Thomas and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1090

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3842

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SHELLEY THOMAS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date5 December 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

SOCIAL SECURITY – parenting payment partnered – making a claim – duty of Centrelink to advise regarding possible claims – backdating the date of claim – deemed date of claim – start day for payments

Social Security (Administration) Act 1999 ss 11, 13, 16, 41, 42, Sched 2

REASONS FOR DECISION

5 December 2008 Mr Egon Fice, Member      

1.      Ms Shelley Thomas had a telephone conversation on 6 March 2008 with a Centrelink Customer Service Officer regarding a claim for parenting payment partnered (PPP).  Centrelink is the service delivery agency for the Department of Education, Employment and Workplace Relations.  Ms Thomas then lodged an application with Centrelink for PPP on 19 March 2008.  Centrelink granted Ms Thomas the PPP commencing 6 March 2008.  However, she sought a review of that decision because she believed that she was entitled to PPP from July 2007.  On internal review, an Authorised Review Officer (ARO) affirmed the decision to grant Ms Thomas the PPP commencing 6 March 2008.  Ms Thomas then sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decision of the ARO.  Ms Thomas now seeks review of the SSAT decision by this Tribunal, claiming that she was entitled to receive the PPP from at least July 2007, if not earlier.

2.      The only issue which I have to determine is the correct start date for the payment of Ms Thomas’ PPP. 

RELEVANT BACKGROUND

3.      Ms Thomas resides at Jeetho, which is in south-east Gippsland.  The nearest Centrelink office is about one hour’s drive away in Cranbourne. 

4.      I have been provided with Centrelink file notes recording Ms Thomas’ contact with Centrelink between April 2006 and March 2008.  Although Ms Thomas submitted that not all of her contacts with Centrelink were recorded, in particular the conversations she had with officers over the counter at Cranbourne, whether that was the case does not impact on my decision for reasons which are set out below.  The following background was obtained primarily from Centrelink file notes.

5.      In April 2006, after contacting Centrelink by telephone about family tax benefit (FTB), Ms Thomas was sent a claim form for child care benefit.  On 23 May 2006 Ms Thomas notified Centrelink by telephone that her taxable income for the 2006/2007 year would be $50,000.  On 15 June 2006 Ms Thomas contacted Centrelink by telephone and was offered the opportunity to update her advice about her income for the financial year.  The record of that discussion indicates she declined to change her estimate.  Centrelink’s records show that she also was offered the opportunity to change that income estimate on 29 June 2006 but again declined to do so.

6.      On 30 August 2006 Ms Thomas contacted Centrelink by telephone and updated her advice about her taxable income for the 2006/2007 year to $40,000.  On that date Ms Thomas was also sent two claim forms regarding child care benefit for registered care and a claim form for a healthcare card. 

7.      Following the birth of her second child, Ms Thomas contacted Centrelink by telephone on 23 November 2006.  She enquired about a further claim for FTB, maternity payment and maternity immunisation allowance.  She confirmed her income for the 2006/2007 financial year at $40,000.

8.      Ms Thomas contacted Centrelink again by telephone on 23 January 2007. The Centrelink officer’s file note indicates that in addition to FTB, they also discussed parenting payment single (PPS).  There is no indication in that file note, nor did Ms Thomas claim, that she was applying for PPS on that date.

9.      Centrelink documents disclose that Ms Thomas contacted Centrelink on 13 April 2007 regarding a claim for PPS.  Ms Thomas advised Centrelink that her marital status had changed to separated.  The records also disclose that a claim form was issued together with the module requiring her separation details.  However, shortly after, on 19 April 2007, Ms Thomas again contacted Centrelink and advised that she had reconciled with her partner.  She requested that her claim for PPS be cancelled as she no longer required assistance. 

10.     On 13 July 2007 Ms Thomas provided Centrelink with details of her income for the 2007/2008 income year.  She estimated that to be $40,000.  These income details were provided for the purposes of FTB.

11.     In September 2007, her sister’s children, who had been in her care for some time, were released to the care of her sister and Ms Thomas notified Centrelink of that change. 

12.     On 6 March 2008 Ms Thomas contacted Centrelink by telephone indicating that she wished to make a claim for PPP.  She provided details for the purposes of the claim over the telephone.

13.     Ms Thomas completed and signed a PPP application form on 18 March 2008.  That application was received by Centrelink on 19 March 2008.  After Centrelink conducted an assessment of Ms Thomas’ assets and income, in particular the income of her partner which was earned through a corporate entity, Centrelink wrote to Ms Thomas on 4 April 2008 informing her that her PPP claim had been accepted and that the payments would commence from 6 March 2008, being the first date Ms Thomas contacted Centrelink by telephone requesting PPP.

14.     Ms Thomas disagreed with Centrelink’s decision to commence the parenting payment from 6 March 2008 and sought an internal review.  Ms Thomas was of the view that as she was eligible to receive parenting payment from July 2007 and that her payments should be backdated to a date in July 2007.  Ms Thomas claimed that despite the fact that she had been in contact with Centrelink on numerous occasions since July 2007 no Centrelink officer advised her that she should make a parenting payment claim.  The ARO rejected Ms Thomas’ claim on the basis that she did not make any claim for parenting payment between July 2007 and 6 March 2008.

15.     Ms Thomas sought a review of the ARO’s decision by the SSAT.  The SSAT decided on 23 July 2008 that the decision of the ARO should be set aside and that the start date for Ms Thomas’ PPP should be 16 January 2008.  However, this decision was clearly contrary to the reasons for the decision given by the SSAT on the same date.  In its reasons, the SSAT said, at paragraph 24:

There are no other provisions in the Administration Act that allows for backdating Mrs Thomas’ start day to a date earlier than 6 March 2008. As a result, the decision under review must be affirmed.

16.     On 12 August 2008 the SSAT notified Ms Thomas that the decision made on 23 July 2008 was incorrect and that the decision should have been: Affirm the decision under review.  That of course accords with the reasons given by the SSAT for its decision.

THE LEGISLATIVE SCHEME

17.     The general rule regarding the provision of benefits under the Social Security Act1991 (the Act) is set out in the Social Security (Administration) Act 1999 (the Administration Act). Section 11 provides:

(1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a)a social security payment; or

(b)a concession card;

must make a claim for the payment or card in accordance with this Division.

…

The exception set out in s 11(2) does not apply to Ms Thomas as it deals only with applications for a concession card. The exception set out in Subdivision B provides, amongst other things, that a claim may be deemed to have been made at an earlier date in certain circumstances. In particular, s 13 of the Administration Act provides that:

(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.

(2)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, other than crisis payment or special employment advance; 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 payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(3)For the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

(b)the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and

(c)the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and

(d)the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)the Secretary is satisfied that:

(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

(ii)throughout that period, the other person suffered from a medical condition; and

(iii)the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;

the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(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, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(4)A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.

(5)This section has effect subject to section 18.

18. The practical effect of s 13 of the Administration Act is that a claim is deemed to have been made on the day on which Centrelink was first contacted in respect of that claim, provided that the prerequisites set out in the relevant subsection of s 13 have been met. Common to each subsection ((1) – (3A)) are the requirements that:

(a)there be a contact by the person or on behalf of the person with Centrelink in respect of a claim for a social security payment;

(b)the person is, on the date of contact, qualified for the social security payment sought; and

(c)Centrelink gives the person a written notice acknowledging that it has been contacted in relation to the making of the claim.

19. A person makes a claim for a social security payment by lodging a written claim for the payment or by making a claim in a manner approved by the Secretary to the Department of Education, Employment and Workplace Relations (the Secretary) (s 16(1) and (7) of the Administration Act).

20. If Centrelink is satisfied that a claimant is qualified for the social security payment claimed and that the payment is payable to the claimant, the start date for that payment is set out in Schedule 2 of the Administration Act (see s 41 and s 42 of the Administration Act). Clause 3 of Schedule 2 of the Administration Act provides:

3.(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.

21. The practical result of the legislation is that, provided Ms Thomas satisfies the qualifications set out in the relevant subsections of s 13 of the Administration Act, the start day for her PPP is the day on which she first contacted Centrelink regarding the parenting payment claim.

FIRST CONTACT WITH CENTRELINK REGARDING CLAIM FOR PARENTING PAYMENT

22.     Ms Thomas said she had numerous contacts with Centrelink between July 2007 and March 2008.  Her evidence is clearly supported by the file notes made by Centrelink officers on receiving her telephone calls.  According to Ms Thomas, she recalled that a couple of times she raised the subject of the single mother’s pension in her discussion with the Centrelink Officer.  She said that she did not expressly refer to the parenting payment, either single or partnered, because she was unaware of the terminology used by Centrelink in respect of that social security payment.  This was despite the fact that Centrelink file notes indicate that Ms Thomas had, on 13 April 2007, enquired about claiming PPS. 

23.     Irrespective of how that social security payment was described by Ms Thomas, she agreed that she did not ask for or make a claim for the parenting payment after 13 April 2007 until she again contacted Centrelink on 6 March 2008.  An examination of the file notes prepared by Centrelink officers discloses that parenting payment (both single and partnered) was discussed on 23 January 2007 following which, on 13 April 2007, she notified Centrelink that she wished to claim PPS.  However, shortly thereafter, on 19 April 2007, Ms Thomas phoned Centrelink to say that she had reconciled with her partner and no longer wished to pursue the PPS claim.  The next occasion recording an enquiry regarding the parenting payment was on 16 January 2008. 

24.     On the first occasion parenting payment was discussed, although it appears to be prior to the time at which Ms Thomas was qualified for parenting payment because of her stated income level, the file note discloses that Ms Thomas’ query was to do with the FTB calculation and the effect of change of income on her payments.  The file note states:

New rates discussed and caller advised of potential impact on other payments. (eg. CCB, PPP, PPS etc)

Also disussed [sic] possible PPS & FTB pmts if single.

There is no suggestion in that file note that Ms Thomas was making a claim for the parenting payment.  In any event, on 19 April 2007 she made it clear she was not claiming PPS.  On the second occasion, the file note states: Update for parenting payment.  However, the file note also states: Customer or partner receive FTB – FTB was last updated on 13 JUL 2007.  The file note indicates that Ms Thomas called regarding an estimate of rates of FTB payments.  Of course that information is inconsistent with the statement regarding the parenting payment.  Mr T Noonan, a Centrelink principal legal services officer, who appeared on behalf of the Secretary, submitted that the file note contained an error and that the query was in fact in respect of FTB and not parenting payment.  In my opinion, that submission is clearly correct, because Ms Thomas was not receiving the parenting payment at that time and therefore no update would be necessary.  She was receiving FTB and the remainder of the file note deals solely with the payment of that benefit. 

25.     Although Ms Thomas expressed the view that the Centrelink file notes were not accurate, given that they were contemporaneously prepared by officers who had no obvious reason not to make an accurate recording of their conversations, I am satisfied that those file notes are reasonably accurate and can be relied upon at least as far as the essential subject matter discussed is concerned.

26.     It follows that Ms Thomas’ first contact with Centrelink regarding a claim for parenting payment (other than the 13 April 2007 request which was withdrawn) occurred on 6 March 2008.  Although Ms Thomas insisted that she made enquiries of Centrelink regarding what payments she was entitled to as she was suffering financial hardship in 2007, and she claimed that she had discussed the single mother’s pension at times with Centrelink officers, even if that was in fact the case, it does not, in my opinion, establish that Ms Thomas contacted Centrelink in relation to a claim for parenting payment.  That finding is supported by the fact that Centrelink did not at any time prior to 6 March 2008 provide Ms Thomas with a written notice acknowledging that it had been contacted by her in relation to making a claim for a parenting payment.

27. The result is that Ms Thomas cannot take advantage of the deemed claim provisions set out in s 13 of the Administration Act prior to 6 March 2008. Each of the subsections (1) – (3A) contain the essential prerequisites for their application – particularly that Centrelink is contacted in relation to a claim for a social security payment and that Centrelink gives the person written notice acknowledging that contact in relation to the making of the claim. This did not occur until after the contact of 6 March 2008.

CORRECT START DATE FOR PARENTING PAYMENT

28. Schedule 2 of the Administration Act makes it clear that the start date for a social security payment is the date of the claim. As is set out in s 16(1) of the Administration Act, a person makes a claim for a social security payment by lodging a written claim for the payment. Therefore, the claim is made when a written claim is lodged with Centrelink or, alternatively, if an applicant is entitled to rely on s 13 of the Administration Act, the date on which the claim is made may be backdated in accordance with that section. However, as I have said above, Ms Thomas cannot take advantage of s 13 of the Administration Act prior to 6 March 2008. That is the date on which she contacted Centrelink in relation to a claim for parenting payment. Following that contact, Centrelink sent Ms Thomas an acknowledgement that it had been contacted in relation to making a claim for parenting payment. Ms Thomas then lodged a claim on 19 March 2008, which is within 14 days after Centrelink was contacted. Therefore, Ms Thomas can take advantage of s 13(1) of the Administration Act for the purposes of determining the date on which her claim was made as she qualified for the claim as at that date. In fact, under that section, she was taken to have made the claim on 6 March 2008. In my opinion, 6 March 2008 is the correct start date for payments to Ms Thomas in respect of PPP.

CENTRELINK’S DUTY AND UNFAIRNESS

29.     Ms Thomas provided written submissions in support of her claim that she was entitled to a start date prior to 6 March 2008 for parenting payment.  In essence, Ms Thomas submitted that Centrelink owed her a duty of care and, accordingly, Centrelink should have advised her that she was entitled to claim the parenting payment at a much earlier date.  The problem with this submission is the legislation dealing with social security benefits does not place any onus on Centrelink to provide advice to customers about which claims may be available to them.  While I have no doubt that Centrelink officers attempt to assist persons enquiring about social security payments as best they can, it should be appreciated that counter officers and call centre staff cannot be expected to provide advice regarding the possibility that the caller may be eligible for a particular form of social security payment.  Each person making an enquiry will have different circumstances including different income and assets.  It will often be impractical for Centrelink officers to make suggestions about the nature of claims a person might have.  Centrelink does publish a Guide to Australian Government Payments and that guide is available to the public.  Ms Thomas did not obtain a copy of that guide.  Had she done so, she would undoubtedly have been in a better position to assess for herself whether she should make a claim.  

30.     Where Centrelink falls below the standard required in administering a social security claim, once it has been made, an applicant can seek compensation under the Compensation for Detriment caused by Defective Administration Scheme (CDDA). Ms Thomas did in fact make a claim under the CDDA but that claim was rejected. This Tribunal has no jurisdiction to embark upon an enquiry about whether that decision was correct. Nor has this Tribunal any jurisdiction to enquire about Ms Thomas’ claim that Centrelink did not provide the requisite standard of care in dealing with her. In fact, the Act and, in particular the Administration Act, make it absolutely clear that members of the public are required to inform themselves of the availability of social security payments and to lodge a claim where they believe they may be entitled to a particular form of payment. Therefore, Ms Thomas’ submission about duty of care does not assist her.

31.     Ms Thomas was also critical of the decision made by the SSAT.  In a written submission, she said:

…

Previous tribunal said several things to me in conference that were totally contradictory in their paperwork.  So without any disrespect intended it wasn’t just a typo error.  I was promised something by this tribunal and they did not deliver…

32. As I understood Ms Thomas, this is a reference to the fact that in its decision made on 23 July 2008, the SSAT said that the ARO’s decision would be set aside and instead, the start date for payments of Ms Thomas’ parenting payments would be 16 January 2008. That formal decision of course was attached to the reasons for decision given by the SSAT. It is quite plain, as I have set out above, that the SSAT said in its reasons for decision that there are no provisions in the Administration Act that would allow the Tribunal to backdate Ms Thomas’ start date to a date earlier than 6 March 2008. It then said that the decision under review must be affirmed.  By that, the SSAT meant that the decision of the ARO was correct.  However, the formal decision attached to the reasons was quite clearly contrary to its reasons.  That, plainly, was an error.  Realising its error, the SSAT corrected the formal decision to reflect the findings it made in accordance with its reasons for decision.  This was entirely appropriate and should not have been a surprise or disappointment to Ms Thomas had she read the reasons for decision. 

CONCLUSION

33.     The role of this Tribunal is to come to the correct decision in accordance with the law.  It has no jurisdiction to exercise any discretion regarding the start date for Ms Thomas’ parenting payments.  For the reasons I have explained above, the law requires me to find that the correct start date for payments of Ms Thomas’ parenting payment is 6 March 2008.  That means that the decision of the SSAT made on 23 July 2008 was correct and must be affirmed.

I certify that the thirty‑three [33] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

Signed:          Olympia Sarrinikolaou

Clerk

Date of Hearing  3 November 2008
Date of Decision  5 December 2008
Advocate for the Applicant          Self-represented
Advocate for the Respondent       Mr Tim Noonan, Centrelink Legal Services Branch