Trickett and Secretary, Department of Social Services
[2014] AATA 38
•29 January 2014
[2014] AATA 38
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4781
Re
Peter Trickett
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 29 January 2013 Place Canberra The decision under review is affirmed.
.....................[sgd]............................
RM Creyke, Senior Member
Catchwords
SOCIAL SECURITY – age pension – correct date of claim – whether applicant entitled to retrospective payment – role of Guide to Social Security Law in decision making
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) sections 11, 16,13(1), 42 and clause 3(1) of Schedule 2
Cases
Green v Daniels (1977) 13 ALR 1
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
RM Creyke, Senior Member
The application for review relates to a retrospective claim for age pension by Mr Peter Trickett for the 2011-2012 financial year. Mr Trickett’s claim for age pension was accepted by Centrelink (agency) in a letter from the Secretary, Department of Social Services (Secretary) with effect from 12 March 2013.
The claim for payment from 1 July 2011 was rejected, a decision upheld on review by an authorised review officer on 4 June 2013, and affirmed on further review by the Social Security Appeals Tribunal on 15 August 2013.
On 20 September 2013 Mr Trickett applied to the Tribunal for further review. The matter was decided by the Tribunal on the papers on 9 January 2014.
Background
On 12 March 2013, Mr Peter Trickett, born 1934, contacted Centrelink in person claiming he and his wife had qualified for an age pension from the 2011-2012 year, a claim he supported in a letter dated 11 March 2011.
Centrelink responded that day sending Mr Trickett the claim form which he completed and which was returned on 18 March 2013.
On 27 March 2013, Centrelink advised Mr Trickett that his claim had been accepted from 12 March 2013. Mr Trickett replied by letter requesting reconsideration of the decision not to make the payments retrospective to 1 July 2011. Centrelink upheld the original decision, from which Mr Trickett sought further review, leading to the application to the Tribunal.
Mr and Mrs Trickett had been in receipt of age pension for about eight years prior to the pension being cancelled in 2010. The pension was cancelled because the combined income of the couple exceeded the maximum allowable amount due to the sale of a property in that year.
Upon receipt of information from the Australian Taxation Office concerning their income assessments for 2011-2012, Mr Trickett assessed the couple were again eligible to claim age pension, an assessment confirmed by Centrelink when he sought advice on 12 March 2013.
Legislation
The relevant legislation is the Social Security Act 1991 (Cth) (Act), which provides for payment of age pension, and the Social Security (Administration) Act 1999 (Cth) (Administration Act). Relevant provisions are discussed in Consideration.
Issues
The sole issue is whether Mr and Mrs Trickett’s age pension should be paid from 1 July 2011, rather than 12 March 2013.
Consideration
Mr Trickett has asked that the age pension granted to himself and his wife, with a commencement date of 12 March 2013, be backdated to 1 July 2011 on the basis that he was qualified from the earlier date.
Section 11 of the Administration Act provides that for a person to be granted a social security payment, including the age pension, the person must make a claim for the payment. Section 16 of the Administration Act provides that the claim must be in writing. Mr Trickett made a claim in writing for himself and his wife on 18 March 2013. There is no evidence that Mr Trickett made an inquiry about renewal of his age pension prior to 18 March 2013.
The Administration Act contains provisions dealing with retrospective payments of pension in certain circumstances. Section 13 of the Administration Act provides:
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.
Mr Trickett had approached Centrelink to claim an age pension on 12 March 2013. He was advised to lodge his claim on or before 23 March 2013, being fourteen days after his approach. He did lodge his formal application on 18 March 2013, that is, within the fourteen days. Accordingly in accordance with section 13(1) of the Administration Act his claim is deemed to have been lodged on 12 March 2013. The payment from 12 March 2013 was correct under that provision.
Nonetheless, Mr Trickett maintains that he should be entitled to have his claim backdated to 1 July 2011, when he said he and his wife qualified for age pension. Mr Trickett refers to the Guide to Social Security Law (Guide) clause 8.1.1.10. That clause states that the date of claim is ‘is generally the date of lodgement but may be … the date of qualification’ (emphasis added).
His argument is that since Centrelink accepted that he qualified from 1 July 2011, he should be paid from that date. The only reason he had not applied earlier was that he needed to wait for his tax assessment for that year before he estimated that he again qualified for age pension. As he had not known prior to then that he might qualify, he had not put in an earlier claim.
The issue with Mr Trickett’s submission is that the social security legislation generally provides that payment of pensions or benefits commences only from the date of the application in writing, or in limited circumstances, for short periods prior to that date. The Tribunal, like Centrelink, is bound by the legislation.[1]
[1] Green v Daniels (1977) 13 ALR 1
Section 11 of the Administration Act states that a person who wishes to apply for a pension or benefit must ‘make a claim for the payment’ or benefit. Section 16 says that to make a claim, the claim must be in writing. Mr Trickett lodged his written application on 18 March 2013. Although Mr Trickett says his claim is merely a reactivation of a previous claim, not a new claim, that construction of the issue is not correct. He received an age pension between 2002 and 2010, but due to a sale of property his income exceeded the allowable limit and in 2010 Mr Trickett’s age pension was cancelled, not suspended. Accordingly, he was required to make a new claim for age pension when and if he next qualified. This he did in 2013.
When a new claim is made, there are rules concerning the ‘start day’, that is, the commencement date for payment of a pension or benefit.[2] The rules about a ‘start day’ are set out in the Administration Act and Schedule 2 of that Act. Clause 3(1) of Schedule 2 states that normally ‘the person’s start day in relation to the payment is the day on which the claim is made’. In Mr Trickett’s case that would be 18 March 2013, being the day on which his claim in writing was lodged.
[2] Social Security (Administration) Act 1999 (Cth) s 42.
There are, however, limited circumstances in which payment can be made to a qualified person prior to the date of lodgement of their claim. Clause 13(1) of the Administration Act provides that if the person makes an inquiry about a social security payment, the person is qualified on the day of the inquiry, the person lodges their claim within fourteen days of the inquiry, and the Secretary, acknowledges the inquiry was made, the start day is the day on which the inquiry was made.
In Mr Trickett’s case since he made an inquiry on 12 March 2013, he was qualified on that day and he lodged his claim in writing on 18 March 2013, that is, within fourteen days of the day of his inquiry, he was entitled to have his start day backdated to the date of his inquiry, namely, 12 March 2013. In other words he received the benefit of this earlier start date. Schedule 2 also contains other circumstances in which an earlier start date can apply. None of those circumstances apply to Mr Trickett’s claim.
Mr Trickett, however, has argued that the Guide clause 8.1.1.10, in its provisions concerning the ‘start day’, states that this ’is generally the date the claim is made or taken to be made but which may be the date of qualification’. He argues the statement that the start date ‘may be the date of qualification’ means his claim should be backdated to the date on which he first qualified, namely, 1 July 2011.
This argument fails for two reasons. In the first instance, the Guide specifically states that it ‘aims to assist in understanding the associated law and its application. The Guides …. are not intended to be used as sole decision making tools. Decision makers should base their decisions on the relevant law, with regard to the Australian Government’s policy contained in the Guides’.
The Guide is a policy document. It is not the law. If there is an apparent conflict between the policy and the law, the law prevails.[3] There is an apparent conflict between the Guide and the law in relation to the start day when it refers to a start day being ‘the date of qualification’. Although the Guide states, correctly, that in the limited circumstances set out in Schedule 2 of the Administration Act a person’s start day can be the day on which they qualified, none of those circumstances apply to Mr Trickett. In other words, the short-hand description in the Guide appears to apply to Mr Trickett but does not do so because his circumstances do not fall within the exceptions set out in the Schedule.
[3] Green v Daniels (1977) 13 ALR 1 at 11.
Since the Tribunal and previous decision-makers in this matter are bound by the law, not the Guide, it must ignore this statement in the Guide since it is misleading in relation to Mr Trickett’s circumstances, and only apply the law to his case. Since under the law, his start day can only be made retrospective to the date he first made an inquiry, namely, 12 March 2013, and none of the other start day provisions apply to him, that is the earliest date on which payment of the age pension can commence.
Second, the covering words of the document warn readers that it is a policy document only and decision-makers are not to use it as the sole decision-making guide since, by inference, as here, it may be misleading. So there is an explicit acknowledgement in the Guide that in cases of actual or apparent discrepancy it is not to be relied on. Mr Trickett is taken to have been warned by these covering words that he should rely solely on the terms of the law, not the Guide, when deciding when he qualified for the age pension .
In these circumstances, the Tribunal has no option but to affirm the decision.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ...............[sgd]..............................
Associate
29 January 2014
Date of hearing 9 January 2014 Applicant In person Advocate for the Respondent Julie Zhou Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Contract Formation
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Retrospective Payment
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Deemed Claim
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Administrative Law
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Entitlement to Benefits
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