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

[2021] AATA 5286

Semmler and Secretary, Department of Social Services (Social services second review) [2021] AATA 5286 (15 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2639 & 2021/2640

Re:Allan Semmler & Raelene Semmler

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:15 September 2021

Place:Adelaide

The Tribunal affirms the decisions to grant Age Pension to Mr and Mrs Semmler from 27 October 2020.

......................[SGND]............................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – pensions - age pension - claim for age pension – date of claim – start date – decision affirmed

Legislation

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)

REASONS FOR DECISION

Senior Member K Millar

15 September 2021

INTRODUCTION

1. This application is about the date from which Mr and Mrs Semmler should be paid age pension. A delegate of the Secretary found they should be paid age pension from 27 October 2020, and this decision was affirmed by an authorised review officer and at Tier 1 of this Tribunal. Mr and Mrs Semmler say they were advised when they attended a Centrelink office on 1 July 2020 this would be regarded as their start day for age pension, and state this is the correct date from which they should be paid age pension.

   MR AND MRS SEMMLER’S CASE

2. Mr Semmler and Mrs Semmler state they retired and sold their business on 29 June 2019, and received no income from this date except for a small amount for work completed in the 2018 – 2019 financial year.  After this, they lived on their savings.  Mr Semmler states they worked 10 years past the retirement age of 65 and did not rely on public payments or concession cards and have saved the public over $100,000 by not applying for a pension at 65 years.  He states they are being penalised for the incompetence of a Centrelink employee regarding the backdating of the commencement of their payment from 1 July 2020.

3. Mr and Mrs Semmler claim they were told when they attended a Services Australia office on 1 July 2020 they would be paid a part pension from this date.  Mr Semmler states it took numerous meetings with their accountant and liaison with the Australia Taxation Office to obtain the documents required by Centrelink for the claim.

   THE TRIBUNAL PROCEEDINGS

4. Mr and Mrs Semmler were directed to provide a chronology of the contact they claimed to have had with Centrelink between 1 June 2020 and 27 October 2020.

5. In response, Mr Semmler wrote that dealing with this has become too hard, and they have presented their case on numerous occasions at various appeals over the last two years. 

6. He states that when they went to the Centrelink office at Teatree Gully on 1 July 2020, they were told to provide large amounts of documents about their business interests and to provide de-registration documents for the business.  This entailed meeting at their expense with their accountant to get the relevant information for the Australian Taxation Office to obtain de-registration notices.  He states that at the meeting on 1 July 2020 they were told that although they needed to supply the paperwork, they had registered and would receive a part pension from that date.  He states they waited three months for the Australian Taxation Office to finalise the paperwork which they delivered to Centrelink on 27 October 2020 and were then informed the part pension would only be paid from that date. 

7. A hearing was listed for this matter on 6 September 2021, however on 2 September 2021, Mr Semmler said he and Mrs Semmler would be unable to attend as he has had a hip replacement, requires a knee replacement, and had an urgent dental appointment. Mr Semmler had advised he and Mrs Semmler were unable to attend a hearing in person in the immediate future. 

8. As Mr Semmler claimed he and Mrs Semmler had attended an office and were given advice, the Tribunal considered it necessary to hear from Mr and Mrs Semmler separately in person and that a telephone hearing was not appropriate. Mr Semmler stated as it was not possible for them to attend for a hearing they reluctantly agreed for the matter being heard in their absence. The Secretary consented to the matter being decided without a hearing.   

   LEGISLATIVE PROVISONS

9. The legislative provisions that apply to the date a person can be paid an age pension are contained in the Social Security (Administration) Act 1999 (Administration Act), and the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (the Determination).

10. Under s 11 of the Administration Act, a person who wants to be granted an age pension must make a claim for the payment.  A person can make a claim in writing in accordance with a form approved by the Secretary, or in another manner approved by the Secretary.

11. In certain cases, a claim may be deemed to have been made on an earlier date.  If a person’s circumstances fall within the Determination, the person lodges his or her claim within 14 days of contacting the Department, and the person is qualified for the payment, the person is taken to have lodged his or her claim on the date the Department was contacted.[1]

    [1]  Section 13(1) of the Administration Act.

12. According to the Determination, a person is in a class of persons if he or she is unable to lodge a claim on the contact day because, at any time in the relevant period, the person is:

    (a)subject to domestic or family violence;

    (b)homeless;

    (c)hospitalised or suffering from a temporary incapacity arising from a medical condition;

    (d)released from prison or psychiatric confinement;

    (e)experiencing high stress associated with a relationship separation;

    (f)a parent of a dependent child born during the relevant period;

    (g)affected by the death during the relevant period of an immediate family member;

    (h)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;

    (i)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;

    (j)a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or

    (k)subject to other special circumstances beyond the person’s control.[2]

    [2] Regulation 5 of the Determination.

13. The time in which a claim is deemed to be made may also extend to a period of over 14 days and up to 13 weeks where the person’s circumstances fall within the Determination and the person was suffering from a medical condition that significantly adversely affected their ability to lodge the claim, or was the carer of a person with a medical condition, or it was not reasonably practicable for the person to lodge the claim earlier.[3]  This does not apply to periods of more than 13 weeks before the claim was made. 

    [3] Section 13 of the Administration Act.

14. Another potential exception to making a claim is where the person became qualified for a new payment while receiving another income support payment, or immediately after another income support payment ceased.[4] There are other exceptions for incorrect claims,[5] and certain claims for carer payment.[6]

    [4] Section 12 of the Administration Act.

    [5] Section 15 of the Administration Act.

    [6] Section 15A of the Administration Act.

15. Other legislative provisions relate to the start date for a payment. The start date is the date a social security payment becomes payable to a person,[7] and is worked out according to Schedule 2 to the Administration Act.[8]

    [7] Section 41 of the Administration Act.

    [8] Ibid.

16. In general, the start date is the date on which the claim was made.[9]  

    [9] Clause 3(1) of Schedule 2 of the Administration Act.

17. There are circumstances in which this date can be backdated, for example if a person’s claim is lodged within 14 days of his or her partner’s claim, a transferee to a  pension or benefit, a claim made soon after childbirth, a person who is incapacitated, and a claim after the death of a partner, and claims that relate to Disaster Relief Payments.[10]

    [10] Clauses 8-13 of Schedule 2 of the Administration Act.

    APPLICATION OF THE PROVISIONS

18. Centrelink records show that Mr and Mrs Semmler attended the Modbury office on 1 June 2020.[11]  The records from this attendance show that they updated their contact details and made an enquiry about age pension, as well as providing a birth certificate.[12]  

    [11] T20, page 387; T20, page 407.

    [12] T20, pages 388 – 389; T20, page 408.

19. A letter issued to Mrs Semmler in a previous name and at a previous address was issued 1 June 2020 to show she had registered for self-service through the myGov website.[13] 

    [13] T21, page 423.

20. The claim form for Age Pension signed by Mr and Mrs Semmler is dated 4 June 2020.[14]  Centrelink records show the date this form was received was 27 October 2020.[15] 

    [14] T8, page 98.

    [15] T6, page 57.

21. There is no record of a claim being lodged on 1 June 2020. There is also no record of Mr and Mrs Semmler attending an office on 1 July 2020, or a claim being made on this date.  The date on the claim form shows they may have intended to claim at an earlier date, but does not show they lodged this claim at an earlier date. 

22. This is not to discount Mr Semmler’s recollection they were advised that a claim would be backdated to a particular date, however there is no record of a claim being lodged until 27 October 2020.

23. Mr and Mrs Semmler’s circumstances do not meet any of the requirements in the Determination in which a claim could be deemed to be made at an earlier date, or their start date could be considered to be earlier than the date they lodged their claim.  The claim was not lodged until 27 October 2020.  

24. The Tribunal understands Mr Semmler feels aggrieved by what he says was the provision of incorrect advice, however the Tribunal must apply the legislation to the circumstances as they occurred, and in this case   the claim was lodged on 27 October 2020.     

    DECISION

25. The Tribunal affirms the decisions to grant Mr and Mrs Semmler age pension from 27 October 2020.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

........................[SGND]..........................

Associate

Dated: 15 September 2021

Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Riley Calaby, Services Australia