Young and Secretary, Department of Employment (Social services second review)

[2015] AATA 528

Young and Secretary, Department of Employment (Social services second review) [2015] AATA 528 (21 July 2015)

Division	GENERAL DIVISION
File Number	2015/1389
Re	Alex Young
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	21 July 2015
Place	Adelaide

The decision under review is affirmed.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Backdating of start date – Applicant contends Centrelink failed to advise of potential entitlement to Newstart at an earlier date – Centrelink not obliged to provide specific advice – No legal basis upon which applicant can be paid Newstart from any earlier date – Decision under review affirmed.

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999, ss 8, 11,13,16 and Schedule 2

CASES

Re Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451

REASONS FOR DECISION

Deputy President K Bean

21 July 2015

1. The applicant, Mr Young, lodged a claim for newstart allowance (NSA) on 22 January 2014, following contact with Centrelink on 13 January 2014. On that date, he says that he was advised to lodge a claim for NSA, although he had not been so advised during earlier contacts with Centrelink in 2013, notwithstanding that he is likely to have been eligible for NSA at various times during 2013.

2. Following his claim on 22 January 2014, Mr Young was granted NSA from 13 January 2014, being the date on which he had contact with Centrelink in relation to the claim. However, Mr Young contends that he should be paid NSA from an earlier date.

3. After the primary decision to grant NSA from 13 January 2014 was affirmed by an Authorised Review Officer (ARO), and by the Social Security Appeals Tribunal (SSAT) on 19 February 2015, Mr Young applied for review of that decision by this Tribunal on 25 March 2015, giving rise to these proceedings.

   LEGISLATION AND ISSUES

4. In circumstances where a person is found eligible for a social security payment, the date from which they are entitled to be paid is governed by the terms of the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

5. The provisions which are relevant here include ss 11, 13 and 16 and Schedule 2 of the Administration Act.

6. Taken together, ss 11 and 16 require that, in order to be paid a pension or benefit, a person must first lodge a claim in writing.

7. Section 13 also relevantly provides as follows:

   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.

   …

8. Clause 3 of Part 2 of Schedule 2 provides that, in the ordinary course, the start day of a person’s entitlement will be the day on which the claim is made. Schedule 2 also provides for certain circumstances in which a person may be paid an entitlement from an earlier date than their date of claim. However, none of the circumstances outlined in Schedule 2 apply here.

9. Accordingly, the issue for my determination is whether, having regard to the applicable provisions, there is any legal basis upon which Mr Young can be paid NSA from a date earlier than 13 January 2014.

   CONSIDERATION

10. The essential facts which are relevant to my determination of that question are not in dispute. It is agreed that Mr Young was first advised that he should lodge a claim for NSA in mid-January 2014 and that he subsequently lodged a claim on 22 January 2014. I note that Mr Young now contends that the relevant date of contact was 15 rather than 13 January, however in light of the contemporaneous records[1], I am satisfied that Mr Young did make contact with Centrelink on 13 January 2014, and that the possibility of lodging a claim for NSA was discussed with him on that day.

    [1]     Exhibit 1, T10/44.

11. The Secretary also does not dispute that Mr Young had earlier contacts with Centrelink during 2013, during which he made inquiries about a low income health care card. For the purposes of this application, the Secretary further does not dispute that, if he had made a claim earlier, it is possible Mr Young may have had some entitlement to NSA during 2013 (although the Secretary does not concede that he would have had any entitlement).

12. The fundamental question, however, is whether, even accepting that Mr Young had a potential entitlement to NSA during 2013, and that he had contacts with Centrelink during 2013 during which that potential entitlement was not brought to his attention, any of those facts provide a basis upon which he can be paid NSA from an earlier date. As I have already indicated, payment of NSA is governed by the relevant Acts and the Tribunal has no authority to award NSA from an earlier date unless this is expressly authorised by one of the relevant Acts.

13. Mr Young relies in particular upon the terms of s 8 of the Administration Act, which provides as follows:

    8  Principles of administration

    In administering the social security law, the Secretary is to have regard to:

    (a)the desirability of achieving the following results:

    (i)the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;

    (ii)the ready availability of publications containing clear statements about income support entitlements and procedural requirements;

    (iii)the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;

    (iv)the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;

    (v)the establishment of procedures to ensure that abuses of the social security system are minimised; and

    (b)the special needs of disadvantaged groups in the community; and

    (c)the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and

    (d)the importance of the system of review of decisions under the social security law; and

    (e)the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and

    (f)the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.

14. However, I am unable to discern anything in that section which contradicts or overrides the more specific provisions of the Administration Act which require a person to make a written claim for a payment and which provide for the limited circumstances in which a person may be paid from a date earlier than their date of claim. Nor am I aware of any other provision of the Act or the Administration Act which places a positive obligation on Centrelink to correctly advise members of the community as to their specific social security entitlements, or which provides for any consequences to follow from a failure to do so. In particular, I am unaware of any provision in the social security law which allows for an entitlement to be paid from the date on which a person could or should have been advised of their potential eligibility for such a payment.

15. In this regard, I respectfully agree with the observations of Member Wulf in Re Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451, at [21]:

    It is apparent that the provisions in s 8 of the Administration Act only require Centrelink to provide general advice and information to the public about the availability of income support and social security payments. Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment and moreover, is not required to advise a client that they must fill in any additional forms.

16. I understand that in certain circumstances, compensation is paid by the Commonwealth for defective administration.[2] However the relevant scheme is administered in this case by the Department of Human Services, and the Tribunal has no jurisdiction with respect to the scheme.

    [2]     Department of Finance, The Scheme for Compensation for Detriment caused by Defective Administration, viewed on 21 July 2015 >

    Given he made contact with Centrelink on 13 January 2014, in the course of which his entitlement to NSA was discussed, and made a claim on 22 January 2014, I am satisfied that, consistently with the conclusions of the SSAT and earlier decision makers, Mr Young is entitled to the benefit of subs 13(1) of the Administration Act, such that he may be paid NSA from 13 January 2014 rather than from his date of claim. However, I do not consider that there is any other provision of the social security law which allows for him to be paid NSA from any earlier date.

17. I have no reason not to accept Mr Young’s central point, being that there were opportunities during 2013 when his potential entitlement to NSA could have been drawn to his attention, and the fact that this did not occur has effectively deprived him of any entitlement he may have had to be paid NSA during 2013. However, for the reasons I have explained, whilst it is unfortunate that Mr Young did not make an earlier claim for NSA, the fact that his potential entitlement to NSA was apparently not drawn to his attention by Centrelink does not provide a legal basis for him to be paid NSA from an earlier date, as this is not one of the circumstances in which the legislation allows for backdating of a person’s start day.

18. It follows that in the absence of any legal basis upon which Mr Young can be paid NSA from any date earlier than 13 January 2014, I am obliged to affirm the decision under review.

    DECISION

19. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated 21 July 2015

Date of hearing	8 July 2015
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services Program Litigation and Review Branch