may be cancelled, and he would need to submit a new claim if he wished to receive a payment.
[6] Exhibit 5.
In another letter dated 31 January 2018[7] Centrelink wrote to Mr Roberts stating that it needed proof of his parents or guardian’s income. Centrelink requested a copy of tax assessment notices regarding that income during the 2016 – 2017 financial year within the next 21 days, otherwise his payment may be stopped.
[7] Exhibit 5.
It appears that the issue regarding non-attendance at the employment services provider was clarified in Mr Roberts’ favour as a letter from Centrelink dated 6 February 2018[8] advised him about conditions for the continuation of the youth allowance payment from 27 January 2018.
[8] Exhibit 5.
On 21 February 2018 Centrelink wrote another letter[9] to Mr Roberts about suspension of his youth allowance. It was a notification that Centrelink had not received the tax assessment notices for the parents/guardians together with a warning that if they were not provided, then a consequence may be that he would not continue to receive youth allowance at all.
[9] Exhibit 5.
On 7 March 2018 and 30 April 2018 Centrelink wrote to Mr Roberts.[10] Neither of those letters refer to suspension of the youth allowance. Each letter acknowledges receipt of medical certificates confirming his inability to work and exemption from mutual obligation requirements. The second of the two letters informed Mr Roberts that that he would need to lodge a medical certificate if he still could not work after 14 May 2018.
[10] Exhibit 5.
The next letter from Centrelink to Mr Roberts is dated 1 June 2018.[11] This letter referred to Mr Roberts’ eligibility for a payment. The letter mentioned a contact on 1 June 2018 about eligibility for payment. It recited the necessary steps to be followed. The letter advised Mr Roberts that he must complete his claim or customer declaration form and return it with requested documentation. It specified the various ways in which the completed documents should be returned to Centrelink. They included electronic processes. One pathway was by uploading the documents to a Centrelink online account or, alternatively on the express plus Centrelink mobile application. Alternative non-electronic methods were by mail or by attending a service centre in person. Once Centrelink received the claim and all the requested documentation, they would determine eligibility and contact Mr Roberts with details of that decision.
[11] T11 p120.
The next letter in the chain of correspondence from Centrelink is dated 15 November 2018. Centrelink advised Mr Roberts of its decision to pay him youth allowance from 14 November 2018. The letter included the following[12]: –
“your medical certificate says you are currently unable to work. You do not have to look for work and are exempt from meeting your Mutual Obligation Requirements from 1 September 2018 to 1 December 2018.”
[12] T11 p123.
Centrelink records
Centrelink’s internal electronic records note the cancellation of Mr Roberts youth allowance on 19 May 2018 because of failure to verify parental income. There is no correspondence from Centrelink to this effect.[13]
[13] T10 p80.
The electronic records indicate that Mr Roberts contacted Centrelink on 28 May 2018 regarding change of address/accommodation and details for youth allowance. The record continued: – “the data provided by the customer could not be applied to their record. The following are the answers provided by the customer within the service. Please take action on the data.”[14] The data concerned details of Mr Roberts accommodation and payment of rent.
[14] T10 p99.
The records also refer to a subsequent contact by Mr Roberts with Centrelink on 3 September 2018 regarding a general enquiry for youth allowance. The records referred to a medical certificate apparently lodged on 1 September 2018. The certificate was a Centrelink form and it was lodged by Mr Roberts. It was noted that the certificate was signed by a medical practitioner and included a verification of incapacity from 1 September 2018 to 31 December 2018. This appears to be a reference to a medical certificate completed and signed by Dr Leitch on 30 August 2018.[15]
[15] T9 p66.
A document list in the Centrelink electronic records notes that a medical certificate was accepted on 3 September 2018.[16]
[16] T10 p96.
The online claim for youth allowance on 14 November 2018 is noted in the Centrelink electronic records.[17]
[17] T 10 p101.
An entry on 20 November 2018 relates to a contact by Mr Roberts during which he queried why the payment was not backdated. It was noted that Mr Roberts stated that he had been told the payment would be backdated as he had lodged a medical certificate. However, there was “no indication on record of this.”[18]
[18] T10 p105.
Another entry in the Centrelink electronic records on 20 November 2018 refers to a contact with Mr Roberts in which he expressed his concern once more about Centrelink’s refusal to backdate the claim to June 2018. According to the note Mr Roberts asserted that he had received advice from Centrelink that if he provided all relevant medical evidence his claim would be backdated. The note continues: – “unable to see any evidence to support this claim or if there had been a discussion had with customer regard to backdating due to INCAP. Customer advised that he uploaded a new MC 3/9/2018 which is correct, however did not lodge new claim until 14/11. Clearly there is no evidence regard customer contact so therefore unable to change start date for this reason.”[19]
[19] T10 p107.
An entry in the Centrelink electronic records on 12 June 2019 notes that a review of the decision to cancel the youth allowance is “out of scope for ARO.”[20]
[20] T10 p108.
Medical evidence
A medical certificate dated 1 June 2018, signed by Dr Tim Leitch, refers to Mr Roberts’ left shoulder pain with a date of onset on 6 May 2016. Dr Leitch notes the pain in the left shoulder limits activity with restrictions of movement. Past treatment included steroid injections and analgesics. Dr Leitch records that Mr Roberts was unfit for work or study from 14 May 2018 to 1 September 2018.[21]
[21] T9 p61.
Planned treatment was surgical intervention, namely left shoulder arthroscopy and subacromial decompression.[22] A note from the Flinders private hospital confirms that Mr Roberts was booked for surgery on 14 September 2018.[23] A medical certificate signed by Dr Ryan confirms Mr Roberts had left shoulder surgery on 14 September 2018.[24]
[22] T9 p75.
[23] Exhibit 2.
[24] T9 p77.
A medical certificate from Dr Leitch dated 21 November 2018 notes the surgery which had taken place with further orthopaedic review to occur. Incapacity for work or study is confirmed from 21 November 2018 to 31 December 2018.[25]
[25] T9 p67.
A medical certificate by Dr Wretstrom from the Flinders Medical Centre dated 21 December 2018 refers to the surgery on the left shoulder with incapacity for work or study through to 31 January 2019. Past treatment was noted as subacromial decompression, current treatment was physiotherapy and planned treatment included steroid injections.[26]
[26] T9 p70.
An orthopaedic surgeon, Dr Ling, wrote a letter which confirms that Mr Roberts had surgery on his left shoulder on 3 September 2018. Dr Ling wrote[27]: –
“He did have significant problems with the shoulder for at least 8 weeks prior to the surgery where he was incapacitated from using that shoulder for up to 8 weeks before the surgery.
Post operatively he had difficulty using the shoulder for at least the first 10 – 12 weeks following his surgery. During this time, he had difficulty performing self care and was unable to drive. He advised that he was unable to make a claim for Centrelink payments as he was not mobile and not able to attend Centrelink to lodge his payment.”
[27] Exhibit 4.
Although Dr Ling’s letter refers to surgery on 3 September 2018, the preponderance of the medical records suggests that the surgery took place on 14 September 2018.
Consideration
The Secretary contends that Mr Roberts submitted his claim on 14 November 2018 and does not dispute that he was qualified for the payment on that date.
Further the Secretary contends that the deeming provisions in s13 of the Administration Act do not apply in relation to fixing a start day as Mr Roberts did not lodge his claim for Youth Allowance within 13 weeks or from 1 June 2018, when he started an online claim.
The Secretary acknowledged that Mr Roberts provided a medical certificate on 1 June 2018. In the absence of any discretion in the legislation to extend the lodgement date of the claim beyond 13 weeks it was contended that none of the deemed claim provisions in section 13 of the Administration Act could apply. Accordingly, the start date must be 14 November 2018 when the claim was submitted.
The notes made by the ARO about the reasons for Centrelink’s decision refers to 1 June 2018 as a contact date for the claim for youth allowance. The claim was lodged on 14 November 2018 which is more than 13 weeks after the contact date. Therefore, on this reasoning, the claim cannot be taken to have been made on 1 June 2018. The ARO’s notes include the following: -
“Customer states he was advised by the Department in June that if he kept providing medical certificates he would be back paid until June. However, there is no evidence to support this advice being given to customer.”[28]
[28] T3 p14.
The ARO’s notes also refer to a medical certificate which Mr Roberts provided on 3 September 2018. The notes are as follows: –
“the Department accepted a medical certificate on 3 September 2018, but ARO not satisfied this is a contact day in relation to claiming youth allowance. Customer accessed online services multiple times during the period 3 June 2018 to 13 November 2018 but no evident contacts in discussing entitlements with the department. As no earlier evident contact dates in regard to claiming youth allowance, claim is deemed to have been made on 14 November 2018.”[29]
[29] T3 p14.
The ARO accepted that Mr Roberts had a left shoulder impairment from 6 May 2016, that he contacted Centrelink about claiming youth allowance on 1 June 2018, and that he had shoulder surgery on 14 September 2018. Also, it was determined that Mr Roberts submitted a claim on 14 November 2018.[30]
[30] T3 p10.

The ARO acknowledged that Centrelink received a medical certificate on 3 September 2018, but the ARO was not satisfied this is a contact day in relation to claiming youth allowance.
Under the post-July 2018 deemed claim rules for a vulnerable claimant, the ARO considered the evidence about shoulder surgery on 14 September 2018. The ARO referred to the medical certificates which Mr Roberts provided and concluded nonetheless: – “I am not satisfied that your medical condition prevented you from making reasonable enquiries about your entitlements or prevented you from getting into an office. I am also not satisfied your medical condition prevented you from making a claim or instructing others to make a claim on their behalf… Therefore I have determined that your medical condition was not the sole or principal cause of your failure to make a claim.” [31]
[31] T3 p11.
In determining whether a medical condition was the sole or principal cause of failure to make a claim, the Social Security Guide in part 8.3.3.10 provides that Centrelink must consider whether a person was prevented from getting to a Centrelink office because of the medical condition , whether they had control of their personal affairs and could either make a claim or instruct somebody else to do so on their behalf. The claim must be lodged in a timely manner and it is reasonable to expect a person to instruct a friend or relative to enquire about possible entitlements or to lodge a claim unless their incapacity prevents them from doing so.[32]
[32] T3 p10.
The AAT 1 applied the amended provisions, the post-July 2018 deemed claim rules in coming to its decision based on a contact date of 1 June 2018. The AAT 1 recited and found that none of the circumstances listed in the Determination for a vulnerable claimant applied to Mr Roberts.
In the Secretary’s Statement of Facts, Issues and Contentions it was noted that both the ARO and the AAT 1 applied the post-July 2018 deemed claim rules, that is the amendments to section 13 of the Administration Act and the Determination which came into effect from 1 July 2018. However, the Secretary contended that the amendments do not apply in Mr Roberts’ case as he seeks to be paid youth allowance from 1 June 2018, not on or after 1 July 2018 when the amendments commenced.
The Secretary contended that the only contact which Mr Roberts made prior to the claim being lodged was made on 1 June 2018 which meant that the pre-July 2018 deemed claim rules apply. Under those rules the claim for youth allowance was not lodged within 13 weeks and none of the provisions in section 13 of the Administration Act for a deemed claim applied to the circumstances of Mr Roberts’ case.
This raises an important question about the correct characterisation of the communications between Mr Roberts and Centrelink. That question goes back to the suspension of the Youth Allowance on 21 February 2018. Centrelink suspended the payment because Mr Roberts had not provided his parents tax assessment notices for the 2016/2017 financial year. The correspondence from Centrelink to Mr Roberts dated 7 March 2018 and 30 April 2018 appears to indicate that the suspension was lifted for the reporting periods specified in those letters and ending on 14 May 2018.
It is notable that the next letter from Centrelink, dated 1 June 2018 does not refer to suspension or cancellation of Youth Allowance. Moreover, there is no correspondence after 14 May 2018 from Centrelink to Mr Roberts about cancellation or suspension.
In evidence to the Tribunal Mr Roberts said that he was not aware that the entitlement to Youth Allowance had been cancelled. He thought it was suspended. He understood that he was obliged to provide the requisite information to Centrelink with the aim of getting the suspension lifted. In this context, there were two significant components to the information. One was the letter about parental income. That was taking some time for Mr Roberts to arrange because of circumstances relating to his parents. The other component was the necessity, as Mr Roberts understood it, to provide correspondence from his doctor confirming the date of the proposed surgery and the timeframe for recovery.
The evidence about cancellation of the youth allowance is sparse. On a Centrelink computer printout the following entry appears: – “
“Type reason Status DOE AMR
YAL failed to verify parental income CAN 19 May 2018 364”[33]
[33] T10 p80.
The ARO’s letter to Mr Roberts about the review outcome does not refer to the apparent cancellation on 19 May 2018. Indeed, in that letter the main issues for the review are identified as the correct date for payment of the youth allowance and whether or not Mr Roberts could be classified as a vulnerable claimant in relation to assessing the correct start date.
It has been noted already that there was a considerable amount of correspondence generated by Centrelink to Mr Roberts in January and February 2018 about a variety of matters with varying significance. The suspension of the youth allowance was sufficiently important to result in written notification to Mr Roberts of that suspension by letter dated 21 February 2018.
However, in May 2018, it seems that the apparent cancellation of the youth allowance was not sufficiently important to require and to result in written notification to Mr Roberts of that cancellation. There is no evidence that Centrelink advised Mr Roberts about a cancellation, by letter, by email or verbally.
It was contended for the Secretary that the cancellation of the payment on 19 May 2018 is not a matter for review by this Tribunal primarily because there had not been an internal review by an ARO of that decision. However, an internal review could only follow a request by Mr Roberts in relation to a decision to cancel the payment. That would require notification to Mr Roberts in the first place about the cancellation. There was no such notification either in writing or verbally. Hence there was nothing to activate a request for internal review.
The evidence about cancellation of the youth allowance emerges only upon delving into electronic records and those records are expressed in terminology that is designed for internal, business purposes. Nonetheless, if it is accepted that the question about the propriety of a cancellation is not an issue for the Tribunal then the central issue remains, namely the correct characterisation of the engagement between Mr Roberts and Centrelink at the relevant times in fixing the start date for the payment.
The letter from Centrelink dated 1 June 2018[34] purports to be a letter about a contact from Mr Roberts regarding eligibility for payment of an unspecified allowance. In reality it was part of a continuing series of communications over several months in relation to a suspension and reactivation of a specified allowance, namely youth allowance.
[34] T11 p120.
Mr Roberts arranged for medical certificates to be provided to Centrelink as best he could. There was a considerable delay in the provision of the required information about parental income. Eventually that information was provided. When it was provided the payment was re-commenced. Mr Roberts provided medical and financial information which was sufficient to confirm his entitlement for youth allowance at 14 November 2018.
Mr Roberts gave unchallenged evidence about his medical condition before and after the surgery on 14 September 2018. He gave evidence about the process of recovery and rehabilitation, the difficulties that he encountered in carrying out daily transactions, his reliance upon others during that time and the problems that he faced in obtaining the information about parental income.
The Tribunal agrees with the Secretary’s contention that the pre-1 July 2018 deemed claim provisions apply to the contact which Mr Roberts made with Centrelink on 1 June 2018 through the provision of the medical certificate at that time. In relation to that contact with Centrelink the pre-July 2018 deemed claim provisions do not enable an exercise of discretion regarding the start date as the online claim was approximately 23 weeks subsequent.
However, the Tribunal does not agree with the ARO’s finding that the medical certificate dated 3 September 2018 was not a contact date. In fact, it was a significant contact which Mr Roberts made in the course of communications over many months with Centrelink to reinstate the claim for youth allowance. The post July 2018 deemed claim provisions apply to that contact. The Tribunal is satisfied that Mr Roberts was a vulnerable claimant under the Determination unable to lodge a claim on the contact day as a result of being: –
…(c) hospitalised or suffering from a temporary incapacity arising from a medical condition
…(k) subject to other circumstances beyond the person’s control.”[35]
[35] T4 p50.
The online claim form for youth allowance was lodged on 14 November 2018 which is within the period of 13 weeks following the contact. The Tribunal finds that the correct commencement date for the payment of youth allowance to Mr Roberts is 3 September 2018.
DECISION
The decision under review is set aside. The start day for Mr Roberts youth allowance is 3 September 2018.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

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Administrative Assistant Legal
Dated: 4 August 2020
Date of hearing:   22 May 2020
Applicant:  In person
Respondent’s representative:   Mr Riley Calaby, Department of Social Services

[2020] AATA 2638

4 August 2020

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