Tickner and Secretary, Attorney-General’s Department - [2022] AATA 837

Tickner and Secretary, Attorney-General’s Department [2022] AATA 837 (26 April 2022)
Division:GENERAL DIVISON
File Number:2021/3106
Re:Rachael Tickner
APPLICANT

Secretary, Attorney-General’s DepartmentAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:26 April 2022
Place:Brisbane

The Tribunal affirms the decision under review.
...........[SGD]................
Member D Mitchell
CATCHWORDS
FAIR ENTITLEMENTS GUARANTEE – Claim for advance under Fair Entitlements Guarantee Act 2012 (Cth) – meaning of effective claim – whether Applicant filed a claim within the relevant time period – no discretion to extend the time period – decision under review affirmed
LEGISLATION
Corporations Act 2001 (Cth)
Fair Entitlements Guarantee Act 2012 (Cth)
CASES
Brown and Secretary, Department of Employment [2017] AATA 96
Browne and Secretary, Department of Employment [2015] AATA 978
Paraponiaris and Secretary, Department of Employment [2015] AATA 895
SECONDARY MATERIAL
Explanatory Memorandum to the Fair Entitlements Guarantee Bill 2012
REASONS FOR DECISION
Member D Mitchell
26 April 2022
INTRODUCTION

Ms Rachael Tickner (the Applicant) is seeking review of an internal review decision made by the Respondent on 11 May 2021 in relation to her claim for assistance under the

Fair
Entitlements Guarantee Act 2012 (Cth) (FEG Act).[1]
[1] Exhibit 1, T Documents, T32, pages 327-336, Internal Review Decision.
The reviewable decision affirmed the original decision made on 9 April 2021[2] that determined the Applicant was not eligible to receive a Fair Entitlements Guarantee (FEG) advance on the basis that she had not submitted an effective FEG claim within 12 months of the termination of her employment or an insolvency event happening to her employer.[3]
[2] Exhibit 1, T Documents, T22, pages 227-234, Initial Decision.
[3] Exhibit 1, T Documents, Exhibit 1, T Documents, T22, pages 227-234, Initial Decision.
BACKGROUND
The Applicant was employed by Butterfly Silver Retail Pty Ltd (the Company) on

18 July 2016 in the role of Integrated Marketing and Communications Manager.[4]
[4] Exhibit 1, T Documents, T16, page 185, Statement of Employment of the Applicant.
On 12 March 2018, the Company appointed Peter Anthony Lucas of PA Lucas & Co Pty Ltd as the Administrator of the Company.[5]
[5] Exhibit 1, T Documents, T4, pages 13-50, Report to Creditor sand Suppliers.
On 10 April 2018, the Company closed its stores.[6]
[6] Exhibit 1, T Documents, T5, pages 51-52, Circular to the Company’s employees from the Administrator.
On 26 April 2018, the Administrator was appointed as Liquidator of the Company.[7] By way of a letter dated 27 April 2018, the Liquidator wrote to the employees of the Company to advise of his appointment and to inform them of a potential entitlement to FEG assistance.[8]
[7] Exhibit 1, T Documents, T7, pages 131-136, Letter from the Company’s Liquidator to the “Employee as Addressed”.
[8] Exhibit 1, T Documents, T7, page 131, Letter from the Company’s Liquidator to the “Employee as Addressed”.
On 21 May 2018, the Applicant registered a user account in the FEG online portal and commenced a claim.[9]
[9] Exhibit 1, T Documents, T14, page 166, Email chain between the Applicant and the FEG team and T22, page 228, Initial Decision.
The Applicant’s employment with the Company was terminated on 22 May 2018.[10]
[10] Exhibit 1, T Documents, T19, page 200, FEG Initial Claim Form of the Applicant.
In May 2020, the Applicant started to take steps to follow up on her claim for FEG assistance. On 4 May 2020, the Applicant wrote to Senator, the Hon. Michaelia Cash seeking the following assistance:[11]
I was wondering if you can please help me with something. I lost one of my past employment roles whilst on maternity leave in 2018 and at the time, I sent through my lost entitlements to the liquidators and registered for FEG on May 21, 2018, but didn’t lodge the claim officially within the 12 month period. This was due to a few factors, we had a new baby who was almost 6 months old at the time, or just over from memory and I thought I was only entitled to a small amount of annual leave owing whilst in maternity leave but I have since found out I was entitled to a reduced payment for the years of service worked and also the leave in lieu which I believe is up to 5 weeks and I believe my contract was four weeks or 5 notice that I had to give if I would leave.
Is there any exemptions to the 12 month claim period if I registered for FEG during that time at all? I apologise I didn’t complete the application but I wasn’t aware I was eligible until now for the other entitlements which is disappointing the liquidators did not advise me this and I recall having a few conversations with them. I did complete the form the liquidator provided by have never been paid that amount and that was for lost annual leave, not the other entitlements which I believe I was entitled to. I truly appreciate your time. I hope that there might be an opportunity for me to still claim due to the circumstances.
[11] Exhibit 1, T Documents, T12, page 161, Email from the Applicant to Senator, the Hon. Michaelia Cash.
On 24 March 2021, the Applicant submitted a FEG Initial Claim Form together with submissions in support of her claim.[12] In her submissions, the Applicant provided:
·She was on maternity leave at the time the Company went into Administration and Liquidation and did not receive all of the notices provided to other employees.
·She commenced her FEG claim on 21 May 2018. At which time she was not aware of her entitlement to redundancy/annual leave, personal care leave and lieu of pay details in full. She thought she was only entitled to $10.88.
·She was not contacted by a FEG Claims Officer for more information to further aid/support her claim or to offer her assistance or support in finalising her claim.
·Details about her personal circumstances, including her health circumstances in 2018 to 2021 that impacted upon her ability to deal with her FEG claim.
[12] Exhibit 1, T Documents, T19, pages 212-219, Additional information provided by the Applicant as part of the FEG Initial Claim Form.
On 9 April 2021, a delegate of the Respondent made a decision that the Applicant was not eligible for FEG assistance on the basis that she had not lodged her claim before the end of 12 months after the date of her termination from the Company on 22 May 2018.[13]
[13] Exhibit 1, T Documents, T22, pages 227-235, Initial Decision.
The Applicant sought internal review of that decision[14] and provided a number of further written submission in support of her claim.[15] In her submission dated 11 April 2021, the Applicant provided:[16]
….
As stated in my previous correspondence, I was not aware until May of last year in 2020 that I was eligible for a redundancy pay out and lieu of leave pay, as well as my entitlements which as you can see in the creditors report totalled $10.88, which is what I had filled out in my Proof of Debt Form that I submitted to PA Lucas and Co Pty Ltd. …..
……. I had in my mind thought I had commenced the FEG Claim process. Of course it was a very stressful time, and this is noticed in the typo I made in the date of birth for myself which I had put in 25/07/2018.
I tried to get back into my FEG claim account and it was only this March, in 2021 (March 22nd, 2021) with Ruby's help from the FEG office that we were able to identify the problem and the rest of the technical issues for allowing the claim form to be put through the system, were eventually worked out by March 24th, 2021. That is when my claim number came through via email. I know it is naive of me to think looking back that the registration and commencement of the FEG claim online form was what was required when I entered what details were available to me in May (the 21st) of 2018, but as also mentioned, there was no submit button on the sections, and from memory it said something like 'in progress' and had my name at the top of the right hand corner, which looked like the claim process, as I had registered and was actively providing information for the claim in the two sections I've advised. I am not sure if the system can look back to see all of the account history, but I did take a screenshot on March 22nd this year which shows the two sections were completed with the relevant details.
……
[14]    Exhibit 1, T Documents, T23, page 235, Email from the Applicant to FEG.
[15]    Exhibit 1, T Documents, T24-29, pages 237-320, Emails and written submissions provided by the Applicant.
[16]    Exhibit 1, T Documents, T28, pages 247-250, Email from the Applicant to FEG including an unsigned copy of her employment contract with the Company.
On 11 May 2021, an internal review delegate of the Respondent made a decision to affirm the original decision.[17] The delegate advised that while they acknowledged the Applicant’s personal circumstances which impacted upon her ability to lodge an effective claim within time, there was no discretion to extend the timeframe.[18]
[17] Exhibit 1, T Documents, T32, pages 327-336, Internal Review Decision
[18] Exhibit 1, T Documents, T32, pages 327-336, Internal Review Decision.
Between May 2020 and July 2021, the Applicant wrote to a number of Government Ministers and was provided with responses from Mr Stephen Still, Assistant Secretary of the Respondent’s FEG Assurance Branch. Mr Still communicated his agreement with the reviewable decision and noted that the FEG Act does not provide a decision maker with discretion to extend the 12 month timeframe within which an effective claim must be lodged.[19]
[19] Exhibit 1, T Documents, T13, pages 163-164; T30, pages 321-322; T40, page 351-354; T45, pages 377-378 and T46, page 379, Letters from Mr Stephen Still to the Applicant.
The Applicant sought review of the internal review decision by way of an application made to this Tribunal on 11 May 2021.[20]
[20] Exhibit 1, T Documents, T1, pages 1-6, Application for Review of Decision.
A Hearing was held on 13 April 2022. The Applicant appeared by Microsoft Teams, was self-represented and gave evidence under affirmation. The Tribunal considers that the Applicant was open and honest in giving her evidence and in answering questions asked of her by the Tribunal.
ISSUES
The issue before the Tribunal is whether the Applicant made an effective claim for an advance under the FEG Act in relation to her employment with the Company.
In order to determine that issue, the Tribunal must have regard to whether the Applicant submitted her claim within 12 months of the later of either an insolvency event happening to the Company or the end of her employment.
THE LAW
The FEG Act replaced the administrative General Employee Entitlements and Redundancy Scheme. The objective of the FEG Act is to establish a legislative scheme through which the Commonwealth will pay advances to former employees whose employment has ended as a result of their employer’s insolvency or bankruptcy where the former employees cannot get payment of their entitlements from other sources.[21]
[21] Explanatory Memorandum to the Fair Entitlements Guarantee Bill 2012.
The basic eligibility conditions for a FEG advance are set out in section 10 of the FEG Act as follows:
General conditions
(1) A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a) the person’s employment by a particular employer has ended;
(b) after the commencement of this section, an insolvency event happened to the employer;
(c) the end of the employment:
(i) was due to the insolvency of the employer; or
(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;
(d) the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e) the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f) if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;
(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
Note: Subdivision B excludes certain persons from eligibility.
If person was employed for a partnership by partners
(2) If the person was employed for a partnership by 2 or more of the partners, paragraphs (1)(c), (d) and (e) apply as if each reference in those paragraphs to the employer were a reference to each of the partners who employed the person.
[Emphasis added]
Section 14 of the FEG Act sets out the requirements that must be met in order to make an effective claim as follows:
(1) To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must:
(a) be in a form approved by the Secretary; and
(b) be accompanied by any documents required by the Secretary; and
(c) be made in accordance with subsection (2), and with subsection (3) if it applies.
(2) The claim must be made before the end of 12 months after the later of the following events:
(a) an insolvency event happens to the employer;
(b) the person’s employment by the employer ends.
(3) However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer’s bankruptcy.
(4) Despite subsection (1), the claim is not effective for the purposes of this Act if it is made after a claim (the earlier claim) was made for a payment, under the scheme known as the General Employee Entitlements and Redundancy Scheme, connected with the person’s employment by the employer.
(5) Subsection (4) does not apply if the earlier claim was rejected because an insolvency event had not happened to the employer before the commencement of this section.
Statutory declaration
(6) A claim form approved by the Secretary may provide for verification by statutory declaration of statements in the claim.
Section 5 of the FEG Act provides the definition of an insolvency event and in this matter, relevantly provides that an insolvency event happens to an employer of a person when a liquidator of the employer is appointed under the Corporations Act 2001 (Cth).
EVIDENCE AND CONTENTIONS
Applicant’s Evidence and Contentions
In the Applicant’s Statement of Facts, Issues and Contentions filed with the Tribunal on

21 February 2022,[22] the Applicant provided that her position is:[23]
(a)The Fair Entitlements Guarantee team, under the Attorney-General’s Department did not act upon my claim which was submitted on 21 May 2018.
(b)I put forward my evidence to the Tribunal for its review that I believe defective administration has occurred, and as a result, FEG has not honoured my claim.
[22] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, pages 1-7.
[23] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, page 1, paragraph 2.
The Applicant outlined in her written submissions her concerns in relation to the provision of information to her by the Liquidator and Administrator.[24] She also outlined that on

21 May 2018, she registered for a user account using the FEG online portal and recalled the portal and application form being difficult to navigate and that she believed she had “provided the relevant and required information to make a claim”, however had not followed up due to her outlined personal circumstances.[25]
[24] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraphs 8-10.
[25] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, pages 2-3, paragraph 12-14.
The Applicant outlined her experience, concerns and dissatisfaction with the FEG online portal and the process followed by the Respondent in relation to her initial registration.[26]
[26] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, pages 3-6, paragraphs 15-28.
The Applicant provided that she sought information from the Respondent in relation to the creation of claim numbers and the application number given to her claim in March 2021. The Applicant provided the following submissions:[27]
[27] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, pages 4-5, paragraphs 20-25.
20.FEG had denied receiving my claim on 21 May 2018. I challenged this position, but was told to submit a new claim in March 2021 and it could be considered, which I did. I was unhappy with the fact that FEG would not acknowledge my earlier claim and could not find the information relating to my claim due to system upgrades that had occurred. I was able to confirm after conversations with FEG hotline staff helping me with the claim, it did come up that I appeared to have an older claim number, which was later identified as being from May 2018, not March 2021. (*N.B: This information I sought both via FEG, the FOI Act and also through HWL Ebsworth). I then subsequently went through the review process within the FEG Department.
21.When I enquired with FEG as to the process for creating a claim number, I was advised by the Respondent’s representatives HWL Ebsworth Lawyers (HWL Ebsworth) on 21 December 2021 that:
a. “claim numbers are only assigned upon receipt of a claim within the eFEG System, which is the system used to process FEG claims. This will occur automatically when a claim is received in eFEG from FEG Online Services or upon the Department saving a manually entered claim within eFEG;
b. online claims are only received by the eFEG system once they have been submitted within FEG Online Services. Submission can only occur when all mandatory claim form fields have been completed. FEG Online Services and eFEG are two separate systems that communicate to each other. The commencement of the creation of a claim within FEG Online Services does not equate to submission of the claim. No communication will occur between these platforms until a claim is submitted; and
c. your claim number - 00415622 - was assigned in March 2021, upon receipt of your completed claim. Your original acknowledgment letter was generated on 24 March 2021 within eFEG upon receipt of your claim, and subsequently sent to you on 7 April 2021.”
22.I responded with the fact my claim number “CLAIM-00415622” corresponds directly to other claim numbers at that time (commencing with "00415”) as shown in a report of new claims and dates I obtained under a Freedom of Information (FOI) request. I argued that if the process was followed as described, FEG had clearly received the claim. In response, HWL Ebsworth stated on 24 January 2022 that:
a. “Our client has provided us with the following information to address your query:
i.The claim reference number is a sequential system generated number that is applied at the time the claim is created in eFEG, whether manually, imported or via the OCF submission process.
ii.The claim numbers used for claims created in eFEG in March 2021 range from 461782 -> 462659. If there was an imported claim that the submitted claim was merged with, it could have a different claim number as it will take the claim number of the imported claim the OCF claim was merged with.
iii.The claim was submitted to the department on the 24 March 2021, but on submission it was merged with an imported claim which has an earlier claim number. The imported claim/verified data was provided to the department on the 01/06/2018 by the IP.”
24.FEG through its representatives now acknowledge my 21 May 2018 claim, but now argue it wasn’t an effective claim, and take no responsibility for not communicating this to me. They argue that the claim was incomplete and missing documents such as evidence of the Applicant's Australian citizenship or residency status. I never had the opportunity to provide any missing documentation. I believe that there is a process which is meant to take place to have a letter sent out advising if any documentation is missing and the applicant has a right to supply this. I never heard from FEG after my claim on
21 May 2018, until I commenced proceedings to get to the bottom of why my entitlements had not been paid and clarification on why this was the case.
25.Following conversations with FEG’s helpline for the online form, I was advised that the online form had changed since I originally submitted my claim to make it more usable. For example, it now has further information I believe to highlight if more information is required, and a submit button is shown even if further information is required (based on my understanding). From my perspective, how was I (or any reasonable person), supposed to know it was not an effective claim? The whole process clearly did not accommodate for those in a vulnerable position at the time. Particularly those had not received support from anyone in relation to this process. ……

In summary, the Applicant contended that:[28]
31. I would also argue that any reasonable person would agree that an effective claim can only be made if there is also effective administration of the claim process. FEG’s updates to the online form reflects the difficulties people were having with it, when I first applied back in 2018. Secondly, any reasonable person would expect to be contacted if there were issues with their claim.
32.Ultimately, I believe the date of my original claim (21 May 2018) should be accepted, that administrative issues/oversight (human or system error), had impacted my claim, and that an effective claim should be approved based on the original claim date and supported by the subsequent claim information provided to FEG, so my entitlements can be granted.
[28] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, pages 6-7, paragraphs 31-32.
At Hearing the Applicant gave evidence under affirmation and submitted that she was seeking her registration on the FEG online portal and commencement of a claim on

21 May 2018 be considered as constituting an effective claim. The Applicant told the Tribunal that on 21 May 2018, she had been provided with very little information, however had been told about FEG by a colleague and had taken steps to register and fill out all she could on the form. She said, that at that stage, she considered that she had done everything required of her to make a claim.
At Hearing the Applicant told the Tribunal that while she now knows and accepts the claim, she commenced on 21 May 2018 did not include all of the required information and was not an effective claim, she did not realise that in May 2018. She said she had not been contacted by the FEG team in relation to the claim she had commenced at any stage.
The Applicant told the Tribunal that:
·On 21 May 2018, she logged in and registered an account on the FEG portal which allowed her to start a claim form. She knows that she entered her personal details and what she believed she was owed, however was not sure if other details were completed.
·She was not made aware that her claim had not been submitted.
·She has concerns with the conduct of the Administrator/Liquidator that she may take further.
·She did everything in her power given the limited knowledge she had in 2018 to make a claim for her entitlements.
·She had difficulties understanding the process associated with FEG claims, the FEG online portal, online claim process and assignment of application numbers and why the FEG team had not contacted her after she commenced a claim in the portal.
·The claim submitted in March 2021 was not a new claim. It just completed the claim from 2018.
·She believes she has been disadvantaged because she was on maternity leave at the time the Company went into Administration and Liquidation.
·When asked why it appeared that she had changed her position between May 2020 and May 2021 in relation to whether or not the claim commenced in 2018 had been submitted, this was because she could not confirm everything was completed at the time. However, if the claim was made on a paper form and information was missing, then she would have been contacted and given the opportunity to provide that information. Further there was no submit button in 2018 and the system has now changed to include that.
·She now understands that in 2018 the FEG online portal did not show a submit button until all information was completed, however she did not know that at the time.
Respondent’s Contentions
The Respondent contended that the Tribunal should affirm the reviewable decision as:[29]
22.In the Applicant's case, the 'insolvency event' occurred on 26 April 2018, when Peter Anthony Lucas of P A Lucas & Co Pty Ltd was appointed as Liquidator of the Company (T7/131). The Applicant's employment by the Company ended on 22 May 2018, according to the information provided by her in her Claim Form (T19/200). The later event was therefore the end of the Applicant's employment on 22 May 2018, which meant that she was required to submit her Claim Form by 22 May 2019, in order to satisfy the timing element for an effective claim in s 14(2) of the FEG Act.
23.The Applicant did not submit her Claim Form until 24 March 2021, making it approximately 1 year, 10 months and 2 days outside of the prescribed timeframe. The Claim Form is therefore not an effective claim for the purposes of the FEG Act. The reasons for, and circumstances surrounding, the delay in lodging the Applicant's Claim Form cannot change this conclusion, as there is no discretion in the FEG Act to allow the Secretary, or the Tribunal on review, to extend the 12 month timeframe within which an effective claim must be lodged, nor is there discretion to commence the 12 month timeframe from a later date.
24.For completeness, the Applicant's earlier claim, which she commenced on
21 May 2018, cannot be taken as an effective claim. This is on the basis that the claim was never made to the Secretary by or on behalf of the Applicant
(s 10(1)(h)) - the claim was incomplete, missing mandatory information and never submitted. It was also not accompanied by any documents required by the Secretary in accordance with s 14(1)(b) of the FEG Act, including, for example, evidence of the Applicant's Australian citizenship or residency status.
25.Any allegations made by the Applicant as to deficiencies of the FEG online portal in May 2018 (all of which are rejected by the Respondent), are immaterial for the purpose of the Tribunal proceedings, given that there is no discretion to extend or otherwise vary the 12 month timeframe.
[29] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 4, paragraphs 22-25.
At Hearing the Respondent further provided that a claim number was only properly assigned when a claim was made. A claim number may be preliminarily assigned when an insolvency practitioner provides details of prospective claimants to the Respondent, however that number would be put in abeyance until such time the individual made a claim.
The Respondent drew the Tribunal’s attention to the screen shot provided by the Applicant in March 2021 showing the online claim form[30] and indicated that three of the required sections of the form had not been started, however the personal details and what entitlements are you claiming sections had been migrated across from the 2018 claim that had been commenced. The Respondent contended that this indicated those sections were not completed in 2018, particularly given the documentary evidence submitted by the Applicant regarding the 2018 claim form which reflects a similarity between the 2018 and 2021 claim forms[31] and the email of the Respondent outlining the records it held in relation to the Applicant’s FEG user account as including access on “21 May 2018 – Account created. Incomplete claim form“ and the next access as not being until 22 March 2021.[32]
[30]    Exhibit 1, T Documents, T24, page 239, Online FEG Claim Form progress screen shot provided by the Applicant dated 22 March 2021.
[31]    Exhibit 4, New Claims Document provided to Applicant under FOI, pages 430-696.
[32]    Exhibit 1, T Documents, T39, page 349, Email from FEG Reviews to the Applicant.
CONSIDERATION
In order to be eligible for an advance under the FEG Act, a person must meet a number of threshold tests. In this matter, the threshold test in question is whether the Applicant made an effective claim.
In this matter, for the Applicant’s claim to be an effective claim pursuant to section 14 of the FEG Act, it must have been made in a form approved by the Respondent, be accompanied by any documents required by the Respondent and have been made before the end of 12 months after the later of an insolvency event happening to the employer or the person’s employment with the employer ending.
In this matter, the insolvency event happened to the Company on 26 April 2018 when it was placed into liquidation. The Applicant’s employment with the Company ended on

22 May 2018. As such, the Applicant was required to have made her claim for assistance under the FEG Act within 12 months of 22 May 2018.
At Hearing it was clear to the Tribunal that the Applicant was seeking clarification around the FEG claim process and particularly how it applied to her circumstances. The Applicant was focused on understanding aspects of her claim that she considers to have resulted from defective administration.
The Tribunal cannot however comment on the user friendliness of the FEG online portal in 2018, whether it was reasonable for someone to have expected that a part finished claim would be submitted in circumstances where no submit button was provided, the Respondent’s processes or the actions of its officers. Such matters whilst of legitimate concern to the Applicant, are not matters for which the Tribunal has jurisdiction to consider.[33]
[33] It is noted that it is open to the Applicant to, at any time, make a claim for compensation under the Compensation for Detriment caused by Defective Administration Scheme if she considers it appropriate for her to do so.
At Hearing the issue of the assignment of claim numbers and their sequence was discussed. The Applicant questioned whether such information would have an effect on the outcome of her claim for a FEG advance. Whilst the Tribunal understands the Applicant’s desire to work out the process followed in relation to her claim, the issue of claim numbers is not relevant to the decision it must decide. The issue the Tribunal must decide is whether or not an effective claim had been made.
The Tribunal accepts that during the period of 2018 to 2021, the Applicant experienced a number of personal difficulties of which she needed to focus on and navigate herself through. The Tribunal appreciates the Applicant’s honesty in relation to why there was a delay in her following up her FEG claim as being contributed to by the fact that at first, she thought her entitlements were limited to $10.88, meaning that it was not, in the scheme of what else was happening in her life, at the top of her list of things to worry about. The Applicant was open in telling the Tribunal that this all changed after she had a discussion with her neighbour in May 2020 and she realised her entitlements may in fact have been more substantial.
The FEG Act clearly places the obligation on the employee to make a claim or to have a claim made on their behalf. The requirement to make a claim within the 12 month period is a strict requirement of which no discretion to extend that period has been provided by the FEG Act.[34] As such the circumstances surrounding why the Applicant’s claim was not made within the 12 month period are irrelevant to the outcome of the Applicant’s claim under the FEG Act. In the absence of an effective claim, the Applicant’s application must fail.
[34] See Browne and Secretary, Department of Employment [2015] AATA 978; Paraponiaris and Secretary, Department of Employment [2015] AATA 895 and Brown and Secretary, Department of Employment [2017] AATA 96.
The Applicant at Hearing and throughout the majority of her written evidence conceded that while she had commenced a claim in May 2018, it was not completed or submitted at that time. This concession is consistent with the submissions made by the Respondent.
As such, based on the evidence before it, particularly that referred to in paragraph 33 above, the Tribunal finds that the Applicant did not make a claim for assistance under the FEG Act within the required 12 months period as she did not submit an approved claim form or the required information to the Respondent within 12 months of 22 May 2018. Consequently, the Tribunal must find that the Applicant did not make an effective claim and is therefore not eligible for an advance under the FEG Act.
DECISION
For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

....................[SGD].............................
Associate
Dated: 26 April 2022

Date of hearing: 13 April 2022

Applicant:

Solicitors for the Respondent:

By MS Teams

Mr Will Sharpe

HWL Ebsworth Lawyers