Vickers and Secretary, Department of Education, Training and Youth Affairs - [2001] AATA 1027

DECISION AND REASONS FOR DECISION [2001] AATA 1027

ADMINISTRATIVE APPEALS TRIBUNAL No Q2001/370 and Q2001/410

GENERAL ADMINISTRATIVE DIVISION
           Re      MATTHEW VICKERS and DAVID VICKERS
  Applicants
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING and YOUTH AFFAIRS
  Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date19 December 2001
PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..............................................
R G Kenny
Member

CATCHWORDS
SOCIAL SECURITY – youth allowance – commencement date for payment of allowance

Social Security (Administration) Act 1999 ss 11, 13, 41, 42, schedule 2
Acts Interpretation Act 1901 s 28A, 29
Administrative Appeals Tribunal Act 1975 s34B

REASONS FOR DECISION

19 December 2001 Mr R G Kenny, Member

Background

This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of applications to review decisions, dated 4 April 2001, of the Social Security Appeals Tribunal (SSAT), which affirmed decisions of a Centrelink delegate dated 31 January 2001 in which it was determined that youth allowance was to be paid to Matthew Vickers and David Vickers (the applicants) from 2 January 2001 and from no earlier date. The decision was based on the delegate's finding that no claims had been made which enabled such payment to be made at any time prior to 2 January 2001.
In evidence before me were two sets of T documents, and these included applications for review (T1) received on 1 May 2001 and 14 May 2001, respectively; and statements, dated 18 May 2001 and 13 June 2001 respectively, completed by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T2).
Also in evidence were supplementary documents comprising a statement from each of the applicants, dated 10 July 2001, in which they consented to the matters proceeding without a hearing; statements from the respondent, dated 21 June 2001 and 25 July 2001, respectively, in which the respondent also consented to the matters being determined without a hearing; a statement, dated 10 July 2001, in which David Vickers requested that the two matters be dealt with together; and a statement, dated 25 July 2001, in which the respondent also consented to the hearing of both matters together.
In relation to a hearing in the absence of the parties, section 34B of the Act reads:
34B Circumstances in which hearing may be dispensed with
If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

In accordance with the terms of that provision and being satisfied that the review can be determined adequately in the absence of the parties, I considered that this was an appropriate course and proceeded, accordingly.
Evidence
On 2 January 2001, the applicants indicated an intention to lodge claims for payment of youth allowance. In response, letters, dated 2 January 2001, were sent to them by Centrelink advising each of them of the need to make a formal claim. Formal claims were lodged with Centrelink within a period of 14 days thereafter (see documents T18 and T8, respectively). As a result, youth allowance was paid to each of them from 2 January 2001, the date of telephone contact. No dispute arises on the material in relation to payments from that period onwards. However, the applicants contend that the youth allowance should be paid to them from the time that first contact was made with Centrelink about youth allowance. This was in 2000.
On 4 February 2000, the applicants' mother, Mrs Vickers, made telephone contact with a Centrelink call centre in relation to the payment of youth allowance to, in particular, David Vickers. Mrs Vickers has stated that she was advised by the Centrelink officer with whom she spoke at that time that there was no point in making a claim in relation to her son. This was because youth allowance was paid on an income-tested basis and Mrs Vickers states that she was told that the family income level was sufficiently high to preclude payment. The applicants contend that, in reliance on that information, no formal claim was made for youth allowance for either of them until January 2001. Further, they also contend that the information given in February 2000 was incorrect and that, because of the family income level at that time, youth allowance would have been payable to them if a claim had been made.
The respondent does not dispute that contact was made with a Centrelink call centre as noted above but does not concede that information was given about the pointlessness of a claim being made. Rather, the respondent refers to a file copy of a letter, dated 4 February 2000, that was sent to David Vickers at his postal address. This letter confirmed that contact had been made with Centrelink on that same date and referred to documents that were enclosed with the letter. These were identified in the letter as comprising a claim for youth allowance, a guide to the payment of youth allowance and a youth allowance rate guide. The letter also advised the recipient that, in order for payment of youth allowance to made to David Vickers from 4 February 2000, the claim form enclosed with the letter had to be lodged by 18 February 2000.
The applicants submitted that this letter from Centrelink was not received at their address and that no claim forms were lodged by them in accordance with it.
In their applications for review, the applicants have referred to difficult personal circumstances, relating to the illness of their grandmother, that they were facing in early 2000 and to their trust in and reliance upon Centrelink officers to give correct information.
Discussion of Evidence
The evidence confirms that Mrs Vickers spoke with a Centrelink call centre on 4 February 2000, at least in relation to the payment of youth allowance to the applicant David Vickers. A copy of a letter from Centrelink was also in evidence (see document T4 of file Q01/410). It is in the terms outlined above in paragraph 8 and is addressed to Mr David Vickers, as follows:
PO Box 95
Proserpine Qld 4800
That address is the same as in the letters sent to the applicants on 2 January 2001 and the same as that provided by them on the claim forms they each lodged subsequently in January 2001. I am reasonably satisfied that this Centrelink letter was properly addressed and sent to David Vickers on 4 February 2000.
There is no evidence of any reference in the Centrelink call centre exchange, in February 2000, between Mrs Vickers and the Centrelink officer in relation to Matthew Vickers. Nor is there evidence of any letter sent to him concerning youth allowance. Indeed, the applicants concede that the focus of the exchange was David Vickers, who is the older of the applicants, and that Matthew Vickers' circumstances were not the subject of specific reference in the exchange on 4 February 2000. They contend that, as a result of what their mother was told in February 2000, they believed that, if youth allowance was not payable to David Vickers, neither would it have been payable to Matthew Vickers.
Legislative Framework
The qualifying criteria and the payability provisions for youth allowance, which is a social security payment, are set out in the Social Security Act 1999. It is not disputed that the applicants were qualified to receive the allowance at any relevant time. The issue for the Tribunal is the payability of youth allowance. This is a matter different from qualification for the allowance. For example, a person may meet the criteria which qualify him/her for the allowance, but it may not be payable because of the level of the relevant person's income or because a claim was not made.
Some issues relating to the payability of youth allowance are provided for in the Social Security (Administration) Act 1999 (the Administration Act). Sub-section 11(1) of the Administration Act gives the general rule for the need to make a claim. The provision reads:
11 General rule
(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.
Section 16 of the Administration Act sets out the manner in which a claim is to be made. It reads:
16 How to make a claim
(1) A person makes a claim for a social security payment or a concession card:
(a) by lodging a written claim for the payment or card; or
(b) by making the claim in accordance with subsection (7).
(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.
(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.
In some situations, the Administration Act deems that a claim is made. In that regard, sub-section 13(1) of the Administration Act reads:
13 Deemed claim—person contacting Department about a claim for a social security payment
(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.
Sub-section 13(4) of the Administration Act provides that a reference in that provision 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.
The Administration Act also makes provision for the determination of the start date of payability of youth allowance. Those provisions read:
41 Commencement
(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.
(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.
42 Start day
For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
Schedule part 2
3 Start 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.
On the basis of those provisions, a claim must be in writing and lodged appropriately. Where there was no prior contact, as provided for in sub-section 13(1) of the Administration Act, youth allowance will be paid from the date when the claim was lodged. Where there was contact as provided for in sub-section 13(1) of the Administration Act, and the claim is lodged within 14 days of that contact date, the payment will be made from that contact date. In all cases, of course, the person must have been qualified to receive the payment.

Application of law

The Administration Act makes specific provision for the way in which a claim for youth allowance must be made and also the manner which must be adopted to calculate the starting date of any such payment. No formal claim in writing was lodged by or on behalf of either applicant until January 2001. An indication of intention to make those claims was given by them on 2 January 2001. By following that with a formal claim within 14 days, youth allowance was payable, in accordance with the terms of sub-section 13(1) of the Administration Act, from 2 January 2001.
In David Vickers' case, as there was no lodgement of a formal claim within 14 days of the letter dated 4 February 2000, sub-section 13(1) has no application to the situation in 2000. That is the case, despite his evidence that he was not aware of the letter.
The Social Security Act and the Administration Act make provision for the service of various types of documents which constitute "decisions" under Social Security legislation. In other legislation, provision is made for the serving of other types of documentation, such as letters of advice, when it is done through the normal course of post. In that regard, the following provisions in the Acts Interpretation Act 1901 are relevant. They read:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
29 Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
These provisions apply to the situation where a Commonwealth agency, such as Centrelink, is permitted to send a document to a person. Centrelink is enabled by paragraph 13(1)(c) of the Administration Act to send a written notice to a person in David Vickers' position after contact was made on 4 February 2000. The evidence shows that this was done and that the notice in the form of a letter was properly addressed and sent by post to him. There is no evidence before me which establishes that the letter was not delivered to the relevant address. On the basis of the provisions in the Acts Interpretation Act and in the circumstances of this case, David Vickers is deemed to have received the letter sent on 4 February 2000. There was no lodgement by him of a claim for youth allowance within the 14 day time-frame laid down by sub-section 13(1) of the Administration Act and, therefore, no claim was made or can be deemed to have been made by him before January 2001. The Administration Act does not enable youth allowance to be paid to him prior to January 2001.
In Matthew Vickers' case, there is no evidence of a letter being sent to him before January 2001 and no evidence of any expression by him of his intention to lodge a claim for youth allowance prior to 2 January 2001. Therefore, in his case the Administration Act does not enable youth allowance to be paid to him prior to January 2001.
I note the contention by the applicants that they seek compensation for what they consider to have been incorrect advice given to their mother in February 2000. Matters of that kind which constitute allegations of maladministration by a Commonwealth agency do not fall within the jurisdiction of the Tribunal.

Decision

The Tribunal affirms the decisions under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed:         .....................................................................................
  Associate
Date of Decision  19 December 2001
Hearing on the papers