SHAYER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 304
•29 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 304
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0070
GENERAL ADMINISTRATIVE DIVISION ) Re NATASSJA SHAYER Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date29 April 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]..............
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Youth allowance – Calculation of commencement date – No formal claim until after 16th birthday – Contact with Centrelink not followed by claim within 14 days – No special circumstances whereby it was not reasonably practicable for the claim to be lodged earlier – Youth allowance payable from date of claim - Decision affirmed.
Social Security Act 1991 (Cth), s 23
Social Security (Administration) Act 1999 (Cth), ss 13, 16, 41, 42 and cl 3 of Pt 2 of Sch 2Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
29 April 2010 Mr R G Kenny, Senior Member APPLICATION
1. In 2009, Phillip Shayer had been in receipt of family tax benefit (FTB) in relation to his daughter, Natassja Shayer, who turned 16 years of age on 14 June 2009. On 10 September 2009, a claim for youth allowance for Ms Shayer was lodged with Centrelink. On 6 October 2009, her claim was accepted by Centrelink and youth allowance was commenced from 10 September 2009. On 21 October 2009, an authorised review officer affirmed that decision. The Social Security Appeals Tribunal (the SSAT) then affirmed the decision on 30 November 2009.
LEGISLATION AND ISSUES FOR DETERMINATION
2. On turning 16 years of age, a person may apply for youth allowance which is a social security benefit under the Social Security Act1991 (Cth)[1]. The procedure for making a claim for youth allowance is set out in the Social Security (Administration) Act 1999 (Cth) (the Administration Act). There must be a written claim[2] and the commencement date for payment is, usually, the date of claim[3]. It is common ground that, although Ms Shayer turned 16 years of age on 14 June 2009, a formal claim for youth allowance was not lodged until 10 September 2009 which, in the usual case, would be the date from which youth allowance would be paid.
[1] See s 23(1) of the Act.
[2] See s 16 of the Administration Act.
[3] See ss 41, 42 and clause 3 of Part 2 of Schedule 2 of the Administration Act.
3. Provision is made under s 13(1) of the Administration Act for an alternative means of determining the commencement date. It reads:
13(1) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
4. Also, provision is made in s 13(3A) of the Administration Act for that 14 day period to be extended. It reads:
13(3A) For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e) the Secretary is satisfied that, in the special circumstances of the case,
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
5. At issue in this matter is whether either of those provisions apply in Ms Shayer’s circumstances.
6. Mr Guthrie, for the respondent, conceded that Centrelink was contacted about Ms Shayer’s youth allowance on 3 August 2009 and 25 August 2009 and that this was acknowledged in writing. However, he submitted that this was not followed by a claim within 14 days and that, therefore, s 13 of the Administration Act has no application to enable a starting date earlier than the date of claim. In relation to s 13(3A) of the Administration Act, Mr Guthrie submitted that there were no special circumstances in this case which made it not reasonably practicable for Ms Shayer to lodge a claim earlier than she did. In particular, he submitted that, at all material times, Centrelink had provided full and accurate information to Mr Shayer about the payment of youth allowance. Accordingly, he submitted that youth allowance was payable to Ms Shayer from the date of her claim on 10 September 2010 and not from an earlier date.
7. Mr Shayer, on behalf of Ms Shayer, contended that incorrect information had been supplied to him by Centrelink about the payment of youth allowance and that this had led to the delay in making the formal claim. It was submitted that payment should be backdated to his daughter’s 16th birthday. He also expressed concern that, while he may have been at fault in not comprehending the need for a claim to be made, the consequences are passed onto Ms Shayer who was still only 15 years of age in the period before June 2009.
EVIDENCE
8. Mr Shayer had contact with Centrelink prior to Ms Shayer’s 16th birthday. On 14 April 2009, Centrelink sent him a Review of Family Assistance for a child turning 16 questionnaire along with an information booklet about youth allowance On 29 May 2009, he returned the questionnaire to Centrelink, indicating that Natassja did not intend making a claim for youth allowance. On 6 June 2009, Mr Shayer contacted Centrelink about his daughter turning 16 years of age and a file note recorded that his daughter would not be claiming youth allowance.
9. After Ms Shayer’s 16th birthday, Mr Shayer continued to receive FTB although at a reduced rate of $48.30 per fortnight because his daughter was now over 16 years of age. Previously, it had been in the amount of $196.84 per fortnight. On 3 August 2009, Mr Shayer contacted Centrelink about claiming youth allowance for his daughter and a Centrelink file note records that an offer to use Centrelink’s online service was declined because of privacy concerns and previous unsuccessful attempts. On the same day, Centrelink wrote to Ms Shayer confirming that contact and advising her that, in order for her to receive youth allowance from the earliest date possible, she had to return a completed and signed claim form on or before 17 August 2009. On 25 August 2009, Mr Shayer contacted Centrelink in relation to the claim for youth allowance and the formal claim was lodged on 10 September 2009.
10. Mr Shayer’s evidence was that, in his initial telephone contacts with Centrelink in May and June 2009, he was advised that there was only negligible difference in the amount of FTB that he was receiving for Ms Shayer and any youth allowance which would be payable. He agreed that he had advised in the questionnaire returned to Centrelink in May 2009 that Ms Shayer would not be claiming youth allowance. However, he said that this was because of his understanding that the youth allowance amount would not be significantly different from what he was already receiving. Only after he began to receive the reduced payments of his FTB did he feel that some error had occurred. It was then that he spoke to Centrelink in August 2009. Although conceding that this was not a formal claim, he believed that he had demonstrated an intention to make a claim and that this should have been acted upon by Centrelink so that people like his daughter would not be deprived of payments they would be entitled to.
11. In evidence, Mr Shayer also described Ms Shayer as being completely reliant on him for all advice regarding Centrelink matters. He said that she was too heavily involved in her school work to make decisions about these matters. He said that he, Natassja and her brother had moved to Queensland from Victoria in July 2004, that he had been divorced shortly before this and that he was experiencing financial hardship and had been diagnosed with bipolar disorder and depression at that time.
CONSIDERATION
12. The relevant provisions of the Administration Act relating to calculation of the start date for youth allowance are noted above[4]. Formal claim for youth allowance was lodged on 10 September 2009 and that marks the date of commencement of payments unless s 13(1) or 13(3A) of the Administration Act apply.
[4] See paragraph 2 and note 3.
13. Under s 13(1) of the Administration Act, youth allowance would be payable from 3 August 2009 provided a formal claim was lodged within 14 days of that date. This was advised by Centrelink in its letter of 3 August 2009 in which Centrelink acknowledged that it had been contacted in relation to the youth allowance claim. No formal claim was lodged within that 14 day time-frame and, therefore, s 13(1) of the Administration Act does not assist Ms Shayer. I have noted Mr Shayer’s contention that his contact in August should have been interpreted as an intention to apply for youth allowance. However, the Act is unambiguous in that it requires a formal claim and this was not lodged by or on behalf of Ms Shayer at that time.
14. That 14 day period may be extended where s 13(3A) of the Administration Act applies. Centrelink acknowledged by written notice that it had been contacted in relation to the making of a youth allowance claim. However, in addition, there must be special circumstances in this case whereby it was not reasonably practicable for the claim to be lodged earlier. The Act provides no guidance as to the meaning of the term “special circumstances”. In Groth v Secretary, Department of Social Security[5], Kieifel J observed that special circumstances:
would require something to distinguish ... [the] ... case from others, to take it out of the usual or ordinary case … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
[5] (1995) 40 ALD 541 at 545 in relation to special circumstances for waiver of a debt under the Act.
15. While s 13(3A) of the Administration Act requires special circumstances, it must also have been the case that, in those special circumstances, it was not reasonably practicable for the claim to be lodged earlier. Factors of potential relevance here are Ms Shayer’s reliance on Mr Shayer for information about making claims to Centrelink; Mr Shayer’s health and financial concerns; and Mr Shayer’s apparent belief that there was no significant difference in amount between youth allowance and the FTB he was receiving.
16. Youth allowance is payable from a child’s 16th birthday and it will commonly be the case that reliance is placed by the child on a meaningful adult to assist in lodging claim forms. This is not outside the usual case. Unfortunately, the experiencing of health and financial problems are also not outside the ordinary case and I am satisfied that none of those factors point to an unfair, unjust or unintended outcome of requiring timely lodgement of a claim after 3 August 2009 when notified by Centrelink of the need to claim within 14 days. In any event, those matters would not make it impracticable for Ms Shayer or her father, on her behalf, from lodging a claim form before 10 September 2009. .
17. As I understand Mr Shayer’s evidence, the main reason for late lodgement was his belief that only an insignificant difference would result from receipt of youth allowance rather than FBT. There is no Centrelink record which confirms that Mr Shayer was advised about a small difference between the FTB and youth allowance. Mr Shayer was unsure of the precise detail he was given. He may have been advised incorrectly or, indeed, the comparison may have been between youth allowance and FTB as it was before Ms Shayer turned 16 years of age. What is clear is that the Information Booklet sent to and received by Mr Shayer in May 2009 provides information on benefits payable to families where a child has reached 16 years of age. In particular, it advised that the amount of FTB payable for each 16 -17 year old is “up to $48.30” and that youth allowance is payable from age 16 years. It also set out in table format the amounts of youth allowance payable for specified income levels. That information makes it clear that there is a substantial difference between youth allowance and FTB after a child reaches 16 years of age. It is not disputed that Mr Shayer received that Information Booklet and I am satisfied that he should have been aware of the difference in the two payments.
18. In any event, s 13(3A) of the Administration Act operates for the period after 3 August 2009 and extends the 14 day period advised by Centrelink in its letter of that date. By then, Mr Shayer had become aware of his reduced payment and any misunderstanding about the level of payment could make no contribution to delay after 3 August 2009. I am satisfied that s 13(3A) of the Administration Act provides no assistance to Ms Shayer.
19. As neither ss 13(1) or 13(3A) of the Administration Act is applicable in this matter, the commencement date for Natassja’s youth allowance was 10 September 2009.
DECISION
20. The Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: ......................[Sgd]................................................
Kate Slack, Research AssociateDate/s of Hearing 20 April 2010
Date of Decision 29 April 2010
Ms Shayer was represented by her father, Phillip Shayer
Solicitor for the Respondent Joe Guthrie, departmental advocate
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