Simovic and Secretary, Department of Family and Community Services

[2004] AATA 537

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 537

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1978   

GENERAL ADMINISTRATIVE DIVISION		)
Re		Radoljub Simovic

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date21 May 2004

PlaceSydney

Decision

The Administrative Appeals Tribunal affirms the decision under review

.

[sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – Application for backdating of age pension to date of first contact with Australian Government – first contact occurred at Australian Embassy in Germany – definition of ‘contact’ discussed – Applicant’s circumstances do not apply – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 sections 13, Schedule 2 Part 2

CASE LAW

Redpath and Department of Family and Community Services [2000] AATA 689
Larubina and Department of Family and Community Services [2001] AATA 813

REASONS FOR DECISION

21 May 2004 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals (‘the Tribunal’) was the decision of the Respondent, the Secretary, Department of Family and Community Services (‘Centrelink’) dated 6 November 2002 (T28/70) as affirmed by the Authorised Review Officer on 5 March 2003 (T37/82) and the Social Security Appeals Tribunal (‘the SSAT’) on 3 December 2003  (T2/3), not to backdate payment of age pension to Mr Simovic’s 65^th birthday.

BACKGROUND

2. On 19/3/01 Mr Simovic turned 65 years of age but it was not until 19/8/02 that he lodged a claim at the Albury office of Centrelink for age pension.  Age pension was paid from this date.

ISSUE BEFORE THE TRIBUNAL

3. Whether Mr Simovic’s age pension can be backdated to 19 March 2001, that is to his 65^th birthday.

APPEARANCES

4. A hearing was held before the Tribunal on 11 May 2004 at which Mr Simovic appeared without representation, but assisted extensively by his wife, Rada, and aided by an interpreter in the Serbian language, Mr Dragan Cvetkovic.  Centrelink was represented by Luke Carter, an advocate from the Centrelink Service Recovery Team.

LEGISLATION

5. The relevant legislation in this matter is the Social Security (Administration) Act 1999, in particular section 13(1) and subclause 3(1) of Part 2 to Schedule 2. Those sections, so far as is relevant, provide as follows:

“Deemed claim—person contacting Department about a claim for a social security payment

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.

…

Part 2—General rules

3 Start day—general rule

(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.”

6. As explained in Divisions 1 and 2 of Part 2 to Schedule 2 of the Act, the start day can be backdated in certain circumstances. These refer to claims made:
(i) after a partner’s claim,
(ii) by a transferee to a benefit or pension,
(iii) after childbirth,
(iv) by a person who becomes incapacitated for work,
(v) after the death of a partner,

(vi) following a claim for disaster relief payment, or

(vii) when qualifying interests are involved.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

7. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

8. 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.

9. Mr and Mrs Simovic gave evidence and were cross-examined on behalf of Centrelink.  I also asked them questions.

10. Mrs Simovic said that she and her husband had come to Australia in 1966, and 1960 respectively.  They became Australian citizens.  In 1971 they returned overseas, living in Serbia and Germany.

11. It had been their intention to return to Australia in February 2001, shortly before Mr Simovic’s 65^th birthday, so that he could claim the age pension.  Mrs Simovic had contacted a travel agent about 3-4 weeks in advance of their proposed travel and she was to organise tickets on standby rates (called in Germany ‘last time tickets’).  Their bags were packed and they expected only to have a few days notice of their actual departure date.

12. However on 27 or 28 February, before the agent got back to them, Mr Simovic was engaged in an altercation with a dog.  As a result he had several broken ribs and his shoulder and upper arm were severely bruised.  The doctor told Mr Simovic not to travel as there was a risk of thrombosis.  The injuries healed slowly.  Even until shortly before the date of their ultimate return to Australia in August the following year, the doctor continued to advise against long distance air travel.  As they ‘needed the pension’ they decided to come nonetheless, some 16 or 17 months after the accident.  On arrival they travelled to Wodonga where they stayed with a friend.  Within a couple of days, on 19 August 2002, Mr and Mrs Simovic attended the Albury office of Centrelink where Mr Simovic applied for the age pension.  Pension was in fact paid from that date.

13. According to the rule contained in subsection 13(1) and subclause 3(1) of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999, age pension is paid from the day a person lodges a claim or, provided the claim is lodged within 14 days, from the day on which a person contacts Centrelink in regards to making a claim.  In this case pension was paid from the date of the application, which was also the date of ‘contact’.

14. I turned to consider if it might be said that there was in fact some earlier contact.

15. Mrs Simovic told me that when her husband was unable to make the journey to Australia they travelled from Heidelberg, where they were living, to Frankfurt, to seek assistance from the Embassy.  This occurred about 2-4 weeks after the accident.  She explained that they were coming to Australia to claim the age pension for Mr Simovic, but were now prevented from doing so because he was unable to travel.  She said that they were told just to wait until Mr Simovic was better, and on their return to Australia just ‘explain everything’ to Centrelink and ‘everything would be OK’.  They relied upon that advice and it did not occur to her to seek any written confirmation of what they had been told. 

16. Mr Carter informed me that had Mrs Simovic travelled to Australia at that time, with appropriate authority from her husband, she would have been able to claim the pension on his behalf.

17. I reviewed the cases in order to consider what might be ‘contact’.  In Redpath and Depatment of Family and Community Services [2000] AATA 689, the applicant contacted a Centrelink Call Centre to inquire about his eligibility for newstart allowance. He was advised, incorrectly, that he would not be eligible for 12 weeks and no record was kept by Centrelink of the conversation. The applicant applied for newstart allowance 12 weeks later and sought to have payment backdated to the date of the telephone conversation under former s 615A of the Social Security Act 1991 - an equivalent provision to s 13(1). The Tribunal held that no “claim” had been made in this case as a claim must assert a right to something and the substance of the demand must be brought home to the person receiving the claim. Additionally, the making of a claim must “identify to the person against whom the claim is intended the identity of the person claiming”. (at [21])  In that case there was no claim, however the Tribunal suggested that the applicant may have rights against the Commonwealth for negligent advice.

18. In Larubina and Department of Family and Community Services [2001] AATA 813 a claim was backdated to the date on which the applicant advised Centrelink that his workers compensation payments had ceased. He lodged a claim for age pension 4 days later. However, a meeting with an FIS Officer two months earlier could not characterised as an informal claim for pension – it was a discussion about arrangements for the applicant's financial investments and his superannuation.

19. I considered the available evidence about the meeting at the Embassy in Frankfurt in this context and came to the view that it did not amount to ‘contacting Centrelink’.  Indeed the conversation apparently specifically advised Mr and Mrs Simovic to ‘contact Centrelink’, albeit on their return to Australia.

20. As explained in Divisions 1 and 2 of Part 2 to Schedule 2 of the Act, noted above, the start day can be backdated in very limited circumstances and none of those circumstances applies to Mr Simovic.

21. Mrs Simovic said that they accepted the rules, but also thought there should be rules for people who are unable to travel to Australia in order to make their claim.

22. Unfortunately this is a matter in which I have no discretion.  I therefore find that age pension was correctly paid to Mr Simovic from 19 August 2002, the day on which he both inquired about the pension and lodged with Centrelink a claim for that pension.

23. I observe however Mr Simovic may have a complaint that he was owed a duty of care by the Commonwealth, through its Embassy staff, to correctly advise him of the procedure in making a claim for age pension.  I am not required to make a finding in this regard.  Pursuit of that issue would need to occur elsewhere.  I am also not in a position to comment whether, in fact, Mr Simovic met all necessary criteria at some earlier time and whether, had he applied earlier, he would have been granted age pension at that time.

DECISION

24. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: Guy Moloney           .....................................................................................

Associate

Date of Hearing  11 May 2004
Date of Decision  21 May 2004
Representative for the Applicant               Self
Representative for the Respondent          Luke Carter