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

Zareba and Secretary, Department of Social Services (Social services second review) [2021] AATA 1625 (7 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6185
Re:Barbara Zareba
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:7 June 2021
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
AGE PENSION – applicant seeking age pension to be paid prior to date of claim – applicant contends that they were a vulnerable person and their application should be taken to have been received when first contact was made with Centrelink – applicant also contends that confusions regarding paper and online applications led them to believe that a joint application was made when the applicant’s partner lodged his own age pension application – provisions of the Social Security (Administration) Act 1999 (Cth) considered – provisions of the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) considered – decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
7 June 2021
INTRODUCTION

On 19 May 2020, Barbara Zareba (“Mrs Zareba” or “the Applicant”) applied for and was granted Age Pension (“AP”). On 30 April 2020, the Applicant’s husband submitted his own claim for AP with effect from 16 April 2020, which he understood was an application for both he and Mrs Zareba. However, it transpired that his application was only for himself.
Mrs Zareba believes she should be paid AP from at least 16 April 2020, the date at which her husband thought he was making an application on her behalf. The Secretary of the Department of Social Services (“the Secretary”) contends that the Applicant should not be paid AP prior to the date of lodgement, being 19 May 2020.
HEARING
The matter was heard on 7 April 2021. Mrs Zareba was represented by her husband, Mr Zareba.
BACKGROUND
Eligibility for AP coincides with COVID-19 pandemic
In early 2020, Mr Zareba was over 70 years old and past the age at which he would be entitled to age pension, but he continued to work. When the COVID-19 pandemic emerged, Mr Zareba’s employer identified him as a “vulnerable person” and placed him on “special leave” for one week prior to his retirement on 27 March 2020.
Following his retirement Mr and Mrs Zareba became eligible for AP. Mr Zareba told the Tribunal that ideally he and Mrs Zareba would have attended a Centrelink service centre to lodge their AP claim on 28 March 2020, but due to the circumstances at that time they were unable to do so. Specifically, the COVID-19 pandemic was beginning and in response NSW residents were ordered into “lockdown”. Residents were prevented from leaving their homes except for essential reasons. The rapid contraction in economic activity also meant that tens of thousands of additional people required assistance from Centrelink.
In response Centrelink had advised people to avoid attending Centrelink service centres wherever possible. Quoting news sources, Mr Zareba reminded the Tribunal of the circumstances at that time. He told the Tribunal:
[Prime Minister] Mr Morrison said Australia was facing immense economic strain as it worked to flatten the curve. Across Australia today, many thousands of Australians will lose their jobs, he said, they are lining up at Centrelink offices as we speak. Something unimaginable on this scale only a week ago. They have lost their jobs and we know many more will. Mr Morrison said this was the biggest economic shock our nations has faced in generations.
I brought this to your attention because that was exactly the time when we tried to apply for our age pension…
Mr Zareba also reminded the Tribunal that at that time there were exceptionally long queues of people at Centrelink offices and high demand had caused online services to experience problems. He recalled that “Centrelink… urged people not to come into [Centrelink] centres unless there was a critical need to be there.”
In addition to the advice to avoid visiting Centrelink service centres, Mrs Zareba contends that both she and Mr Zareba were required to self-isolate.
Online application
Because of the circumstances outlined above, Mr and Mrs Zareba decided to apply for AP online. To do so, both were required to set up a myGov account, which at that time neither had. On 1 April 2020 they registered for myGov accounts, which Mr Zareba contends took him multiple phone calls and many hours of waiting. Having registered with myGov, he began his online AP application.
He told the Tribunal:
That’s why I’ve sent the attachments from the website. So, we registered ourselves with MyGov, on 1 April, and this day is the day is recorded by Centrelink as the first day of our claim contact - first of April. It took us four days, and numerous telephone attempts, to achieve it. We spent hours being on hold. Unfortunately, the combined option was not there on the Centrelink website menu. Moreover, there was no indication the form we were filling was for individual. But, for individual or a couple? With this choice missing, I concluded that similarly to printed version of the application form, it would be decided later when answering the question 2.2 as similar to the printed version of the questionnaire. I was right, but when the printed form second question asked … if one uses the same form for a couple of individual, the online approach was different. It asked “has your partner applied or is receiving the aged pension?”. So, logically answering “no”, in my opinion, would imply the form to be for the combined application. And, yes, my wife is receiving for the individual application. So my answer was simply “no”.
When completing the application Mr Zareba found that there was no indication if it was for an individual or a couple. However, he reviewed the downloadable application form and concluded that in light of the questions asked, and the options provided on the printed proforma, it was reasonable to conclude that the online application was for both he and Mrs Zareba.
However, it transpired that he had only applied for AP for himself, not Mrs Zareba. Consequently, Mr Zareba was granted AP from 16 April 2020, but Ms Zareba was not.
Mrs Zareba made her own claim on 19 May 2020, and was granted AP from that date on 27 May 2020.
CONTENTIONS
During Mrs Zareba’s review with the Social Services & Child Support Division of the Tribunal (“AAT1”), Mrs Zareba argued that she should be paid AP from 30 April 2020, the same date as Mr Zareba. She contended that the earlier date is appropriate because she understood that she had submitted the claim with that of Mr Zareba, which was in part attributed to a confusing online claim process.
Mrs Zareba now further contends that as both she and Mr Zareba were required to self-isolate in March 2020 they were unable to attend Centrelink offices in person. Consequently, she should be deemed to have made the application for AP the day Mr Zareba contacted the Department and applied for his pension by way of the deemed claim provision in the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
The Secretary contends that Mrs Zareba is not entitled to payment of AP prior to 19 May 2020 on account of not having made a claim for payment until that date. Further, as Mrs Zareba was able to lodge an online claim on 19 May 2020, it is not reasonably practicable to argue that she was unable to lodge her claim earlier.
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
(a)Whether age pension is payable from a date prior to 19 May 2020;
(b)Whether the Applicant is a vulnerable person; and if so
(c)Whether any back payment can be made.
RELEVANT LEGISLATION
The relevant legislation is contained in the Social Security (Administration) Act 1999 (“the Administration Act”) and the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (“the Determination”).
Subsection 11(1) of the Administration Act sets out the general rule that a person must make a claim for payment in order for a payment to be granted. Section 16 sets out how to make a claim for a social security payment:
(1)       A person makes a claim for a social security payment or a concession card:
(a)       by lodging a written claim for the payment or card; or
(b)       by making the claim in accordance with subsection (7).
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 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.
Section 13 of the Administration Act states that a claim can be taken to have been made on the day a person contacts the Department about a claim for a social security payment if the person is qualified for the payment on the day, and is in a “class of persons” specified in the Determination.
Item 5 of the Determination sets out the class of person to whom section 13 of the Administration Act applies:
5 Class of persons to whom sections 13 and 14 of the Act apply
For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) and 14(1)(aa), (2)(aa), (3)(aa) and (3A)(aa) of the Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:
a)subject to domestic or family violence;
b)homeless;
c)hospitalised or suffering from a temporary incapacity arising from a medical condition;
d)released from prison or psychiatric confinement;
e)experiencing high stress associated with a relationship separation;
f)a parent of a dependent child born during the relevant period;
g)affected by the death during the relevant period of an immediate family member;
h)a person who entered Australia during the relevant period as a humanitarian entrant to Australia;
i)a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;
j)a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or
k)subject to other special circumstances beyond the person’s control.

CONSIDERATION
Is age pension payable prior to 19 May 2020?

Mrs Zareba lodged her claim for AP on 19 May 2020. She argues that she should be paid from 16 April 2020, the date from which her husband was paid AP as she understood he was lodging a combined claim on her behalf.
Section 13 of the Administration Act allows for a claim to be taken to have been made on the day a person contacts if the person is qualified for the payment on the day and is in a “class of persons” specified in the Determination. The Secretary submits that Mrs Zareba does not meet the criteria for two reasons.
Firstly, Mrs Zareba did not make a claim nor did she or Mr Zareba contact the Department about a claim on an earlier date such that the deeming provision in section 13 of the Administration Act is potentially enlivened. Second, as she was able to successfully lodge a claim online on 19 May 2020, it is not reasonably practicable for her to sustain the argument that she was unable to do so earlier.
Mrs Zareba contends that as a 70 year old she was a vulnerable person in the context of the COVID-19 pandemic and was required to stay home and self-isolate. Mrs Zareba additionally submits that she was required to self-isolate for a period and has provided results of a COVID-19 test processed on 17 March 2020 to demonstrate she was required to stay at home at the time. Also in evidence is a report from Dr Allan Mak who states that Mr Zareba is and was suffering from Diabetes Mellitus in November 2019.
I accept that whilst awaiting her test results Mrs Zareba was not able to attend a Centrelink service centre to process her AP application. I also accept that in making his own claim Mr Zareba thought that he was also claiming on behalf of Mrs Zareba.
However, the deeming provision in section 13 of the Administration Act requires that a person contacts the Department about a claim for a social security payment. In this case Mr Zareba understood he was making a claim for Mrs Zareba, but he did not do so. As there is no indication that Mrs Zareba made contact with the Department prior to 19 May 2020, the deeming provision in section 13 of the Administration Act is not enlivened.
Should it be accepted that Mr Zareba had made contact with the Department regarding Mrs Zareba’s application, for the deeming provision to apply Mrs Zareba would need to satisfy the criteria of a vulnerable person under the Determination. I accept that Mrs Zareba was required to self-isolate up until she received her COVID-19 test results. However, in order to be in a class of person covered by the Determination Ms Zareba was required to have been unable to lodge a claim on the contact day. Whilst acknowledging the delays and other factors which were present on account of COVID-19, I am not satisfied that she was unable to lodge a claim online on 30 April 2020 when her husband was able to do so and she was able to do so successfully on 19 May 2020.
The Age Pension application form
Mr Zareba clearly understood he was making an application for Mrs Zareba at the time of his own claim for AP. The downloadable application form for AP and Pension Bonus (SA002) states on the first page:
Allowing your partner to enquire on your behalf, may save you time when dealing with us. It will let you and your partner use more self-service functions online and over the phone.
On the second page, under the heading “How to claim” is written:
If you have a partner and you are both claiming Age Pension, you may choose to complete one claim pack together or complete a separate claim pack for each person.
The very first question is “Do you have a partner?” followed by “Is your partner also claiming Age Pension” and question 3 prompts the applicant to “Indicate if your partner is using the this form or a separate form for a claim or to provide their details.”
When an applicant applies online, however, they are required to answer the same question about having a partner, but they are not provided the option to claim together.
The resulting applicant experience was described by the AAT1:
[Mr Zareba] completed what he understood to be the combined online claim and submitted it on 30 April 2020. There was no indication if the online claim was combined or not, he was not given a choice in the menu for an individual or combined claim. There was only one choice which he followed. The questions he answered gave details for both him and his wife. It reinforced his belief that he was claiming for both. The second point on the online claim for asked “if your partner has applied for or is receiving an age pension”, he answered in the negative.
CONCLUSION
It is reasonable to conclude that had Mrs Zareba submitted her application for AP at a Centrelink service centre, as was her preference, she would have been paid AP closer to the time at which she became eligible. For understandable reasons she did not do so. However, for the reasons outlined above it is not possible for the Tribunal to deem a claim as having been made earlier and consequently the decision under review will be affirmed.
Finally, Mr Zareba’s experience demonstrates that the online application process for AP can be confusing for applicants. Whilst there may well be good reason to omit the option to include a partner for online applicants, it is hoped that the Secretary will review the process and make it clearer for future applicants that they are not, in fact, making a combined application.
DECISION
For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

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Associate
Dated: 7 June 2021

Date of hearing: 7 April 2021

Date Final Submission Received:

Advocate for the Applicant:

1 June 2021

Mr J Zareba

Solicitor for the Respondent:

Ms B Erak, Services Australia

[2021] AATA 1625

7 June 2021

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