Shaikh and Secretary, Department of Social Services (Social services second review) - [2018] AATA 458

Shaikh and Secretary, Department of Social Services (Social services second review) [2018] AATA 458 (6 February 2018)
Division:GENERAL DIVISION
File Number: 2017/1516
Re:Jazib Shaikh
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:6 February 2018
Date of written reasons: 8 March 2018
Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 February 2017 is set aside and in substitution it is decided that the applicant’s claim for job commitment bonus may be made by 27 July 2016.
...................................[sgd]...................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Job Commitment Bonus – whether applicant made claim for payment of bonus within 90 days of becoming eligible – whether there are any special circumstances preventing the applicant from making the claim within 90 days – special circumstances – failure to receive electronic or SMS notification – decision set aside and substituted.
LEGISLATION
Electronic Transactions Act 1999 (Cth)
Social Security Act 1991 (Cth), s 860
Social Security (Administration) Act 1999 (Cth), s 27D
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Dranichnikov v Centrelink [2013] 75 ALD 134
Groth v Secretary Department of Social Security [1995] 40 ALD 251, [1995] FCA 1708
Nicholson v Secretary, Department of Social Services (2016) AATA 630
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Rahim [2010] AATA 946
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
8 March 2018

The Tribunal is thankful to the parties for the efficient and helpful presentation of their evidence and submissions. In particular, the Tribunal commends the applicant, Jazib Shaikh, for his detailed evidence, his attention to detail and the documentary evidence he provided the Administrative Appeals Tribunal with, to support his submissions.
In terms of the factual situation in this case, there is very little in contention between the parties. The applicant gave very forthright, clear evidence and did his best to answer all the questions that he was asked. The Tribunal has no reason to doubt his evidence and the respondent did not seek to challenge it in any material way. The matter turned on the interpretation of the law as it existed at the time.
It should be noted that the Job Commitment Bonus has been repealed since 2016. This particular benefit, the Job Commitment Bonus, does not exist anymore and has not since the end of 2016.
This Tribunal’s role is to look at what the law was at the particular time and what the applicant was entitled to.
It was common ground that the benefit, the subject of this appeal, was a benefit that Mr Shaikh was entitled to. He had completed the 12 months of paid work that was a prerequisite. He was in the right age group to qualify and, accordingly, it was a benefit which he could claim. He had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Shaikh and Secretary, Department of Social Services (Social services second review) [2018] AATA 458
Case: [2018] AATA 458
Decision Date: 6 February 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr. Shaikh against a decision by the Secretary of the Department of Social Services. The dispute centred on Mr. Shaikh's claim for a Job Commitment Bonus (JCB) payment. It was common ground that Mr. Shaikh was entitled to the bonus, having met the prerequisite of 12 months of paid work and being within the eligible age group. The core issue was whether he had lodged his claim within the prescribed 90-day period following his eligibility, and if not, whether any special circumstances prevented him from doing so.

The Tribunal was required to determine two primary legal questions: first, whether Mr. Shaikh made his claim for the JCB payment within 90 days of becoming eligible; and second, if he did not, whether there were any special circumstances that prevented him from lodging his claim within that timeframe. The eligibility date was agreed to be 8 April 2016, meaning the claim should have been lodged by 7 July 2016. Mr. Shaikh became aware of the bonus in early July 2016 and attempted to lodge his claim on 7 July 2016, the final day of the 90-day period.

The Tribunal found that while Mr. Shaikh's personal circumstances, such as his brother-in-law's potentially life-threatening situation, did not individually constitute "special circumstances" as defined by case law, his actions on the final day were critical. Mr. Shaikh made multiple attempts to submit his claim on 7 July 2016, but these were unsuccessful due to a computer malfunction on the Department's end. The Tribunal reasoned that the legislation allows for claims to be made on the last day of the period, and Mr. Shaikh's attempts to do so, despite the system failure, meant he had done all he could to lodge his claim within the timeframe. The Tribunal concluded that it was not Mr. Shaikh's fault that his claim did not go through, and the fact that he attempted to lodge it on the 90th day did not negate his eligibility.

Consequently, the Tribunal set aside the previous decision. In substitution, it was decided that Mr. Shaikh's claim for the Job Commitment Bonus was validly made, with the effective date of lodgement being considered 27 July 2016, thereby allowing his claim to proceed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It was common ground that the benefit, the subject of this appeal, was a benefit that Mr Shaikh was entitled to. He had completed the 12 months of paid work that was a prerequisite. He was in the right age group to qualify and, accordingly, it was a benefit which he could claim. He had 90 days within which to claim it when it became due, that is, at the end of 12 months of full time employment, which the parties agreed, was in effect 8 April 2016. The applicant started work on 8 April 2015 completing 12 months at midnight on 7 April 2016. BACKGROUND The reviewable decision is a decision from the Social Services and Child Support Division of this Tribunal (‘AAT 1’) on 22 February 2017 which affirmed a decision made by an authorised review officer from the respondent Department made on 29 September 2016, to reject Mr Shaikh’s claim for the Job Commitment Bonus (‘JCB’) payment. The Tribunal must look at whether the applicant was qualified to receive a Job Commitment Bonus Payment. Both parties accept he was so entitled. The Tribunal must also look at whether he made his claim for payment within 90 days of being eligible and, if not, whether there were any special circumstances that prevented the applicant from making his claim within 90 days. There are some particular features to this case which do certainly make it different, and is one which the respondent’s representatives could not find case law directly in point. The Tribunal was in a similar position and the applicant is not a lawyer and could not assist on that point. EVIDENCE In May 2013, the applicant contacted the respondent about his intention to make a general claim to the Department of Social Services for Newstart allowance. He gave his telephone contact number, and indicated that he wanted to be automatically subscribed to the electronic messaging service (‘SMS’). He was informed by SMS sent to his telephone number on 24 May 2013 that this had duly occurred. He completed, on 2 July 2013, a Customer Declaration Form for Newstart Allowance and gave his mobile phone number. On 11 July 2013, he subscribed to online letters with the notification method being by SMS. He was sent on that day a “Welcome to Centrelink” online letter notice, and that was sent to that mobile number. Also, on that day, a “Welcome to Centrelink” online letter status was delivered to his online account, and that included his obligation to check his online letters regularly. On 2 July 2014, he was sent a notice telling him he may be eligible for a Job Commitment Bonus of $2,500 after 12 months of continuous work, and that he had 90 days to make the claim once he became eligible. He is uncertain as to whether he got that notice. He simply cannot recall receiving it. The first time he seems to have been aware of that bonus was in early July 2016, but he indicated to the Tribunal that he may have received that earlier 2014 notice, but had no recollection of that. The applicant supplied to the Tribunal records, which go back to November 2014, of all the notifications that he received. I will be addressing the notifications shortly.

Evidence

Evidence Before The Court

There are some particular features to this case which do certainly make it different, and is one which the respondent’s representatives could not find case law directly in point. The Tribunal was in a similar position and the applicant is not a lawyer and could not assist on that point. EVIDENCE In May 2013, the applicant contacted the respondent about his intention to make a general claim to the Department of Social Services for Newstart allowance. He gave his telephone contact number, and indicated that he wanted to be automatically subscribed to the electronic messaging service (‘SMS’). He was informed by SMS sent to his telephone number on 24 May 2013 that this had duly occurred. He completed, on 2 July 2013, a Customer Declaration Form for Newstart Allowance and gave his mobile phone number. On 11 July 2013, he subscribed to online letters with the notification method being by SMS. He was sent on that day a “Welcome to Centrelink” online letter notice, and that was sent to that mobile number. Also, on that day, a “Welcome to Centrelink” online letter status was delivered to his online account, and that included his obligation to check his online letters regularly. On 2 July 2014, he was sent a notice telling him he may be eligible for a Job Commitment Bonus of $2,500 after 12 months of continuous work, and that he had 90 days to make the claim once he became eligible. He is uncertain as to whether he got that notice. He simply cannot recall receiving it. The first time he seems to have been aware of that bonus was in early July 2016, but he indicated to the Tribunal that he may have received that earlier 2014 notice, but had no recollection of that. The applicant supplied to the Tribunal records, which go back to November 2014, of all the notifications that he received. I will be addressing the notifications shortly. On 4 July 2014, an SMS message was sent to his nominated mobile number informing him that he had a new Centrelink message, which, it seems, was that message of 2 July. It seemed that quite often the SMS would be after a notice was sent. In some cases, it seems quite likely up to three weeks afterwards, referring him back to a notice and that seemed to be a modus operandi undertaken by Centrelink in relation to notifying him On 10 February 2015, he discussed his Newstart Allowance with a Departmental Officer. He commenced employment on 1 March 2015. It was not paid employment and he did not seek to indicate that he was eligible for any other allowances until such time as his paid employment commenced as at 8 April 2016. At all times, the required documentation is supplied by him to the respondent department. The conversations he appeared to have with Centrelink indicated that of a very honest claimant and a person who was not trying to claim for things that he was not entitled to. He was quite adamant that when he commenced work, he was working initially on an unpaid basis. The Tribunal notes that it may have been easy for the applicant to say that he commenced employment from 1 March 2015 and the 12 months commenced from that time, but he was always, quite meticulous in terms of giving the correct information.

Decision

Reasons for decision

For the reasons given above the decision of the AAT1 is set aside. DECISION The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 February 2017 is set aside and in substitution it is decided that the applicant’s claim for job commitment bonus may be made by 27 July 2016.

Ratio Decidendi

Legal Principle Established

It does seem, however, that when his problems faded away and were not such an issue, he did check his mailbox and thus became aware of what he was entitled to and made the application. CONSIDERATION As indicated earlier, this Tribunal has to decide whether the applicant made his claim for payment of the bonus within 90 days of becoming eligible and if not, whether there were any special circumstances that prevented him making that claim within 90 days. His circumstances, whilst serious, for the reasons given above, with the possible exception of the potentially life threatening situation in relation to his brother in law, did not amount to special circumstances. However that is not the end of it. I am satisfied that he made an attempt on about five occasions on the evening of 7 July 2016 to submit his claim. He had 90 days to do so. It is the Secretary’s position that special circumstances have to apply to prevent the person from making a claim within that period, and that is the whole period. One day simply is not enough. He had 89 other days in which to make a claim. I understand that submission, but what I have to consider is whether the applicant made his claim for payment of the bonus within 90 days of becoming eligible, and if not, are there special circumstances to prevent him. This is not a situation of a man making a claim three weeks after (which is when his actual claim went through). The applicant is trying to make his claim on the last day and although it might have been on the 90th day, it is still within the timeframe. He is entitled by law to make a claim on the last day allowed and had the system been working, that claim would have gone through and we would not be here. The applicant has done everything he can to attempt to make his claim within the claim period. It is not his fault that it did not go through. It was some computer malfunction at the other end. Although it would have been appropriate if he had made it at some other time during the 90 day period, the fact he did it on the last day does not affect his situation. As already indicated, there is good reason why he did not make his claim until day 90. They in themselves do not amount to special circumstances but they do explain why he did not make that claim until the last minute. It is not because he was slack. I am mindful of Groth as paraphrased by the AAT1 who did not seem to consider this issue any further apart from just saying, “Mr Shaikh further submitted that he had difficulties lodging his claim”. I am not sure if this evidence was available to the AAT1. Special circumstances are not defined in the legislation, but there is substantial case law that establishes that special circumstances must be unusual and such as to result in an outcome that would be unfair or unreasonable if not given to consideration. “Unfair and unreasonable” are two words that are quite important. Indeed, in Groth’s case, it says “unfair, unintended or unjust.” The legislation and the guidelines clearly indicate that there is a 90-day period. For whatever reason, the legislature intends to give people 90 days. The legislation envisages, in some instances, people not putting in their application until the last day.