ZQGW and Secretary Department of Employment and Workplace Relations

[2007] AATA 1813

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1813

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2734

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZQGW

Applicant

And SECRETARY DEPARTMENT OF EMPOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date12 September 2007

PlaceBrisbane

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – claim for arrears of youth allowance – whether start date for claim was 13 December 2005 or 19 January 2006 – no record of any contact made, formal or informal, before 19 January 2006 – decision under review affirmed

Social Security Administration Act (1999) – ss11, 12, 13(2), (3), (3A), 15, 16, Schedule 2 Clause 3,

Social Security Act 1991

WRITTEN REASONS FOR DECISION

12 September 2007   M J Carstairs, Senior Member

1.The applicant’s mother, who represented the applicant at the hearing, seeks the payment of some six weeks arrears of youth allowance which she says her son was entitled to after he turned 16 in December 2005.  On 26 April 2006 her son’s claim for youth allowance was paid by Centrelink, with effect from 19 January 2006. 

2.On 10 May 2006, the applicant’s mother requested that the youth allowance be backdated to his 16^th birthday.  That request was declined on 22 June 2006 and again on 16 August 2006, and on review by the Social Security Appeals Tribunal on 30 April 2007.

3.At the hearing I gave oral reasons for affirming the decision under review.  The applicant’s mother requested written reasons for my decision. These reasons now answer that request.

4.The applicant's mother said that she tried to lodge an earlier claim for youth allowance, and believes she made inquiries of the respondent about the time that her son turned 16, this being around December 2005.  Her case is that he was entitled to be paid from the time he turned 16 on 13 December 2005, and that arrears for youth allowance from the period 13 December 2005 to 18 January 2006 can be paid.

5.The respondent acknowledges that the applicant's mother did make inquiries.  However, the respondent contends that something more was needed, either by her on the applicant’s behalf or by the applicant.  It was not until 19 January 2006 that the applicant’s mother made clear her intention to lodge a claim for youth allowance for her son.  This enabled Centrelink to backdate the payment on the claim - although it was not in fact lodged until March 2006 - to 19 January 2006 but no earlier.

CAN THE CLAIM BE BACK-DATED ANY EARLIER THAN 19 JANUARY 2006?

6.The date that a claim comes into effect and from which it can be paid is set according to the provisions of the Social Security Administration Act (1999) (the Administration Act).  Section 11 of the Administration Act sets out that there is a general rule that a person will only be paid if they have lodged a claim:

Section 11:  General rule

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

(a)       a social security payment; or

(b)       a concession card;

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

7.A claim must be in writing, usually on an approved form, and lodged at an approved place[1].

[1] s16 of the Administration Act

8.A consequence of these requirements is that although a person might be qualified for a payment, they cannot be paid without a claim being lodged.

9.This strict rule is ameliorated by certain other provisions in the Administration Act.  These provisions include:

§  provisions that allow for transfers between payment types – for example, those types provided for in s 12 of the Administration Act.  I should observe that this section cannot be invoked in the circumstances here because the son’s previous payment type was a family payment (family tax benefit) which does not come within the scope of an income support payment as is referred to in s 12.

§  provisions that allow back-payments to a person’s first contact with Centrelink, even though the formal requirements of the claim are only satisfied later – for example, s 13 of the Administration Act.  Thus in circumstances where a person has indicated an intention to claim and is qualified for a social security payment and Centrelink acknowledges, in writing, that the Department has been contacted in relation to making a claim there are certain discretionary provisions in s 13(2), (3) and (3A) of the Administration Act that could be relied upon to backdate to the first contact date.  One of these subsections may have been relied upon to backdate in the applicant’s case, despite the formal claim not being lodged until late March 2006. .

§  provisions that allow for an incorrect claim to serve as the claim for the correct payment – for example, s 15 of the Administration Act.  This section provides that if a claim is made incorrectly and the person subsequently makes a claim for a social security payment for which the person is qualified, then the person is taken to have made the claim on the day that the incorrect claim was lodged.  Those provisions do not seem to apply here because there was no incorrect claim lodged by the applicant, or the applicant’s mother.  I observe that there was a reference made in one of the respondent’s computer records stating date of claim = 19 JAN 2006 – due to previous d s p claim rejected[2]; however, no such claim form could be located and it seems that there was no record of any such decision being made. .

[2]        T19

10.The provisions for working out the start date for claims are found in Schedule 2 of the Administration Act.  The general rule is that the start date is the day on which the claim was made. Clause 3(1) of Schedule 2 of the Administration Act provides that 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.

An earlier contact with the respondent indicating the prospect of a future claim being made is not sufficient except in the circumstances outlined in s.13 of the Administration Act.

WHAT HAPPENED WITH THE CLAIM FOR YOUTH ALLOWANCE?

11.The applicant turned 16 on 13 December 2005, however his mother had started making enquiries, including one in writing[3] (received at Centrelink on 1 November 2005) about future payments.  In the letter she asked to be supplied with a disability support pension claim form and a youth allowance claim form.  It appears from a Centrelink letter dated 3 November 2005 that these claim forms were sent to her[4].

[3]        T5.

[4]         T7

12.The next record of a contact was on 19 January 2006 when Centrelink wrote to the applicant[5], acknowledging his intention to claim a payment and reminding him to lodge his completed claim form by 2 February 2006.  As already noted, the claim ultimately lodged was for youth allowance was received by Centrelink on 29 March 2006[6].

[5]        T9

[6]         T16

13.The date of receipt of the claim of 29 March 2006 is considerably later than the date of 2 February 2006 nominated in the letter written by Centrelink to the applicant on 19 January 2006.  As mentioned in paragraph 9 above, s 13(2) (3) and (3A) of the Administration Act extend the discretion further. The date of 2 February 2006 would have been 14 days from the date of the informal contact indicating the applicant’s intention to claim, but the date of 29 March 2006 was within 13 weeks of the informal contact.  As such, it appears that Centrelink decided that as the applicant was otherwise qualified at the earlier time, he should be paid from then. 

14.Section 15 of the Administration Act might have been applied, because of the computer reference to the determined and rejected disability support pension claim.  The authorised review officer did not spell out what section of the Administration Act she used to backdate the payments of youth allowance to 19 January 2006.

15.I note the decision of the Social Security Appeals Tribunal of 10 May 2007 expressed some puzzlement about the basis of backdating the payment of youth allowance to 19 January 2006.  I confess that I do also.  However I agree that the Centrelink decision should not be overturned simply because its basis is unclear, especially where there is some, albeit limited, evidence about an earlier claim.

16.The applicant’s mother has indicated that she made contact with Centrelink before 13 December 2005 in relation to her son turning 16.  However, the Centrelink telephone records do not show any relevant contact from her that might suggest an informal claim for youth allowance on behalf of her son.  Furthermore, a telephone conversation between the applicant’s mother and a Centrelink officer on 2 November 2005 was recorded as follows[7]:

Customer advised that [the applicant] has not claimed youth allowance…Cust advised [the applicant] does not receive and will not claim any other pension or allowance from Centrelink.

[7]        T6

17.I accept that as a true record of what was discussed in that telephone conversation.  I formed the impression from the documents and from the applicant’s mother’s oral evidence that she has, at best, a hazy recollection of the sequence of events, and of what happened in relation to making claims with Centrelink.  She explained that there was other litigation going on with respect to her son and it seems that it was a very difficult time for them.  

18.I agree with the respondent’s submission that there is no evidence of any claim, formal or informal, made by the applicant or the applicant’s mother on his behalf any earlier than 19 January 2006.  For that reason, the respondent contends that it would be not be possible to pay arrears before that date.  

19.The applicant’s mother’s evidence was somewhat contradictory.  What she said at document T22 was rather different from what she later said at document T30, where she referred to being misled by the Centrelink letter on 3 November 2005, stating that she did not need to lodge the claim within 14 days.  However, the respondent has given the applicant the benefit of the doubt and has used the informal contact date of 19 January 2006 to set the most favourable start date possible – even though no claim for youth allowance was received until 29 March 2006.  Ordinarily, the general rule would be applied and the applicant would be paid only from 29 March 2006. 

20.I agree with the Social Security Appeals Tribunal in their decision of 30 April 2007 that there is no reason to change the more favourable outcome setting the date of effect at the time the applicant’s mother contacted Centrelink on 19 January 2006. Accordingly, I would affirm the decision under review.

DECISION

21.The Tribunal affirms the decision under review. 

I certify that the preceding 21 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         
Eleanor O’Gorman, Associate

Date of Hearing  12 September 2007
Date of Decision  12 September 2007
For the Applicant  Applicant’s Mother
For the Respondent                  Departmental Advocate