Yan Lok Leung and Secretary, Department of Social Services

[2014] AATA 346

[2014] AATA  346

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4911
Re	Yan Lok Leung
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr T Nicoletti, Senior Member
Date	3 June 2014
Place	Sydney

The decision under review is affirmed.

............[sgd]............................................................

Dr T Nicoletti, Senior Member

CATCHWORDS

SOCIAL SECURITY - Application for Youth Allowance - Date of claim - Special circumstances – Approved course of study - Commencement date of benefits – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth), ss 11, 13, 41, 42, Sch 2 cl 3

REASONS FOR DECISION

Dr T Nicoletti, Senior Member

BACKGROUND

1. The Applicant, Mr Yan Lok Leung, is approximately 20 years old. He is currently studying a Bachelor of Arts/Bachelor of Science at the University of Western Sydney. He commenced his studies in February 2012.

2. On 14 and 17 December 2012, the Applicant’s father, Mr Lawrence Leung, contacted Centrelink on the Applicant’s behalf regarding a claim for Youth Allowance.

3. On 17 December 2012, Centrelink sent the Applicant a Claim for Youth Allowance form (Claim form) and notice advising him that if he returned his Claim form no later than 31 December 2012, he would be able to receive payment from the date of his enquiry (17 December 2012). The Claim form and notice were mailed to the Applicant’s recorded address.

4. The Applicant’s father gave evidence that he did not receive the Claim form and notice until 3 January 2013.

5. On 20 February 2013, the Applicant’s father lodged an authority to be the Applicant’s correspondence nominee with Centrelink, as well as a Claim form on the Applicant’s behalf. The Applicant’s father also lodged a written statement requesting that the Applicant’s Youth Allowance be paid from the date the Applicant’s mother’s Family Tax Benefit was cancelled, as opposed to 17 December 2012.

6. Centrelink made a decision to pay the Applicant Youth Allowance from 20 February 2013, which was affirmed by an Authorised Review Officer on 21 March 2013 and by the Social Security Appeals Tribunal (SSAT) on 21 August 2013. The Applicant has requested that the Tribunal review the decision of the SSAT.

   LEGISLATION

7. Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person who wants to be granted a social security payment must make a claim to be eligible for that payment. Section 16 sets out how to make a claim, including by lodging a written claim.

8. Pursuant to section 41 of the Administration Act, unless another provision of social security law provides otherwise, a social security payment becomes payable on the person’s start date. Section 42 states that the start date is calculated in accordance with clause 3(1) of Schedule 2 to the Administration Act. Clause 3(1) provides as follows:

   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.

9. Section 13(1) of the Administration Act provides that if a person contacts Centrelink in relation to making a claim, they are taken to have made a claim on the day of contact if:

   (a)the person qualified for payment on the day of contact;

   (b)the person is sent written notice acknowledging the contact; and

   (c)the person lodges their claim within 14 days of the date of contact.

10. There are limited exceptions to this rule where the person or their partner suffers from a medical condition that had a significant adverse effect on their ability to lodge a claim earlier (s 13(2) and 13(3) of the Administration Act).

11. Section 13(3A) of the Administration Act provides that a claim can be backdated up to 13 weeks after a claimant contacts Centrelink in ‘special circumstances’ as follows:

    (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.

    EVIDENCE

12. The Applicant’s father gave oral evidence that he did not receive the Claim form and notice from Centrelink, dated 17 December 2012, until 3 January 2013.

13. He said that on 4 January 2013 he attended Centrelink’s Ryde office in person to request an extension to the deadline to lodge the Claim form because the deadline of 31 December 2012 had already passed.  He claimed that he was told by a counter officer that the Ryde office did not handle Youth Allowance and that he would need to call the Youth Allowance hotline. His evidence was that he attempted to call the hotline that same day from the Ryde Centrelink office, and then made several other unsuccessful attempts to call this number on the days following.

14. The Applicant claimed that he received a first round university offer of study sometime in January 2013.  He said that he did not accept that offer because he wanted to wait until the second round offers, in case he received a better offer of study from another University. 

15. The Applicant’s father stated that he completed the Applicant’s Claim form and lodged it with Centrelink on 20 February 2013, when the second round university offers were received.

16. The evidence submitted by the Respondent indicated that second round university offers were received by prospective students on 6 February 2013, two weeks prior to the date that the Applicant’s Claim form was lodged.

    CONSIDERATION

17. To be eligible for a claim for Youth Allowance, the Applicant must be enrolled in an approved course of study.  When the Applicant’s father contacted Centrelink on 17 December 2012, the Applicant had not yet received a confirmed offer of university study.  Accordingly, notwithstanding the initial contact the Applicant’s father had made with Centrelink on 17 December 2012, the Applicant was ineligible for Youth Allowance at that time.

18. Although Centrelink sent the Applicant a Claim form and notice on 17 December 2012 with a deadline for lodgement of 31 December 2012, the Applicant still did not have an approved course of study by the deadline.  He was therefore still ineligible to apply for Youth Allowance at that time.

19. The Applicant’s father stated that the Claim form and notice were received on 3 January 2013 and he attended the Ryde Centrelink office on 4 January 2013 to seek an extension in which to lodge the Claim form.  However, when he was questioned as to why the Claim form was not lodged with Centrelink on that day, the Applicant’s father stated that the Applicant “didn’t have the information at that moment because he had to wait [for] second round of uni offering so….some of the information we just cannot complete”.

20. The Applicant’s father admitted, therefore, that the Applicant’s Claim form could not have been validly lodged on 4 January 2013 because the Applicant was still waiting at that time for second round university offers to be received.

21. Notably, the Applicant did not lodge a Claim form following receipt of the first round offer, which he said he received some time in January 2013, in the hope that he would receive a better second round offer.

22. The Applicant stated that he received a second round offer of study from the University of Western Sydney for a Bachelor of Science/Bachelor of Arts degree.  The Respondent submitted evidence that the second round offers were received by prospective students on 6 February 2013.

23. On that basis, the first time the Applicant would have been in a position to lodge a valid Claim form, based on his acceptance of an approved of study, would have been on 6 February 2013, when the second round university offers were received. 

24. Following receipt of the second round offer, the Applicant lodged a Claim form on 20 February 2013, which was two weeks after the offer had been received.  No reason was given by the Applicant or the Applicant’s father for the two week delay in lodging the Claim form.

25. Given that the Applicant did not lodge his Claim form until 2 weeks after he was eligible for Youth Allowance and could not provide a reason for the delay in lodgement, I am satisfied that there were no special circumstances that would warrant a decision that the Applicant is eligible to receive Youth Allowance from a date earlier than the date upon which the Claim form was lodged.

26. The Applicant was therefore eligible for Youth Allowance from 20 February 2013, the date when his Claim form was lodged.

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr T Nicoletti, Senior Member.

.......[Sgd].................................................................

Associate

Dated 3 June 2014

Date of hearing	26 February 2014
Advocate for the Applicant	Mr L Leung
Representative for the Respondent	Ms G Heggen, Department of Human Services