Redpath and Department of Family and Community Services [2000] AATA 689 (11 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0442

GENERAL ADMINISTRATIVE DIVISION )

Re LUKE REDPATH

Applicant

And DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 11 August 2000

Place Melbourne

Decision The decision under review is affirmed.

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

Senior Member

SOCIAL SERVICES: Newstart Allowance; Applicant telephoned Centrelink Call Centre; made enquiry; whether this constituted a "claim"; decision affirmed.

Administrative Appeals Tribunal Act 1975 s37

Social Security Act 1991 s615(1), 615(2), 615A

Re Drayton v Martin 1996 137 ALR 145

Re Walton v National Employers' Mutual General Insurance Association Limited 1973 2 NSWLR 73

Re St Paul Fire and Marine Insurance Co. and Guardian Insurance Co. of Canada 1984 1DLR 342

REASONS FOR DECISION

11 August 2000 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal (SSAT) of 20 March 2000, which affirmed a decision previously made by an officer of Centrelink. The decision then made was to pay New Start Allowance to Mr Redpath from 21 January 2000 and not earlier.

2. The hearing of the application was conducted on 3 August 2000. Mr Redpath appeared without representation and by telephone. The respondent was represented by Ms Bradley.

3. The respondent had filed a number of documents pursuant to s37 of the Administrative Appeals Tribunal Act 1975, which were referred to and taken into account during the hearing and for the purposes of this decision.

4. The facts may be briefly summarised as follows.

5. Mr Redpath was 21 years of age in October 1999 when he left his employment at Safeway. He then intended to return to study. He said he made a telephone call to a Centrelink Call Centre shortly after finishing work to inquire into his eligibility for payment of New Start Allowance. He said he made the inquiry because he was not sure whether he had any entitlement. In making the inquiry Mr Redpath said that he had hoped that the operator would notify him that he was obliged to attend a local Centrelink office and make an application. Instead he said he was advised that he would not be eligible within 12 weeks of ceasing employment and would have to wait that period of time before he could claim. Mr Redpath said that he did not give the operator his name or address because he was making an inquiry only and the operator did not ask him for these details. Additionally, he said that the operator did not ask him whether he was - by making a telephone call - making a claim.

6. Twelve weeks after the telephone call was made Mr Redpath attended a local Centrelink office and formally lodged a claim for New Start Allowance. That claim was processed and benefit was granted from the date the claim form was lodged.

7. Mr Redpath seeks to recover, by this application, New Start Allowance between the date of the telephone call in October 1999 and the commencement of payments of New Start Allowance from 21 January 2000.

the legislation

8. S615(1) of the Social Security Act 1991 provides that a person's "provisional commencement day" is - for the purposes of this application - "the day on which the person claims a New Start Allowance" (s615(1)(b)).

9. Relevantly - and significantly for the purposes of this application - s615A(1) and (2) provides as follows:

"615A.(1) Subject to subsections (2) this section applies to a person if:

(a) the person contacts the department by writing, by telephone, or by transmitting a message by use of facsimile or computer equipment, in relation to making a claim for:

(i) a newstart allowance; or

(ii) a sickness allowance; or

(iii) disability support pension; or

(iv) a youth allowance; or

(v) an austudy payment; and

(b) on the day the Department was contacted, the person was qualified for a newstart allowance; and

(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relating to making the claim; and

(d) the person lodges a claim for a pension or allowance referred to in paragraph (a) within the period specified in subsection (2); and

(e) if the claim referred to in paragraph (d) is not a claim for a newstart allowance - the person subsequently lodges a claim for a newstart allowance; and

(f) the Secretary is satisfied that, when the Department was contacted the person:

(i) was unemployed and available for work; or

(ii) was suffering from a medical condition that had a significant adverse effect on the person's ability to work; and

(g) either:

(i) the person gives the Secretary the notice referred to in paragraph (c) when lodging the claim referred to in paragraph (d); or

(ii) the Department has written record that the notice referred to in paragraph (c) has been sent to the person.

conclusion and reasons for decision

10. Ms Bradley in her statement of facts and contentions and at the hearing described the internal procedures within Centrelink when contact is made to a call centre. If a person has a file with Centrelink or has previously made a claim, the nature of the call is recorded (against the person's file). To this extent Mr Redpath had made previous claims upon Centrelink or its predecessor and had claimed New Start on earlier occasions.

11. It would appear that had Mr Redpath claimed New Start Allowance at the time that he made the telephone call in October 1999 that he would - subject to other qualification criteria - become eligible New Start benefit from that date. It would appear that by reason of Mr Redpath making a general inquiry only and by reason of him also not giving the call centre operator his name or address that it was not possible to record on his file that he had made the telephone call or that he was intending to make an application. Indeed Mr Redpath said that the purpose of his call was to make an inquiry only.

12. I am satisfied as a fact that Mr Redpath did make the telephone call in October 1999. It would appear from advice that he has previously been given that he may have rights against the Commonwealth for negligent advice. It would appear that an application has been made for compensation upon Centrelink for the consequences of advice which is alleged to have been negligent. Ms Bradley notified us that the application that had been made had been refused and that notification of the refusal will be communicated to Mr Redpath within a few days of the date of hearing.

13. That application and the proposed decision is not something over which this Tribunal has the power to review.

14. The only matter, which is capable of review before this Tribunal, is the decision to pay benefit from 21 January 2000 only. In effect it is a decision which prohibits a payment of benefit before that date.

15. I am not satisfied having regard to the provisions of s615A that Mr Redpath does have an entitlement to benefit before 21 January 2000.

16. The combined operation of s615 and 615A dictates that any entitlement commences only after a "claim" has been made. Whilst Mr Redpath confirmed that his telephone call in October 1999 was in the nature of an inquiry only and where he did not give his name or address I am unable to conclude that the inquiry of itself can amount to a "claim" within the meaning of the above two sections.

17. There is nothing in the Social Security Act which defines what a "claim" is.

18. In Drayton v Martin 1996 137 ALR at 145 Sackville J discussed in considerable detail the meaning of "claim" in relation to an insurance dispute. Whilst acknowledging that the word "claim" in the context of an insurance policy might have a differing meaning elsewhere, the concept would have uniform features. His honour discussed the dictionary meaning of the word "claim" and referred to authorities of the NSW Court of Appeal and a Canadian decision of the Ontario Court of Appeal.

19. In Walton v National Employers' Mutual General Insurance Association Limited 1973 2 NSWLR 73 the Court recorded that the word "claim" in its "primary sense" meant:

"a demand for something as due, an assertion of a right to something. It imports the assertion, demand or challenge of something as a right."

20. In St Paul Fire and Marine Insurance Co. and Guardian Insurance Co. of Canada 1984 1DLR 342 the Court recorded that the words "claims made" in relation to a liability policy of a solicitor said that the words

"ought to be construed in accordance with the ordinary plain meaning of these words, which, simply stated, denote a claim that is "made" by being notified to or otherwise brought to the attention of the person against whom it is asserted. However that is done, the essence of the making of the claim is that the substance of the claim is in fact "brought home to" hat person."

21. Whilst I would without reservation accept those authorities I would suggest one further element in the making of a claim and that is to identify to the person against whom the claim is intended the identity of the person claiming. Whilst this might appear to be obvious any person receiving a claim would be incapable of processing it or acknowledging the asserted right under the claim without knowledge of the identity of the person claiming.

22. In all of the circumstances and having regard to the above authorities I am unable to conclude that a claim was made within the meaning of s615 and s615A.

23. It follows that because a benefit is only payable from the date that a claim is made that the decision to commence payments to Mr Redpath from 21 January 2000 was in the circumstances the correct decision because it was on that date that a claim was lodged with Centrelink.

24. It follows therefore that the decision under review must be affirmed.

I certify that the twenty four (24) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Linda Nemeth ............................................

Secretary

Date of Hearing 3 August 2000

Date of Decision 11 August 2000

Counsel for the Applicant Not Represented

Solicitor for the Applicant

Counsel for the Respondent Ms Bradley

Solicitor for the Respondent