Van De Wiel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 136
•1 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4324
GENERAL ADMINISTRATIVE DIVISION ) Re STAN VAN DE WIEL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member Date1 March 2011
PlaceMelbourne
Decision The Tribunal affirms the decision made by the Social Security Appeals Tribunal dated 31 August 2010. ...........[sgd] Egon Fice......................
Senior Member
SOCIAL SECURITY – age pension – claim form – delay in lodging form – holiday – special circumstances – backdating provision – reasonably practicable
Social Security (Administration) Act 1999 ss 11(1), 13, 13(1), 13(3A), 16, 16(2),
Schedule 2, Clause 3
Beadle v Director-General of Social Security (1985) 7 ALD 670
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Andrews and Australian Research Council (2007) 44 AAR 407
Chamber’s 21st Century Dictionary
Shorter Oxford English Dictionary
REASONS FOR DECISION
1 March 2011 Mr Egon Fice, Senior Member 1. Mr Stan van de Wiel became eligible for the age pension on 17 March 2010, having reached the age of 65 years on that day. He attended a Centrelink office on the following day in order to complete a claim form for the age pension. The Centrelink office did not have any claim forms available for Mr van de Wiel but offered to provide a photocopy of that form. Rather than wait for it on that day, Mr van de Wiel agreed that it should be posted to his residential address. Centrelink duly posted a claim form to Mr van de Wiel on 18 March 2010.
2. For a number of reasons, which are set out below, Mr van de Wiel did not lodge his claim form for the age pension until 27 May 2010. He was granted the age pension on 15 June 2010, although Centrelink informed him that his payments would commence from 27 May 2010. Mr van de Wiel was dissatisfied with that decision, particularly as he had spoken with Centrelink on 18 March 2010 regarding applying for the age pension. He sought review of the decision by an authorised review officer (ARO).
3. On 5 August 2010 the ARO informed Mr van de Wiel that Centrelink’s decision to commence payment of his age pension on 27 May 2010 was correct. Mr van de Wiel then sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 31 August 2010 the SSAT affirmed the ARO’s decision. Mr van de Wiel then lodged an application for review of the SSAT decision with the Tribunal on 7 October 2010.
4. The issues which arise for my determination are:
(a)whether Mr van de Wiel should receive the age pension from 18 March 2010; and
(b)if the answer to (a) is in the negative, whether, because of special circumstances, it was not reasonably practicable for Mr van de Wiel to lodge the claim at an earlier date and therefore his claim should be deemed to have been made on the day on which the Department was contacted.
MR VAN DE WIEL’S CONTACT WITH CENTRELINK
5. Mr van de Wiel testified that when he attended the Centrelink office on 18 March 2010 intending to lodge a claim for the age pension, he had to wait for about one hour before he was served. When he reached the counter, he was told that the office did not have an age pension claim form which he could complete. The Centrelink officer told Mr van de Wiel that he would photocopy a form for him but he would need to wait for a further period of time. The Centrelink officer then suggested that he could copy the form and post it to Mr van de Wiel. Mr van de Wiel agreed to that course of action.
6. Under the cover of a letter dated 18 March 2010, the Cheltenham office of Centrelink posted to Mr van de Wiel an age pension claim form. The cover letter stated:
What you need to do to make sure that you receive your payment from earliest date possible, you must return your claim and any requests documentation on or before 01 April 2010... If there is any reason why cannot do this, please contact us immediately.
7. At that time, Mr van de Wiel had overseas visitors staying with him in his then temporary accommodation, a small flat. Mr van de Wiel said it was a two bedroom flat and, because of the lack of room, he slept on the couch while the visitors shared the bedrooms.
8. On 19 March 2010 he accompanied his guests on a holiday to Tasmania where they stayed for some two weeks. They then went to Sydney and did not return to Mr van de Wiel’s flat until 1 May 2010. It was only then that he opened his mail and decided he could not deal with completing the age pension claim form until his visitors had left. This was because he said he needed to get information from documents which were in storage and that was likely to take him some time. He believed he was obliged to look after his guests, who had extended their intended stay in Australia due to the volcanic eruption in Iceland which had grounded aircraft throughout Europe.
9. Mr van de Wiel said his visitors had left by 7 May 2010 and he then attended to completing the age pension claim form. It took him an entire day searching through boxes in storage to locate material which was necessary to obtain information to enable him to complete the claim form.
10. Mr van de Wiel did not read the cover letter attached to the claim form, stating that the form needed to be returned with 14 days and that he should contact Centrelink if he was unable to do so. Mr van de Wiel also said that he did not read the first page of the claim for age pension and pension bonus form which plainly states that he should return the completed claim form to the Centrelink Customer Service Centre within 14 days and that if he was not able to do that, he should contact Centrelink for extra time. The statement regarding returning the claim form within 14 days is in bold type.
11. In any event, Mr van de Wiel said that because he had been in contact with Centrelink through its international office in Hobart regarding a Dutch pension, he believed Centrelink had most of the information which it required. He also said that the details required to be provided for his age pension claim required information about receipt of a payment from the Netherlands Government. The details of that pension took some time to locate. Although Mr van de Wiel did not finally lodge his claim form until 27 May 2010, he was unable to provide any further explanation for the delay in lodging that claim after 7 May 2010 when his visitors left for Europe.
PAYMENT OF THE AGE PENSION
12. A person who is eligible for the age pension must make a claim for the pension if the person wishes to be paid. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) 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.
13. Section 16 of the Administration Act explains how a person makes a claim for a Social Security payment. It provides that a claim is made by lodging a written claim for the payment in a manner approved by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary). Furthermore, s 16(2) of the Administration Act provides:
(2)A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
14. A claim is lodged by being delivered to a person, apparently performing duties, at a place and in a manner approved for the purpose by the Secretary (for example, a Centrelink office). Therefore, in order for Mr van de Wiel to have made a claim for the age pension, he was required to submit the prescribed claim form to a Centrelink office. Mr van de Wiel in fact did that on 27 May 2010.
15. Schedule 2 of the Administration Act deals with the rules for working out the start day for the payment of a Social Security benefit or pension. The general rule is set out at clause 3. Clause 3 provides:
3Start 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.
Therefore, in the absence of any other legislative provisions, Mr van de Wiel’s start day would be 27 May 2010.
16. However, in certain circumstances, a claim may be deemed to be made at an earlier date provided certain conditions have been met. Section 13 of the Administration Act deems claims to have been made prior to the date on which they are lodged if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment;
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment;
(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.
17. There was no dispute about the fact that Mr van de Wiel’s attendance at the Centrelink office on 18 March 2010 satisfies (a) above. On 18 March, Mr van de Wiel had reached the age of 65 years and he was an Australian citizen then resident in Australia. There was no question about whether he was qualified to receive the age pension on that date therefore satisfying (b). Although Mr van de Wiel did not lodge an application on that date, the claim form was sent to him under the cover of a letter dated 18 March 2010. The letter confirmed that Centrelink was contacted on that day regarding Mr van de Wiel’s intention to claim the age pension. It also explained that he needed to return his claim form and any other requested documentation on or before 1 April 2010. That is, 14 days after Mr van de Wiel contacted the Department. Therefore, the conditions set out in (c) are satisfied. The problem of course lies with (d). Mr van de Wiel did not lodge his claim for a social security payment within 14 days after he contacted Centrelink indicating he intended to claim the age pension. Therefore, I find that the deeming provision set out in s 13(1) of the Administration Act cannot apply to Mr van de Wiel to backdate the start date of his age pension to 18 March 2010.
THE SPECIAL CIRCUMSTANCES PROVISION
18. There is a further provision in the Administration Act which may permit backdating the start day of a person’s age pension where they have lodged a claim more than 14 days after receiving an acknowledgement letter from Centrelink that it had been contacted in relation to making a claim. It may apply provided the claim is lodged not more than 13 weeks after the Department is contacted. The conditions for the application of this section are set out in s 13(3A) of the Administration Act which provides:
(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.
19. The expression special circumstances, used in the context of the Social Security Act, has been the subject of judicial comment over many years. The Full Court of the Federal Court in Beadle v Director-General of Social Security (1985) 7 ALD 670, said at 674:
… More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase “special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss. …
20. In Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277, French J said, at 281-282:
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. … The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324: Burchett J. But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 ; 27 ALD 309 ; 108 ALR 322.
21. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J said, at 545, after referring to Beadle’s case:
… for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
22. In essence, in order to avail himself of the backdating provision set out in s 13(3A) of the Administration Act, Mr van de Wiel needed to demonstrate that his circumstances were unusual or not the ordinary case.
23. As I have mentioned above, Mr van de Wiel said that he did not open the letter from Centrelink dated 18 March 2010 until he returned from holidaying with his overseas visitors in early May 2010. Mr van de Wiel conceded that he did not tell the Centrelink officer on 18 March 2010 that he was about to go away on holidays and would not be at his normal place of residence for some weeks in the future. I have no doubt that had he done so, the Centrelink officer would have pointed out to him that he would need to lodge his claim form on that day, otherwise his start day for the payment of his age pension would not be 18 March 2010. Therefore, I find that the fact Mr van de Wiel went on holidays and was away for the following two week period after his first contact with Centrelink is not a circumstance which could be said to be out of the usual or ordinary case. Mr van de Wiel simply failed to inform Centrelink that he would not be at his place of residence, nor did Mr van de Wiel make any further enquiries about the start date of age pension payments.
24. Mr van de Wiel also submitted that he understood Centrelink had the essential details regarding his age, residence and nationality as a result of his prior contact regarding an income support payment from the Netherland’s Government, and therefore he was not concerned about the time lapse in lodging his age pension claim form. However, and with respect to Mr van de Wiel, such an assumption is not warranted. It is most certainly not an unusual or out of the ordinary circumstance. There are many social security applicants who receive pension payments from overseas, who have provided details to Centrelink about those payments and who are nevertheless required to lodge claim forms. I find that this cannot be described as a special circumstance.
25. Mr van de Wiel also explained that even upon return to his place of residence in Melbourne, he was not able to complete the claim form. He stated this was because he was in temporary accommodation; he had to look after his overseas guests who were stranded in Australia due to the Iceland volcanic eruption; and he had a particularly small unit where he lacked privacy. Again, with respect to this submission, there is no reason why Mr van de Wiel could not have simply contacted a Centrelink office and explained his circumstances at that time. He said he did not do so because he did not have a landline at the flat but rather a mobile phone, and on the last occasion he attempted to contact Centrelink, he was left holding on for half an hour or so. With respect to Mr van de Wiel, I cannot find that his circumstances at that time can be described as special. Had he been sufficiently concerned about the start date of his pension payments, there was no reason that is apparent on the evidence why Mr van de Wiel could not have contacted a Centrelink office to explain his circumstances, and if necessary, lodge his claim form at that time. In fact, even after his overseas guests had departed, Mr van de Wiel did not complete and lodge his claim form for about three weeks. No explanation was given for that delay.
26. Having found that the circumstances surrounding Mr van de Wiel’s delay in lodging his age pension claim form are not special, it is strictly not necessary for me to determine whether it was not reasonably practicable for Mr van de Wiel to lodge his claim at an earlier date. However, in the event that I am wrong about the special circumstances issue, I should say something about whether it was not reasonably practicable for Mr van de Wiel to lodge his claim at an earlier date.
27. The expression reasonably practicable is not defined in the Administration Act. It must therefore be given its ordinary meaning having regard to the context in which it appears in that legislation. The word practicable is defined as:
1. capable of being done, used or successfully carried out; feasible …(Chamber’s 21st Century Dictionary).
The Chamber’s Dictionary also compares the meanings of practicable and practical. Both words mean able to be done, used, etc but practical has the further connotation of efficient, sensible, useful and therefore more judgemental. In my view, it is fair to say that the word practicable has, by implication, a necessary connotation about reasonableness. The word reasonable is defined in the Shorter Oxford English Dictionary as:
4. not going beyond the limit assigned by reason; not extravagant or excessive; moderate.
Therefore, when the two words are combined, it seems to me that what is intended by the use of the expression in the context of the Administration Act is that it must be possible to lodge the claim form within the stipulated time although it should not cause excessive or inordinate hardship or inconvenience in doing so.
28. The expression as soon as practicable has been judicially considered although not in the context of the Administration Act. This has frequently occurred in migration cases. Deputy President Forgie in Re Andrews and Australian Research Council (2007) 44 AAR 407, at 427 said, after referring to a number of those authorities:
[52] These authorities reveal that the amount of time permitted a person who must comply with an obligation to act “as soon as practicable” must be judged by reference to the circumstances pertaining to the person and to the person’s capacity to comply with the obligation as well as by reference to the obligation itself. …
29. When viewed in this way, Mr van de Wiel’s capacity to have lodged the claim form at an earlier date cannot be in doubt. He simply needed to make it clear to Centrelink on 18 March 2010 that he was going away on holidays on the following day and would therefore not be able to lodge his claim form for some weeks after that first contact. Had that occurred, I have no reason to doubt that Mr van de Wiel would have completed the form on that day. Other than the fact that the queues were long and the waiting periods significant, there was nothing in Mr van de Wiel’s evidence to suggest he could not have waited to complete the form on that day.
30. Furthermore, I should add that it was not the Centrelink officer’s duty to inform Mr van de Wiel that his start day could be affected if he did not lodge the form very shortly after his first contact with Centrelink. In fact, Centrelink attempted to inform him of that both in the cover letter of 18 March 2010 and of course on the front page of the claim form. Regardless of those very clear statements about a 14 day time limit, Mr van de Wiel either overlooked those or disregarded them. Whichever it was, he cannot say it was not reasonably practicable for him to lodge the claim at an earlier time.
31. It should be apparent from what I have said above that I find Mr van de Wiel’s circumstances were not special and it was reasonably practicable for him to lodge a claim at an earlier time. Therefore, he cannot satisfy the provisions which allow for an extended period of time after first contact with Centrelink in which to lodge an age pension claim, thereby preserving his start date.
CONCLUSION
32. Despite making enquiries with Centrelink on 18 March 2010 about the age pension, which he was as at that date eligible to receive, Mr van de Wiel did not lodge a claim until 27 May 2010. His failure to lodge the claim form within 14 days of the first contact with Centrelink means that his start date cannot be deemed to be 18 March 2010.
33. Although Mr van de Wiel explained the reasons for the late lodgement of his age pension claim form, I have found that his circumstances at that time were not special and that it was reasonably practicable for him to lodge a claim at an earlier date. He did not do so. Therefore, the correct start date for the payment of Mr van de Wiel’s age pension was 27 May 2010. The decision made by the SSAT on 31 August 2010 was correct and I affirm that decision.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior MemberSigned: .........[sgd].....................................................................
E. Montalto, AssociateDate/s of Hearing 17 February 2011
Date of Decision 1 March 2011
Representative for the Applicant Self RepresentedRepresentative for the Respondent A. Carson, Centrelink Advocacy Branch
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