Schleu and Secretary, Department of Family and Community Services
[2005] AATA 723
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 723
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/342
GENERAL ADMINISTRATIVE DIVISION ) Re JACK SCHLEU Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date 29 July 2005
Place Sydney
Decision
The Administrative Appeals Tribunal affirms the decision under review.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – pensioner education supplement- start date of payments – whether Applicant entitled to PES prior to 13 April 2004 – no evidence that Applicant made claim prior to 13 April 2004 - circumstances do not exist in which it is appropriate to backdate the start date of PES claim – decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 – Schedule 2, clause 3, 30, 31
REASONS FOR DECISION
29 July 2005 Ms N Isenberg, Member DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was Centrelink’s decision, dated 12 November 2004, to refuse to pay Mr Schleu’s Pensioner Education Supplement (“PES”) from 12 February 2004, the date of commencement of his course. The decision to refuse this request was affirmed by an Authorised Review Officer (“ARO”) on 10 December 2004. This decision was reviewed and affirmed by the Social Security Appeals Tribunal (“SSAT”) on 9 February 2005.
ISSUE BEFORE THE TRIBUNAL
2. The issue before the Tribunal is :
(a)Whether Mr Schleu can be paid PES prior to 13 April 2004, the date on which Centrelink’s records show that he applied for the payment.
LEGISLATION
3. The relevant legislation is contained in Clause 3 of Schedule 2 of the Social Security (Administration) Act 1999 (‘the Act”), which sets out the general rule for determining the date from which a social security payment can be paid (start date). Clause 3(1) states:
“Start day-general rule
3(1) If:
(a)a 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.”
THE HEARING
4. A hearing was held before me on 5 July 2005 at which Mr Schleu appeared without representation and the Secretary, Department of Family and Community Services (“the Respondent”) was represented by Alan Duri, an advocate from the Advocacy and Administrative Law Team at Centrelink.
5. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence, together with a statement of payments made to Mr Schleu.
6. Mr Schleu also tendered a bundle of documents. Some of these were included in the T documents, others related to a dispute which the Community Justice Centre is attempting to mediate, and another related to an apparent dispute with a teacher at TAFE about the use of grinding wheels and particle masks.
7. Mr Schleu said he had more documents at home, including a letter from Rhonda Willis of Centrelink that may have pre-dated 13 April 2004. He also said that he had bank statements which proved that Centrelink had made errors in his payments. Mr Schleu was given the opportunity to forward these documents to the Tribunal for my consideration but he declined.
8. Mr Schleu gave sworn evidence and was cross-examined on behalf of Centrelink. I also asked him questions.
BACKGROUND
9. The following facts, extracted from the Respondent’s Statement of Facts and Contentions, were not in dispute and are recorded by way of background. It was Mr Schleu’s position, though, that they do not represent the whole story. He believes information was deliberately omitted.
“2 Aug 01 Mr Schleu was granted disability support pension. 9 Jan 04 Mr Schleu filled in an enrolment form for 7532 Advanced Diploma of Fine Arts. T29/51 and T29/53 2 Feb 04 Mr Schleu was enrolled at St George College TAFE. T37/82 March 04 Mr Schleu saw Lisa Anderson, Head Teacher, Fine Arts of St George College TAFE that he made a mistake in his enrolment form and that he should be enrolled in course 7529 Statement of Attainment in Advanced Creative Fine Arts. T29/51 13 Apr 04 Mr Schleu lodged a claim for PES with the Centrelink Customer Service Centre in Bankstown. T3/8 20 Apr 04 His PES claim was sent to the Ingleburn Student processing Centre (IGLSPC). T4/11 21 Apr 04 Centrelink requested Mr Schleu to provide proof from TAFE of his weekly study hours. T6/13 22 Apr 04 Mr Schleu provided TAFE enrolment form. T7/14 29 Apr 04 Centrelink acknowledged receipt of TAFE enrolment form but the form was altered so Mr Schleu was requested to provide TAFE validation of the alterations within 14 days. T8/15 & T9/17 14 May 04 Centrelink rejected Mr Schleu’s PES claim because he did not provide the requested information. T10/18 20 May 04 Mr Schleu contacted Centrelink about the rejection and said he will provide the TAFE validation. T11/20 25 Jun 04 Mr Schleu contacted Centrelink Call Centre. He said that he claimed PES in March 2004 and has not received PES. He was advised to provide proof of enrolment (POE). T13/22 2 Jul 04 Mr Schleu’s TAFE enrolment form which he provided on 30 June 2004 was sent to Ingleburn Student Processing Centre. T14/24 20 Jul 04 Mr Schleu was advised that the enrolment form he provided did not show the number of hours he studied and the full details of the course. T17/29 29 Jul 04 Centrelink sent a letter to Mr Schleu advising him to complete the attached PES form within 14 days. 2 Aug 04 Mr Schleu contacted Centrelink Call Centre. He was upset to have received another PES claim form when he had already lodged one in February 2004. T20/33 3 Aug 04 Mr Schleu was advised that he now needs to complete a PES claim form for semester 2 as he is enrolled in a different course to semester 1. T16/27
Mr Schleu lodged another claim for PES. T25/4317 Aug 04 Lisa Anderson, Head Teacher, Fine Arts of TAFE provided a fax explaining the 2004 TAFE Enrolment of Mr Schleu. T29/51-67 11 Nov 04 Mr Schleu was granted PES from 13 April 2004. T32/73” CONSIDERATION OF THE EVIDENCE
10. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
11. Mr Schleu told me that, on 29 January 2004, he enrolled at TAFE at Kogarah. On his way home to Yagoona that day, he stopped off at the Bankstown Centrelink office and saw a female clerk who photocopied his TAFE enrolment document. He was given a PES application form, which he first completed at the small table in the office, and then handed in. He said he was told there was a six week delay in processing. When he had received no payment, which was expected in about mid March, he made some telephone enquires. He was not sure when he did this or to whom he spoke. He said he then received a letter telling him that Centrelink did not have an application so he went in straight away and had to ‘start again’. He did this, he said ’about 10 times’.
12. In cross-examination Mr Schleu said that it ‘could have been more than 10 times’, but he lodged three forms. The second one was ‘after the (six-week) wait’. He said that it was possible that he lodged a form on 13 April 2004 but that he did not know.
13. He said he was unconcerned about money. Instead, he is interested in his study and his career.
14. Mr Schleu contended that Centrelink had deliberately omitted his earlier application from the ‘big book of everything‘ (as he called the T documents), and that he had received correspondence dating earlier than 13 April 2004 from Rhonda Willis, a person in Centrelink who, he alleges, has been responsible for harassing him, and against whom he has brought a complaint. As discussed above, he did not have that letter at the hearing, nor did he wish to provide it. He said that all that material in relation to the harassment issue was also missing.
15. Mr Duri pointed to a copy of the letter from Ms Willis to Mr Schleu dated 29 April 2004 (T9/17), and submitted that this was the earliest correspondence from Ms Willis to Mr Schleu. He said he had personally searched Centrelink’s entire records in relation to Mr Schleu and had recovered no earlier letter. More significantly, there was no earlier application for PES than that of 13 April 2004, nor any earlier reference to an enquiry about PES for the 2004 year.
16. I was also guided through the numerous records in the evidence of contacts with Mr Schleu, all of which post-date 13 April 2004.
17. I accept that it is Mr Schleu’s position that he has been victimised by Centrelink and that he has been harassed by its officers. He has complained to the Ombudsman. Certainly, it appears that payment of his PES was delayed for some time and that it was not until November 2004 that it was finally determined that he had an entitlement to PES at all. In those circumstances, Mr Schleu’s frustration is, perhaps, understandable.
18. However, as I explained to Mr Schleu, the matter before me turns on whether I can be satisfied the he lodged his application for PES before 13 April 2004, in which case he would be entitled to some back payment.
19. Unfortunately, I am unable to reach that view. There is no material in Centrelink’s file which would suggest that Mr Schleu had lodged an application for PES earlier than 13 April. In coming to this view I observe that, following the application on that date, the file records various activities undertaken to investigate the claim with a view to processing it in his favour. I find that he is mistaken as to the timing of his lodgement of his application. I note that he said he was unconcerned about the money and this may have accounted for his delay in lodging a claim.
20. I find there to be no evidence that Mr Schleu lodged a PES claim prior to 13 April 2004.
21. Therefore pursuant to Clause 3(1) of Schedule 2 of the Act, the start date of Mr Schleu’s PES can only be on 13 April 2004.
22. However, clauses 30 and 31 of Schedule 2 of the Act provide that in certain circumstances, the start date for PES payments can be backdated. Clause 30 states:
“Pensioner education supplement
30. If:
(a)a person makes a claim for a pensioner education supplement; and
(b)when the claim is made, the person is qualified for the supplement; and
(c)the claim is made within 4 weeks after the person became qualified for the supplement;
the person's start day in relation to the pensioner education supplement is the day on which the person became qualified for the supplement.”
23. I am satisfied that Mr Schleu first became qualified for PES on 12 February 2004, the date on which he enrolled at TAFE. However, he is not entitled to the benefit of clause 30 as he has been found not to have lodged a claim for PES until 13 April 2004 which is more than four weeks after he first qualified for PES.
24. Clause 31 states:
“Pensioner education supplement: claim before 1 April
31 If:
(a)a person makes a claim for a pensioner education supplement after the beginning of a calendar year but before 1 April in that year; and
(b)the person's course of education is a full year course that begins before 1 April in that year; the person's start day in relation to the pensioner education supplement is the first day on which the person is qualified for pensioner education supplement on or after 1 January in that year.”
Clause 31 does not apply to Mr Schleu as he did not lodge a PES claim until 13 April 2004, that is, too late to take advantage of this clause.
25. I therefore find that the decision that 13 April 2004 was the earliest start date available to Mr Schleu in respect of his PES claim was correct.
26. In the course of the hearing the advocate for the Respondent mentioned that Mr Schleu may wish to make a claim for compensation for Detriment Caused by Defective Administration. I make no comment in relation to that matter.
DECISION
27. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis .....................................................................................
AssociateDate of Decision 29 July 2005
Date of Hearing 5 July 2005
Representative for Applicant Self
Representative for Respondent Alan Duri
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