Vince and Secretary, Department of Social Services (Social security)
[2025] ARTA 1286
•5 June 2025
Vince and Secretary, Department of Social Services (Social security) [2025] ARTA 1286 (5 June 2025)
Applicant/s: Ms Vince
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2025/S193304
Tribunal: Member R King
Place:Brisbane
Date:5 June 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the claim for carer payment that Ms Vince lodged on 20 April 2023 be reassessed and that, if Ms Vince qualified for carer payment and carer payment was payable to her at the time of claim, she be paid carer payment from that date.
CATCHWORDS
SOCIAL SECURITY – Carer Payment – claim properly and lawfully rejected – claim not in the required form – requests for further information with no deadline – reasonable excuse for non-compliance – intelligible notice of a decision – date of effect of a favourable decision – decision under review set aside and remitted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
Ms Vince claimed carer payment (CP) on 20 April 2023.
On 16 August 2023, Centrelink rejected her claim. She subsequently lodged a new claim and was granted CP from 31 July 2024.
On 5 February 2025, following internal review, a Centrelink authorised review officer (ARO) affirmed both the decision to reject the claim lodged on 20 April 2023 and the start date of the subsequent claim.
On 14 February 2025, Ms Vince applied to this Tribunal for external review of both the decision to reject the claim for CP that she lodged on 20 April 2023 and the start date for payment of CP.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security (Administration) Act 1999 (the Admin Act).
Section 16 of the Admin Act allows Centrelink to specify the form of the claim and the means by which it may be lodged.
Section 36 of the Admin Act requires Centrelink to either grant or reject a claim. Pursuant to section 37 of the Admin Act, a claim can only be granted if Centrelink is satisfied that the person is qualified for the payment and the payment is payable to the person. Pursuant to section 39 of the Admin Act, a claim that has not been determined within 13 weeks is deemed to have been rejected. However, the 13-week period must not include any periods during which the person is obtaining evidence relating to the claim that has been requested by Centrelink.
Pursuant to subsection 64(1) of the Admin Act, if a person claiming a payment fails to comply with a reasonable request for information relevant to the claim and has no reasonable excuse for the failure to comply, the payment claimed is not payable. Paragraph 64(1)(f) allows the decision maker a broad discretion as to whether it is reasonable to determine that a payment is not payable, pursuant to subsection 64(1) of the Admin Act.
The rules for determining a person’s start day, once a payment is granted, are set out in Schedule 2 to the Admin Act. As a general rule, pursuant to clause 3 of Schedule 2, if a person is qualified on the date when the claim is lodged, the lodgement date is the start day for payments. Clause 4 allows the start date to be the date that the person becomes qualified if an early claim is lodged and “the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made”.
Section 109 of the Admin Act specifies the date of effect of a favourable decision, when a person seeks internal review of a decision made by Centrelink. The date of effect depends on whether the person was notified of the original decision and if so, whether the request for review was made within 13 weeks of notification. In summary, if a person is notified of a decision and seeks review within 13 weeks of notification, the date of effect of the favourable decision is the date of effect of the original decision that the favourable decision has replaced. However, if the request for review is more than 13 weeks after notification, the favourable decision has effect from when the person sought review. If a person is not notified of a decision, the date of effect of a favourable review of that decision is the date when the original decision was given effect.
Pursuant to section 147 of the Admin Act, broadly similar provisions apply when a person seeks external review of a decision made after internal review.
Pursuant to section 237 of the Admin Act a person is taken to have been given notice of a decision if the notice was sent by prepaid mail to the address last advised to Centrelink. However, the date when the notice is given is not determined by the date of issuance. When the decision pertains to rate of payment, notifications regarding a person’s rate of payment are treated as notification of a decision regarding rate of payment. Pursuant to subsection 109(7) of the Admin Act, a person is deemed to have been given notice of a rate increase if that rate increase arose as a result of rate indexation against the consumer price index.
The legislation does not specify what constitutes notice of a decision. However, this is a matter that has been the subject of case law. In Phelan and Secretary, Department of Social Services (Social services second review) [2019] AATA 554(27 March 2019), after reviewing previous case law, SM Tavoularis stated that a valid notice must “provide sufficient information to enable an ordinary and reasonable person to understand (1) that a decision had been made and (2) the content of that decision”. In Stephens; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4256 (22 October 2019), SM Illingworth, after citing Phelan, stated that “to be valid, it (the notice) must communicate the fact that a decision has been made and the content of that decision. The Notice must be intelligible to the Respondent such that he was informed of the making of the decision and its content. The threshold of intelligibility is how the Notice would be read by ordinary or reasonable persons within the group of persons to whom the information is directed”.
The issues which arise in this case are:
· Was the claim for CP that Ms Vince lodged on 20 April 2023 properly and lawfully rejected, and if not;
· What is the date of effect of the Tribunal’s decision to reinstate the claim Ms Vince lodged on 20 April 2023?
CONSIDERATION
The evidence before me comprises:
(i) documents submitted by Centrelink (the hearing papers) as being relevant to the original decision and the internal review of that decision; and,
(ii) sworn evidence provided by Ms Vince during a telephone hearing on 26 May 2025.
Centrelink’s position is set out in the ARO’s decision statement. The ARO found that the claim Ms Vince lodged on 20 April 2023 was properly and lawfully rejected because the claim was incomplete, and Ms Vince failed to respond to requests for further information. The ARO found that, in accordance with Schedule 2 to the Admin Act, the start date for her subsequent claim was the date she lodged the claim, which was 31 July 2024.
During the hearing, Ms Vince told me that she attempted to comply with the requests made by Centrelink but that it was difficult to quickly obtain some of the information they requested as it related to her former partner’s business affairs. She said that she explained the situation to Centrelink who had assured her that she could be paid from the date of her initial claim once she provided the necessary information. She was also told that she could provide a statutory declaration in respect of information that was unavailable, which she did. However, after being told that she had to lodge a new claim, she was then told that she could only be paid from the date of that claim. Ms Vince submitted that she had maintained regular contact with Centrelink throughout the process and did not understand why her initial claim had been rejected and why she was not backdated CP to the date of that claim.
Was the claim for CP that Ms Vince lodged on 20 April 2023 properly and lawfully rejected?
The evidence in the hearing papers suggests that Centrelink applied sections 36 and 64 of the Admin Act to reject the claim for CP that Ms Vince lodged on 20 April 2023. The ARO did not specifically refer to section 64 of the Admin Act but the file note at page 168 suggests that Centrelink found that Ms Vince had not complied with a request for information which made CP not payable to her, pursuant to section 64 of the Admin Act and this meant that the claim could be rejected pursuant to section 36 of the Admin Act.
The ARO suggested that the claim was rejected because it was not in the required form. I do not regard this as a proper grounds for rejecting the claim. Ms Vince claimed using the form specified by Centrelink. The request for further information was appropriate and was required to assess the claim but was not part of the claim form. The ARO also indicates that the claim was rejected because Ms Vince failed to provide information needed to assess the claim. This is consistent with rejection, pursuant to sections 36 and 64 of the Admin Act.
A claim can be automatically rejected after 13 weeks if not determined, pursuant to section 39 of the Admin Act. However, such a rejection would not be appropriate or lawful in this case, given that Centrelink had requested that Ms Vince provide additional information.
I note that the hearing papers include a copy of a letter dated 16 August 2023 that requested that Ms Vince complete and return the enclosed SS293 – Relationship Details – Separated Under One Roof Form. The letter advised that a decision would be made about Ms Vince’s claim for CP after Centrelink had assessed the information provided. No deadline for return of the form was specified.
Copies of file notes contained within the hearing papers indicate that Ms Vince had previously been asked to provide information about investment properties and two Mod R forms. The records indicate that she had partially complied with these requirements.
Neither the original decision maker nor the ARO appear to have considered the tests of reasonableness specified in subsection 64(1) of the Admin Act. These tests require consideration as to whether Ms Vince had a reasonable excuse for non-compliance and whether it is reasonable overall to apply subsection 64(1) to determine that CP was not payable to Ms Vince.
Given that the only formal written request for further information was issued on the same day as Ms Vince’s claim was rejected, it is manifestly unreasonable to apply subsection 64(1) in respect of non-compliance with this request. It is not clear that the previous requests met the requirements specified in subsection 64(1) but, even if they did, I am satisfied that Ms Vince’s explanation that information regarding her former partner’s financial situation was difficult to quickly obtain, given the circumstances of her relationship at the time, to be a reasonable excuse for non-compliance.
Overall, I am not satisfied that the claim for CP that Ms Vince lodged on 20 April 2023 was properly and lawfully rejected. It follows that the claim must be reassessed and determined afresh. I will remit the matter to Centrelink to do so.
What is the date of effect of the Tribunal’s decision to reinstate the claim for CP that Ms Vince lodged on 20 April 2023?
I note that a file entry dated 30 August 2023 (page 171 of the hearing papers) states that Ms Vince had requested reconsideration of the decision to reject her claim for CP. As the decision to reject her claim was made on 16 August 2023, Mis Vince sought internal review well within 13 weeks of notification of the decision. I note that Ms Vince sought external review well within 13 weeks of notification of the outcome of the internal review.
It follows that pursuant to sections 109 and 147 of the Admin Act the outcome of the reassessment of Ms Vince’s original claim has effect from 20 April 2023.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the claim for carer payment that Ms Vince lodged on 20 April 2023 be reassessed and that, if Ms Vince qualified for carer payment and carer payment was payable to her at the time of claim, she be paid carer payment from that date.
| Date of hearing: | Monday, 26 May 2025 |
0
2
0