Xin and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3826

Xin and Secretary, Department of Social Services (Social services second review) [2021] AATA 3826 (20 October 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2929

2020/2931

2020/3064

Re:Liyan Xin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:20 October 2021   

Place:Sydney

The decisions under review are affirmed.

..................................[SGD]......................................

Mr S Evans, Member  

CATCHWORDS

SOCIAL SECURITY – carer allowance, carer payment and student start up scholarship – whether Applicant is eligible for back payment – vulnerable claimant – information not provided – decisions under review affirmed.

LEGISLATION

Acts Interpretation Act 1901 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration Act) 1999 (Cth)

SECONDARY MATERIALS

Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)
Social Security Guide

REASONS FOR DECISION

Mr S Evans, Member

20 October 2021

INTRODUCTION

1. The Applicant, Liyan Xin, seeks review of a decision of the Social Services and Child Support Division (‘AAT1’) of the Administrative Appeals Tribunal made on 22 April 2020. That decision affirmed a previous decision of the of the Secretary of the Department of Social Services (‘the Secretary’) refusing her claims for back payment of Student Start-up Scholarship (‘SSS’), Carer Payment (‘CP’) and Carer Allowance (‘CA’).

   BACKGROUND

2. Ms Xin was in receipt of Austudy between 7 March 2009 and 22 February 2012 and received Newstart Allowance at various times between 4 December 2012 and 24 November 2015. 

3. On 11 September 2015 Ms Xin lodged a claim for Carer Allowance and Carer Payment, and both were granted from 1 September 2015. 

4. On 2 September 2019 Ms Xin lodged a Review of a Decision form with the Department of Social Services (‘the Agency’) requesting a review of payment of SSS for the period 2010 and 2011. 

5. The following day she lodged a Review of a Decision form with the Agency requesting ‘Unpaid Carer payments upto [sic] 12 week[s] before 01/09/2015’ and requested review of the rate at which she received CP for the ‘first 3-4 month[s] from 01/09/2015’. 

6. On 4 November 2019 her request regarding CP was referred to an Authorised Review Officer (‘ARO’). The ARO affirmed the decision regarding CA and CP on 5 December 2019. 

7. On 24 January 2020 the Agency wrote to Ms Xin confirming the decision not to pay her SSS for the period 2010 and 2011. Following the request to review the decision by Ms Xin, an ARO affirmed the decision on 10 March 2020. 

8. Ms Xin subsequently applied to the AAT1 for review of the ARO’s decision. On 22 April 2020, both decisions were affirmed by the AAT1. Ms Xin now seeks review of the AAT1 decisions by the General Division of the Tribunal.

9. For the reasons which follow, the decision under review will be affirmed.

   ISSUES

10. The issues to be determined are whether Ms Xin is eligible:

    (i)to be paid CA and CP prior to 1 September 2015; and

    (ii)to be paid arrears of SSS during 2010 and 2011.

    LEGISLATION AND POLICY

11. The relevant legislation is set out in the Social Security Act 1991 (Cth) (‘the Act’), the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) and the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (‘the Determination’). 

12. The Tribunal is also bound to consider and apply departmental policy unless there are cogent reasons not to do so. Policy relevant to Ms Xin’s application is contained within the Social Security Guide (‘the Guide’).   

13. Subdivision A of Division 1 of the Administration Act sets out the rules for making a claim for a social security payment. Section 11 provides:

    Subdivision A—Need for claim

    11  General rule

    (1)       Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:

    (a) a social security payment; or

    …

    must make a claim for the payment or card in accordance with this Division.

14. Subdivision C of Division 1 of the Administration Act sets out the rules for making a claim for a social security payment and provides that a claim may be made by lodging a written claim for the payment or in a manner approved by the Secretary.

15. Section 41 of the Administration Act provides that unless another provision provides otherwise, a social security payment becomes payable on the person’s start day. Schedule 2 of the Administration Act sets out rules for working out the start date of a social security payment. Clause 3 of the Schedule sets out the general rule in considering a person’s start date: 

    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.

    IS MS XIN ELIGIBLE TO BE PAID CARER PAYMENT OR CARER ALLOWANCE PRIOR TO 1 SEPTEMBER 2015?

16. As mentioned, Ms Xin submitted a claim for CP and CA on 11 September 2015 in which she confirmed that she had been providing care since 18 May 2013. Following lodgement her claim was approved on 24 November 2015 and payment of both CP and CA backdated to 1 September 2015.

17. With her original written request for review of her CA and CP dated September 2019 Ms Xin provided a document issued by the Agency detailing changes in the provision of Carer Allowance that would take effect from 1 January 2017. The document states in part: 

    From 1 January 2017, Carer Allowance recipients will no longer be able to have their payment backdated up to 12 weeks prior to contacting Centrelink about the payment.

    Consistent with most other payments, Carer Allowance will be payable to applicants from the date of claim, or the date they first contact Centrelink indicating their intent to claim.

18. Ms Xin’s argument appears to rest on this document demonstrating that she was entitled to have her carer allowance backdated 12 weeks from when she first lodged her claim in September 2015.

19. She contends that she should be deemed to have made a claim for CP and CA at an earlier date as provided for by subdivision B section 12 of the Administration Act, which sets out the circumstances under which a claim is deemed to have been made. Section 12 states in part:

    Subdivision B – Cases where claim not necessary

    12  Deemed claim in certain cases

    (1)       The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:

    (a)       the person became qualified for the new payment while receiving another income support payment; or

    (b)       the person became qualified for the new payment immediately after ceasing to receive another income support payment.

    (2)       The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:

    (a)       the day that is 13 weeks before the day on which the Secretary’s determination is made; or

    (b)       if the person became qualified for the new payment after the day referred to in paragraph (a)—the day on which the person became qualified for the new payment.

20. The Secretary contends that there is no scope for Ms Xin to be paid CP or CA from a date earlier than 1 September 2015 and that there is no legislative basis on which her CP and CA claim can be paid from an earlier date. 

21. Subsections 13(1) and 13(3A) of the Administration Act set out the requirements for a claim to be deemed to have been made, including that the applicant must be in a ‘class of persons determined in an instrument under section 14A’. The Determination sets out the class of persons to whom section 13 of the Administration Act applies. The Determination provides for vulnerable claimants, for example, persons who are subject to domestic or family violence, homeless, hospitalised or experiencing high stress associated with a relationship separation. 

22. The Guide at 8.1.1.10 explains a ‘deemed claim’ as being a situation in which: 

    … a vulnerable claimant who is qualified for a payment or a concession card contacts Services Australia, the day of the contact is the day the claim is taken to have been made provided the person lodges a claim within 14 days, or within 13 weeks if a medical condition or special circumstances affected the person's ability to lodge the claim earlier.

23. There is no evidence before the Tribunal to indicate Ms Xin was a vulnerable claimant. After being taken to the Determination during the hearing Ms Xin conceded that she did not meet any of the criteria set out in the Determination and that she was not a vulnerable person in the period she applied for CP and CA.

24. As Ms Xin was not a vulnerable claimant, I am satisfied that she is not eligible to be deemed to have made a claim earlier than 11 September 2015 by way of the deeming provision in subdivision B section 12 of the Administration Act.

25. In order to have been eligible for CA or CP from an earlier date, Ms Xin was required to have lodged a claim at an earlier date. As she did not do so, and the deeming provisions do not apply, Ms Xin’s claim in regard to CA and CP cannot succeed.  

    IS MS XIN ELIGIBLE TO BE PAID STUDENT START-UP SCHOLARSHIP?

26. Mx Xin contends that she was eligible for SSS payments whilst she was studying her bachelor’s degree and in receipt of Austudy. In a written submission she notes that she began full time study in March 2009 and was in receipt of Austudy through until 23 February 2012. She writes in part: 

    Due to failing to pass one last unit which was only delivered in the second semester, I requested Centrelink to [cancel] my Austudy in February 2012 without applying for any other Centrelink payment. I finished my study in 2013 and graduated with the [redacted] degree…

    I should have been qualified to receive a Student Start-up Scholarship, because I was receiving Austudy and attending the .. course as a full time student … continuously from year 2009 to 2012.

    …

    These payments should have been delivered by Centrelink at the begining [sic] of each semester from 2010 and 2012, but I do not find any related document from Centrelink, and I do not find any related transaction record in my available bank statements. Would Centrelink check if the payments have been made at all? If not, please make the payment as soon as possible.

27. The Secretary contends that Ms Xin is not eligible for SSS as she failed to respond or comply with correspondence sent to her by the Agency on 30 March 2010 (‘the March 2010 letter’). The March 2010 letter outlined the requirements in order for a recipient to receive SSS and stated in part: 

    Changes to scholarship assistance for higher education students

    We are writing to you about changes to scholarship assistance available for eligible students undertaking higher education. The following changes will take effect from 01~` April~` 2010:

    …

    What you need to do

    You must advise us by 13~`April~` 2010 whether or not you are currently receiving one of the following scholarships, and the date the scholarship commenced:

    Commonwealth Education Costs Scholarship; or Commonwealth Accommodation

    Scholarship; or Indigenous Access Scholarship. Even if you do not receive one of the scholarships listed above, we need you to advise us so that we can decide if you will be entitled to receive any additional assistance.

    If you previously received a Commonwealth Accommodation Scholarship and it has stopped, you need to advise us of both the start and end date of that scholarship. How to contact Centrelink You can provide your scholarship details or notify us that you are not receiving one of the above scholarships by using Centrelink Online Services, calling 13 2490* or visiting a Centrelink Customer Service Centre.

28. Subsection 68(2) of the Administration Act provides that the Secretary may give a notice to a person in receipt of a social security payment requiring the person to provide information or give the Agency documents. Section 72 of the Administration Act explains that a notice under section 68 must specify a period in which, or a date by which, the person has to tell the Agency about events or changes in circumstances. The March 2010 letter required that Ms Xin provide information about whether she was receiving a scholarship and if so the date of commencement, by 13 April 2010. 

29. For her part Ms Xin claims not to have received the March 2010 letter. Had she done so, she maintains she would have taken the appropriate steps to ensure she received SSS, including complying with the request for information. She contends that the March 2010 letter may have been sent to an old address or one where she was unable to access her mail. However she argues that it is ‘irrational’ for the Agency to send her a letter asking that she confirm she was in receipt of a scholarship as she contends that the Agency already had access to that information. 

30. In cross-examination Ms Xin told the Tribunal she did not have evidence that the Agency was aware that she was undertaking an approved scholarship course, but contends that the Agency should have known as she was receiving Austudy at the time.

31. The Secretary submits that the Agency needed to be satisfied about a person’s eligibility for SSS and as Ms Xin did not provide the information requested in the March 2010 letter, the Agency could not be satisfied that Ms Xin was still studying an eligible course at that time or that she otherwise satisfied the eligibility criteria. 

32. Further, the March 2010 letter requested Ms Xin advise the Agency if she was receiving any one of a number of Commonwealth Education Costs Scholarships. The letter clearly set out Ms Xin’s obligations in order for the Agency to assess her eligibility for payment of SSS. 

33. Paragraph 68(2)(b) of the Administration Act provides that the Agency may request ‘one or more statements about a matter that might affect the payment’ of a social security payment. It is not in dispute that Ms Xin did not provide the information requested of her in the March 2010 letter. Whilst Ms Xin claims not to have received the 30 March 2010 correspondence, section 29 of the Acts Interpretation Act 1901 (Cth) deems the correspondence received.

34. As she did not respond to the 30 March 2010 letter, the Agency did not have the information required to determine if Ms Xin satisfied the criteria to be eligible for SSS and was deemed not to have made a claim for SSS. In other words, as she did not make a claim for SSS, Ms Xin was not paid SSS.

    CONCLUSION

35. I am satisfied that Ms Xin is not entitled to back payment of CP, CA or SSS. In the case of CA and CP, she was not a vulnerable person and consequently the deeming provisions in subdivision B section 12 of the Administration Act, do not apply.

36. To be eligible for SSS the general rule set out in the Administration Act requires Ms Xin to have made a claim for SSS. I find that in not providing the information requested in the March 2010 letter, Ms Xin failed to comply with a notice provided under section 68(2) of the Administration Act. As she did provide the information required by the Agency, I am satisfied a claim for SSS was not made. In the absence of a claim being lodged, arrears of SSS cannot be paid.

    DECISION

37. For the reasons stated above the decisions under review will be affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

................................[SGD]........................................

Associate

Dated: 20 October 2021

Date(s) of hearing:	26 July 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Dr S Thompson, Sparke Helmore Lawyers