Smurthwaite and Secretary, Department of Social Services (Social security)

[2024] ARTA 320

Smurthwaite and Secretary, Department of Social Services (Social security) [2024] ARTA 320 (18 December 2024)

Applicant/s:  Mr Smurthwaite

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink    

Tribunal Number:   2024/H190650 

Tribunal:  Member K Hamilton

Place:Brisbane

Date:18 December 2024

Decision:The Tribunal sets aside the decision under review and remits the matter to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mr Smurthwaite submitted a claim for age pension on 9 August 2023 and that Centrelink is to determine the claim submitted on that date and pay any arrears of age pension owing to Mr Smurthwaite.

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – claim submitted by or on behalf of a spouse – valid claim at any earlier date – no limitation on payment of arrears – decision under review set aside and remitted with directions

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

1. This matter concerns a decision made by Services Australia – Centrelink (Centrelink) to grant Mr Smurthwaite’s claim for age pension from 8 January 2024 and not from an earlier date.

2. On 9 August 2023, Mr Smurthwaite’s wife, Mrs Smurthwaite, completed and submitted a “staff assisted” claim for age pension. Mrs Smurthwaite’s claim was processed on 7 January 2024. Mrs Smurthwaite was advised by Centrelink on that date that no claim had been submitted by or on behalf of Mr Smurthwaite.

3. Mr Smurthwaite subsequently lodged a claim for age pension on 8 January 2024, which was granted from that date.

4. Mr Smurthwaite sought review by a Centrelink authorised review officer (ARO) seeking to be paid age pension from an earlier date. 

5. On 12 June 2024, the ARO affirmed the decision. 

6. Mr Smurthwaite then applied to the Administrative Appeals Tribunal (the AAT) on 29 August 2024 for independent review.

7. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

8. The matter was heard on 28 November 2024.  Mr Smurthwaite participated in the hearing by telephone accompanied by Mrs Smurthwaite.  Both Mr and Mrs Smurthwaite gave evidence under affirmation. 

9. The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–95 and submissions provided by Mr Smurthwaite numbered as pages A1–A6.  Following the hearing, the Tribunal sought further documents from Centrelink relating to Mrs Smurthwaite’s claim for age pension.  Centrelink was unable to locate the requested documents but provided additional potentially relevant material, which was numbered by the Tribunal as pages C1–C26.

ISSUES

1. The statutory provisions relevant to this review are contained in the Social Security (Administration) Act 1999 (the Administration Act).

2. The issue which arises in this case is whether Mr Smurthwaite can be paid age pension from a date earlier than 8 January 2024. This turns on whether or not Mr Smurthwaite lodged a valid claim for age pension at any earlier date.

CONSIDERATION

1. A person who wants to be granted a social security payment must lodge a written claim or make a claim in the manner approved by the Secretary: sections 11 and 16 of the Administration Act.

2. In the ordinary course of events, if a person is qualified and a social security payment is payable at the time of their claim, the start day for their payment will be the day on which their claim is made: clause 3 of Schedule 2 to the Administration Act.

3. The Secretary is obliged to determine a claim by either granting or rejecting the claim: section 36 of the Administration Act.

4. If a determination is not made within 13 weeks of the day on which the claim is made, the Secretary is taken to have made a determination rejecting the claim: section 39 of the Administration Act.

5. Where a person requests review within 13 weeks of being given notice of a decision, or where no effective notice of a decision has been given, any favourable decision on review has effect from the date on which the original decision took effect: subsections 109(1) and (3) of the Administration Act.

6. Mr Smurthwaite and Mrs Smurthwaite’s evidence to the Tribunal can be summarised as follows:

   ·Mr Smurthwaite was working up until his retirement in May 2023. Mr and Mrs Smurthwaite then made enquiries of Centrelink regarding claiming age pension and were directed to the online claim process.

   ·Mrs Smurthwaite made several frustrating attempts to complete the online claim process. She was unable to do so. Mr and Mrs Smurthwaite then made an appointment with their local Centrelink office at [City 1] to obtain assistance to lodge their claims for age pension. 

   ·Mr and Mrs Smurthwaite both attended this appointment at Centrelink. Mrs Smurthwaite was asked by the officer whether she was also claiming on behalf of her husband, to which she replied words to the effect of “no, I am claiming for myself and he is here with me and is claiming for himself”.

   ·Mr and Mrs Smurthwaite were each asked a series of questions, first Mrs Smurthwaite and then Mr Smurthwaite.  These questions asked were identical for both of them.  They then each signed several forms, including forms detailing their income and assets and real estate owned by them (Mod IA and Mod R).  Mr and Mrs Smurthwaite said that they each signed separate forms, but the forms they were asked to sign were otherwise identical.

   ·The officer then bundled up the forms they had signed along with documents confirming their bank details and superannuation details, which Mr and Mrs Smurthwaite had provided during the appointment, and said these would all be sent off to Hobart that night.  Mr and Mrs Smurthwaite were not provided with copies of the forms they had signed.

7. Centrelink’s records show that Mrs Smurthwaite completed and lodged a “staff assisted” online claim on 9 August 2023.  I find on the basis of Mr and Mrs Smurthwaite’s oral evidence that this claim was lodged by Mrs Smurthwaite during the in person appointment with Centrelink that she and Mr Smurthwaite both attended.

8. Centrelink was asked to provide documents signed by either Mr Smurthwaite or Mrs Smurthwaite that were submitted with Mrs Smurthwaite’s claim for age pension lodged on 9 August 2023.  Centrelink were unable to locate any such documents.

9. The Tribunal found Mr and Mrs Smurthwaite to be credible witnesses.  Their recollections of the events surrounding their claiming age pension were consistent and I accept their evidence as truthful.

10. I am satisfied on the balance of probabilities that Mr and Mrs Smurthwaite both completed and submitted claims for age pension and associated declarations on 9 August 2023. I find it likely that the Centrelink customer service officer failed to properly record Mr Smurthwaite’s claim or misplaced his claim and the associated declarations completed by Mr and Mrs Smurthwaite. I accept Mr and Mrs Smurthwaite’s evidence that they had clearly indicated to the officer that they were both there to claim age pension and that they completed and signed identical forms and questionnaires. The fact that Centrelink were unable to locate and produce any documents signed by Mrs Smurthwaite, which would ordinarily have been required to have been submitted in order for Mrs Smurthwaite’s claim for age pension to be successfully processed, suggests that it is more likely than not that Mr Smurthwaite’s claim was misplaced by the Centrelink officer along with such documents.

11. I am satisfied that Mr Smurthwaite lodged a valid claim for age pension on 9 August 2023.  That claim was not determined by Centrelink and is deemed to have been rejected after 13 weeks. As no notice of that decision was provided to Mr Smurthwaite, there is no limitation on payment of arrears of age pension to Mr Smurthwaite.

DECISION

The decision under review is set aside and the matter is sent back to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mr Smurthwaite submitted a claim for age pension on 9 August 2023 and that Centrelink is to determine the claim submitted on that date and pay any arrears of age pension owing to Mr Smurthwaite.

Date(s) of hearing:
Representative for the Applicant: Thursday, 28 November 2024
Self