Winchester and Secretary, Department of Family and Community Services
[2005] AATA 867
•7 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 867
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/157
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN WINCHESTER Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr EK Christie, Member Date7 September 2005
PlaceBrisbane
Decision The Tribunal decides that there are “special circumstances” of the case that made it not “reasonably practicable” for Mr Winchester to lodge his application for newstart allowance. The matter is remitted to the respondent with the Direction that it reconsider Mr Winchester’s application for newstart allowance by having it backdated to the date of contact (19 August 2004) by specific reference to the requirements of section 13(3A)(b) of the Social Security (Administration) Act 1999. ..................[Sgd].......................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance claim – Tribunal’s power to backdate newstart allowance to an earlier date – special circumstances
Social Security (Administration) Act 1999 ss 13
Drake v Minister for Immigration and Ethnic Affairs(1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634REASONS FOR DECISION
7 September 2005 Dr EK Christie, Member 1. This is an application by John Winchester for a review of a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 2 February 2005 that granted Mr Winchester newstart allowance from 17 September 2004. Mr Winchester’s previous employment had been terminated on 23 July 2004. Mr Winchester’s application for review is for payment of newstart allowance to commence from a date prior to 17 September 2004.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1].
3. The applicant represented himself at the hearing. The respondent was represented by Mr J Howard, a Departmental Advocate.
Issues Before The Tribunal
4. The only issue for the Tribunal to decide was whether Mr Winchester could be paid newstart allowance from any date prior to 17 September 2004. The relevant legislation to decide Mr Winchester’s application is the Social Security (Administration) Act 1999 (“the Act”).
Facts
5. At the commencement of the hearing, Mr Winchester was referred to the following findings of facts made by the SSAT:
“(i)Mr Winchester contacted Centrelink in relation to claiming newstart allowance on 26 July 2004, 19 and 26 August 2004, and 17 September 2004.
(ii)Centrelink sent letters to Mr Winchester acknowledging the three later contacts.
(iii)Mr Winchester lodged a claim for newstart allowance on 21 September 2004.” [T2, Folio 7]
He agreed that the first two findings were correct. He qualified the third finding stating that it needed to be considered in the context of his acting on advice that he had been given, and relied upon, from a Centrelink Call Centre.
6. Mr Winchester also acknowledged that the information he had provided at the hearing before the SSAT was correct. The “Summary of Information” provided at the SSAT hearing was as follows:
§ “His employment was terminated on 23 July 2004, despite the excellent results he had achieved for the employer. It was not a harmonious parting. On 26 July 2004 Mr Winchester phoned the Centrelink call centre and explained the situation. The operator told him to obtain an employment separation certificate and to then re-contact Centrelink to put the ‘wheels in motion’.
§ Mr Winchester requested a separation certificate, and it took his former employer almost a month to provide one. He then phoned Centrelink immediately and said he had the certificate. As he had consulted a solicitor about pursuing a remedy against the former employer, Mr Winchester explained to the Centrelink officer that he was intending to proceed with industrial relations mediation. The officer’s response was to the effect that this was fine and he should keep Centrelink informed. The officer arranged a time for Mr Winchester to go into the Centrelink officer.
§ Some days before the proposed appointment, Mr Winchester rang Centrelink. The mediation session was imminent. On this occasion the officer advised that there would be no point going ahead with the appointment because if Mr Winchester was successful at the mediation he would not be entitled to newstart allowance.
§ In the Industrial Relations Commission, Mr Winchester had lodged an application for reinstatement. This was the required form of action, even though reinstatement was a most unlikely outcome. At the mediation session, which was held on 30 August 2004, the dispute was resolved by the former employer agreeing to pay Mr Winchester a redundancy payment of $6,194 in three fortnightly instalments. However it then took four to six weeks for the firm to sign the agreement. The first payment was then made in November, and the last on 26 December 2004. The payments were made to Mr Winchester’s solicitor, who has retained them for his fees. Mr Winchester is in dispute with the solicitor about this.
§ Asked by the Tribunal about his next contact with Centrelink after the mediation, Mr Winchester said he phoned, told the officer that there would be a settlement, and he was told to come in. He did so, and completed his claim form on that occasion. Tanya, the officer who took the claim, told him that his newstart allowance would not be backdated beyond 17 September. Up to that point he expected he would be fully backpaid. He had kept Centrelink informed as requested in the letters it had sent.
§ Asked by the Tribunal about an appointment arranged for 2 September 2004, Mr Winchester said he had phoned a few days before and explained that the mediation had been resolved favourably. The officer told him not to bother coming in on 2 September as ‘it all looks rosy’.
§ He has since learned from the authorised review officer that the redundancy payment – apparently irrespective of the amount – would not have stopped him from being paid newstart allowance.
§ He did not lodge a claim earlier because he was following incorrect Centrelink advice: firstly to the effect that he needed to obtain an employment separation certificate before claiming; and secondly to the effect that there would be no point claiming when he was expecting a redundancy payment.” [T2, Folios 3,4]
The Tribunal’s Decision-Making Powers
7. The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions are available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. There is only one decision possible in this application for review. That is whether Mr Winchester can be paid newstart allowance from any date prior to 17 September 2004.
8. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal has considered all the evidence and information before the Tribunal at the date of the hearing. The Tribunal makes the observation that there is some factual uncertainty in the available evidence, and in the information before it, as to the actual date that Mr Winchester qualified for newstart allowance.
Statutory Requirements And Case Law
9. Section 13(1) of the Act provides a mechanism for deeming that a person’s start day is the date the person contacts Centrelink:
“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.”
10. Where a person lodges their claim outside the 14 day period but within 13 weeks of their initial contact with Centrelink, their claim may still be deemed to have been made on the date of their contact in particular circumstances. The start date can be backdated up to 13 weeks where the applicant’s “special circumstances” have impacted on his ability to lodge the claim within the 14 day period. Of particular relevance is section 13(3A) of the Act which provides:
“13.(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.” [Tribunal emphasis]
11. The Tribunal has had to consider the meaning and application of the expression “special circumstances” on many occasions. The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 has been an oft-quoted benchmark as to the interpretation of “special circumstances”. In that case the Tribunal said (at 3):
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
12. In Boscolo v Secretary, Department of Social Security(1999) 53 ALD 277, a case that also referred to the Federal Court’s decision in Beadle, French J held that “special circumstances” is where there is “something unusual or different to take the matter the subject of the discretion out of the ordinary … [But] that does not require the case be extremely unusual, uncommon or exceptional.”
13. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 (a case on “special circumstances” and section 1184 of the Act) at 545, Kiefel J, after referring to the Federal Court’s decision in Beadle, observed that special circumstances:
“…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.”
14. The Tribunal has given due regard to the following legal principle, as considered by the Full Federal Court in the context of overpayments, that recognizes the “wide discretion” which is conferred by section 1237(1), in relation to “special circumstances”:
“Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind keeping in mind the scope and purposes of the Act, to make a decision one way or the other:” [Full Federal Court in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 at 450]
15. The Tribunal agrees with the following observations of Senior Member Handley in Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543 at 552-553, with respect to advice given to social security recipients by Departmental officers:
“Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel. Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies. Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represent government departments and agencies. Citizens should be entitled to expect nothing less.”
and
“the responsibility for efficient and effective administration of departmental practice and policy must carry with it a responsibility for any error or mistake which is made by the departmental officers alone. The presence of the debt in the circumstances of this case is a circumstance undoubtedly special. That the department would seek to enforce it and recover it only reinforces the circumstances being special.”
Contentions And Submissions Of The Parties
16. Mr Howard stated that there were no Centrelink Call Centre records that could validate Mr Winchester’s claim that he contacted Centrelink on 26 July 2004; there was no Centrelink Call Centre receipt number to reveal this contact. He submitted that the first Centrelink record of Mr Winchester ringing to express an intention to claim newstart allowance was the contact made on 19 August 2004 with a further call to express a similar intention being made on 26 August 2004. In turn, in the context of these dates, it was also relevant that Mr Winchester did not lodge his claim until 21 September 2004.
17. Mr Howard submitted that as Mr Winchester’s claim for newstart allowance was lodged on 21 September 2004, Centrelink had correctly decided to pay entitlements from 17 September 2004. Mr Howard contended that, even if the Tribunal accepted Mr Winchester’s evidence that he contacted Centrelink on 26 July 2004 with the intention to claim for newstart allowance, section 13(3A) could not be applied in relation to this contact as the Department did not send a written notice to Mr Winchester acknowledging this contact.
18. In relation to the telephone contacts on 19 August and 26 August 2004, Mr Howard submitted that not all the statutory requirements imposed by section 13(3A) were satisfied. Specifically, he submitted that there were no “special circumstances” in Mr Winchester’s factual case that would come within the meaning of “unusual”, “uncommon” or “exceptional” and so make them “markedly different from the usual run of cases”.
19. Mr Howard’s final submission was that there was no documentary evidence before the Tribunal to support Mr Winchester’s claim that he received incorrect advice about his entitlement to newstart allowance.
20. Mr Howard concluded with the submission that the appropriate pathway for Mr Winchester to pursue would be to seek compensation through the Departmental Policy: “Compensation for Financial Detriment Caused by Defective Administration”.
21. Mr Winchester submitted that the issues in dispute did not relate to the facts – but the correct application of the law to the facts. He submitted that the earlier decisions failed to make provision for the mis-information in the advice he had been given by the Centrelink Call Centre in relation to his newstart allowance application. He had relied on the advice given to him as being accurate and correct. However, this proved not to be the case – and gave the following examples.
(a)Advice that there was a need to obtain an employment separation certificate and, after obtaining it, to then re-contact Centrelink to initiate his newstart allowance application. It had taken a month before his former employer provided the separation certificate and so a month’s delay, for him, in being able to proceed in making his application.
(b)Advice given on the effects of his industrial relations mediation on the lodging of his application. He had acted on the Centrelink advice that there was no point pursuing an application for newstart allowance until the mediation had been resolved. He submitted that, much later, this advice was conceded by the Department to be incorrect. It was not until his discussions with Centrelink on 17 September 2004 that he first became aware that he had been misled in relation to his mediation compensation payments and his eligibility for newstart allowance.
22. On receipt of the Departmental letter (26 August 2004), he attempted to ring Centrelink on many occasions over the period 28 August – 17 September 2004 (6 – 8 calls/day) but could not get through. He stated that he was later advised that there had been an “overflow problem” associated with a flood of sole parent supplement enquiries that had caused this phone access problem.
23. Mr Winchester conceded that the call he had made on 26 July 2004 was a generic inquiry in relation to newstart allowance.
24. Mr Winchester concluded with the submission that, at all times of his involvement with Centrelink, he had relied on information given to him as being accurate. Accordingly, it was his contention that Centrelink staff were trained to provide clients with accurate information. If this were not the case, then it would be a “special circumstance”, contending that this would be “unusual”.
Consideration Of The Issues
25. The first issue for the Tribunal to decide is the credibility of Mr Winchester as a witness. The Tribunal finds Mr Winchester to be a witness of truth who had acted consistently in his dealings with Centrelink at all times.
26. In relation to the enquiry made at the Centrelink Call Centre of 26 July 2004 the Tribunal accepts Mr Winchester’s evidence that only a general enquiry had been made.
27. As a result the Tribunal concludes that no receipt number report of the call could have been made by Centrelink. Given this finding, section 13(1)(c) cannot be satisfied as there is no written notice confirming that Mr Winchester has contacted the Department in relation to the making of his “generic” claim. Therefore, the Tribunal can make no conclusion other than to find that 26 July 2004 cannot be deemed a starting date for Mr Winchester’s newstart allowance entitlements.
28. The evidence before the Tribunal reveals that Mr Winchester contacted the Centrelink Call Centre on 19 August (3 file numbers) and on 26 August 2004 (one file number) [Exhibit 2]. Mr Howard’s interpretation of the various Departmental codes recorded on the 19 August 2004 file, indicates that they recorded an intention to claim newstart allowance, a claim for payment and a “trigger” for the Department to send a letter to Mr Winchester.
29. For the purposes of deeming a starting date to 19 (or 26) August 2004, the Tribunal makes the following findings:
(a)that Mr Winchester had contacted the Department in relation to a claim for newstart allowance on 19 August 2004;
(b) that Mr Winchester received written notice acknowledging that the Department had been contacted in relation to the making of his claim; and
(c)that Mr Winchester lodged a claim for newstart allowance more than 14 days – but less than 13 weeks, after the Department had been contacted.
30. The Tribunal has already made the observation that there is some factual uncertainty in the available evidence as to the actual date that Mr Winchester qualified for newstart allowance (see paragraph 8).
31. The respondent’s submissions on the meaning of the statutory term “special circumstances”, is largely based on a consideration of the Departmental Policy “Guide to the Social Security Law: 8.1.1.60 Deemed Claims”. This Policy states:
“Special circumstances in which it may be reasonable to lodge a claim within 13 weeks of contact could include:
§ a customer having practical difficulties in meeting the 14 day time frame as a result of living in a remote area, or
§ a customer residing in a country with which Australia has a social security agreement, where there are reasons why the person could not lodge within the 14 day period, or
§ Example: Where there are extended postal delays, and/or where the person was unable to lodge in time with the competent institution in the agreement country.
§ an emergency interfering with a customer’s plans to lodge within the 14 day period, such as a natural disaster,
§ Example: A customer’s home destroyed by a bushfire.” [Tribunal emphasis]
32. Clearly, none of Mr Winchester’s factual circumstances come within any of these Departmental Guidelines. However, these Guidelines are not an exhaustive list, as they are qualified with the opening words “could include”. Mr Howard conceded this much in that these words result in the Policy criteria not being exhaustive. Accordingly, the Tribunal considers that “special circumstances” need to be considered on a case by case basis: see Riddell’s case. Furthermore, the Tribunal concludes that any failure to do so (i.e. by restricting consideration to only the guidelines specified in the Departmental Policy) could well defeat the purpose of the legislation and so be inconsistent with the legal principles in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The Tribunal agrees with the observations of Brennan J (as he then was) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (supra) where at 642 he stated:
“Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable…”
Moreover, he noted its effectiveness in promoting consistency, stating:
“Inconsistency is not merely inelegant: it brings the process of deciding into dispute.”
Considerations to facilitate the guidance given by an adopted policy, thereby ensuring the integrity of decision-making, were outlined by Brennan J (at 640):
“Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute.”
33. The Tribunal concludes that there are circumstances in this application for review which are sufficiently “uncommon” to warrant the description of “special circumstances” in accordance with the stated law (Beadle, Boscolo and Groth cases). Specifically, the information provided to Mr Winchester from the queries he made to the Centrelink Call Centre, were incorrect in terms of the advice given to him in relation to the need for an employment separation certificate as well as the effects of his industrial relations mediation on the timing of his newstart allowance application. The Tribunal has made a finding as to the credibility of Mr Winchester and accepts his evidence in this regard.
34. Each piece of incorrect advice has contributed to a situation whereby the claim form was not lodged until 21 September 2004. However, had the correct advice been given, such a situation would have been avoided. Clearly, incorrect advice in this factual situation, would be an “uncommon” – even “unusual” occurrence. Furthermore, the need for citizens to rely on correct Departmental advice being given to them – as was the case for Mr Winchester, has been considered by the Tribunal to be a “special circumstance”: see McAvoy’s case. This is the case in Mr Winchester’s situation. The Tribunal concludes that the incorrect Departmental advice is clearly correlated with the delay in the lodging of his claim for newstart allowance and so is a “special circumstance”.
35. For all of the above reasons the Tribunal decides that there are “special circumstances” of the case that made it not “reasonably practicable” for Mr Winchester to lodge his application for newstart allowance. The matter is remitted to the respondent with the Direction that it reconsider Mr Winchester’s application for newstart allowance by having it backdated to the date of contact (19 August 2004), by specific reference to the requirements of section 13(3A)(b), as all other elements of section 13(3A) have been satisfied.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 31 August 2005
Date of Decision 7 September 2005
The Applicant appeared in person
For the Respondent Mr J Howard, Departmental Advocate
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