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

[2011] AATA 257

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5209

DIVISION		)
Re		Paul Safi

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of Decision  28 March 2011

Date of Written Reasons     18 April 2011

Place  Sydney

Decision The decision under review is affirmed

................[sgd]..............................

Senior Member

CATCHWORDS

SOCIAL SECURITY -  NEWSTART ALLOWANCE – start date for payment – ordinary waiting period – decision under review affirmed

Social Security Act 1991,

Social Security (Administration Act) 1999, ss 4, 13, 23, 41, Sched 2

REASONS FOR DECISION

18 April 2011 Senior Member Jill Toohey           

1.At a hearing on 28 March 2011, I affirmed a decision of the Social Security Appeals Tribunal that payment of newstart allowance to Mr Paul Safi was subject to an ordinary waiting period, meaning that it was payable from 7 July 2010, and not before.  Mr Safi has asked for written reasons.  These reasons reflect those given orally at the conclusion of the hearing.

Background

2.On 30 June 2010, Mr Safi contacted Centrelink to inquire about applying for newstart allowance. On 9 July 2010, he lodged an application form. By virtue of s 13 of the Social Security (Administration) Act 1999, he is taken to have made his claim on 30 June 2010.

3.On 27 July 2010, Centrelink advised Mr Safi that his claim had been accepted and he would receive payment from 7 July 2010.  Although the notice sent to Mr Safi did not say so, the commencement date was calculated by applying an ordinary waiting period of seven days from the date of his claim.

4.Mr Safi disputes the decision to pay him with effect from 7 July 2010 and says he is entitled to payment from 30 June 2010, when he is taken to have made his claim.  The decision has been affirmed by an authorised review officer in Centrelink and by the Social Security Appeals Tribunal.

The general rule: payment starts from when a claim is made

5.The relevant legislation is in the Social Security Act 1991 (SS Act) and the Social Security (Administration) Act 1999 (SSA Act).

6.Commencement of a social security payment is governed by Division 3 of Part 3 of the SSA Act.  The starting point is s 41 which provides:

(1)Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment. (italics added)

7.A person’s start day is calculated in accordance with Schedule 2 (“Rules for Working out Start Day”).  The general rule is that if, on the day that a person makes a claim for a social security payment he or she is qualified for the payment, the person's start day is the day on which the claim is made: clause 3.

8.As s 41(1) makes clear, the general rule that payment starts from the day on which a claim is made applies unless another provision of the social security law provides otherwise.

9.The SSA Act forms part of the social security law: s 4 of the SSA Act.

Payments subject to a waiting period

10.A number of Centrelink payments are subject to an exclusion period during which they are not payable even though the person qualifies for the payment.   Exclusion period includes a waiting period, which in turn includes an ordinary waiting period”: see SS Act s 23; SSA Act schedule 2, clause 5 (2)(a).

11.If a person qualifies for newstart allowance, their claim must be granted if it would be payable apart from the application of a waiting period: SSA Act s 37(2).

12.If a person is subject to an exclusion period, their start day is the next day after the exclusion period ends: SSA Act schedule 2, clause 5(1).

13.An ordinary waiting period, in the case of newstart allowance, is seven days: SS Act s 621. 

Exemption from the waiting period

14.A person may not be subject to an ordinary waiting period if they come within the limited exemptions in s 620 of the SS Act.  However, Mr Safi does not contend, and there is no evidence to suggest, that he satisfies any of these exemptions.

Mr Safi’s claim for newstart allowance

15.There is no question that Mr Safi satisfied the criteria for newstart allowance on 30 June 2010 when he made his claim.  The question is what his correct start day is.

16.Mr Safi contends that his start day is 30 June 2010, when he made his claim, and that he should have been paid from that date.  His argument was not altogether easy to follow.  He refers to the decision under review as an “invalid and unconstitutional” application of the social security law.  He says he recognises that a seven day ordinary waiting period affects a person’s start date but he does not think it actually has any effect on him.

17.As I understand his argument, Mr Safi contends that the seven day waiting period means the time that a person must wait before “receiving” (in the sense of being allocated) their start day but that, having “received” it, the start day is the date the claim was lodged. 

18.That interpretation is simply not to be found in the legislation.  Even if I have misunderstood Mr Safi’s argument, the provisions of the legislation are clear. They might not be entirely easy to follow, and I understand that terms such as “payable” might have a different meaning to someone like Mr Safi who has accounting experience.  However, read as a whole, there can be no mistaking the meaning of the legislation. 

19.If Mr Safi is correct, then the phrase “Unless another provision of the social security law provides otherwise” in s 41 has no content or meaning and nor would any of the other provisions by which a start day is determined.

Conclusion

20.I am satisfied that Centrelink and the Social Security Appeals Tribunal correctly determined that Mr Safi qualified for newstart allowance on 30 June 2010 when he made his claim, that he was subject to an ordinary waiting period of seven days, and that the allowance was payable to him with effect from 7 July 2010.

21.The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

Signed:         ..................................[sgd]..............................................
           Diana Weston, Associate

Date of Hearing  28 March 2011
Date of Decision  28 March 2011
Date of Written Reasons          18 April 2011
Applicant  Self-represented   
Solicitor for the Respondent     Mr J Larcombe, Centrelink Advocacy Branch