Taylor and Secretary to the Department of Family and Community Services [2002] AATA 989 (23 October 2002)

Last Updated: 5 November 2002

DECISION AND REASONS FOR DECISION [2002] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/602

GENERAL ADMINISTRATIVE DIVISION

Re: ELAINE TAYLOR

Applicant

And: SECRETARY TO THE

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal: M.J. Carstairs, Member

Date: 23 October 2002

Place: Melbourne

Decision: The Tribunal sets aside the decision that there is no jurisdiction, and affirms the decision of the Centrelink delegate made on 21 March 2002 that there is no claim for mobility allowance and therefore, under Part 2.2 of the Social Security Act 1991, mobility allowance was not payable.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY - mobility allowance - meaning of decision in the Administrative Appeals Tribunal Act - whether claim for mobility allowance made

Social Security Act 1991 s1040(1), (2)

Crompton v Repatriation Commission (1993) 30 ALD 45

Ward v Nicholls (1988) 20 FCR 18

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167

REASONS FOR DECISION

23 October 2002 M.J. Carstairs, Member

1. This is an application by Elaine Taylor (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 16 May 2002. The SSAT affirmed a decision of an authorised review officer from Centrelink, dated 18 April 2002, that there was no jurisdiction to review a decision of a Centrelink delegate, dated 21 March 2002, in regard to mobility allowance.

2. The application was heard on the papers. In addition to the material lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, the Tribunal had before it the respondent's statement of facts and contentions dated 16 August 2002, copies of computer file notes held by Centrelink covering the period 18 November 1994 to 21 December 1999, and a letter from the applicant received by the Tribunal on 4 September 2002.

BACKGROUND

3. The applicant was born on 13 August 1947. She claimed mobility allowance on 27 September 2001. Centrelink rejected the claim on 26 November 2001 and an authorised review officer affirmed the decision on 27 December 2001. The applicant appealed to the SSAT. The appeal was successful and, on 19 February 2001, the SSAT decided that the applicant was to be paid mobility allowance from the date of her claim, 27 September 2001. The applicant indicated, during the course of the review on the claim for mobility allowance made in 2001, that she also sought arrears of payments on the basis that she had made claims for mobility allowance 7 years previously and 12 years previously.

4. Centrelink having conducted a search of its records, a Centrelink delegate made a decision (T21) on 21 March 2002, that there was no evidence of claims for mobility allowance made at either of those earlier times (there had been two claims for disability support pension, however.) When the applicant sought review of that decision an authorised review officer decided, on 18 April 2002 (T23), that, as there was no decision concerning mobility allowance at those earlier times, he had no jurisdiction to review the claim for arrears of mobility allowance.

5. When the applicant sought review with the SSAT, that Tribunal also reached the conclusion that, as there had been no decision regarding mobility allowance before 27 September 2001, the SSAT had no jurisdiction to review the claim for arrears of mobility allowance. The applicant then sought review with this Tribunal on 11 June 2002.

EVIDENCE

6. The applicant submitted a letter, on 4 September 2002, attaching what she claimed were computer records of telephone calls to Centrelink, made in 1995. She stated that these records of telephone calls were ones in which she discussed mobility allowance quite intensively with either Mr Ritchie or Mr Todd maybe Mr Porter. She said that there could have been another call also.

7. The applicant stated that she had asked for a copy of the mobility allowance document from the doctors at Rivendale Community Centre, a psychiatric centre in Healesville. She said that Dr Tinney had sent off the original claim form and kept a copy. She said, however, that she thinks that it may have been lost or stolen from her records at the medical practice. She said others at Rivendale could not recall the document. She had been trying to contact a person named "Lue", who may be able to remember it. She further stated that a Mrs Janson was a witness to my reply for the mobility allowance but she doesn't want to get involved.

8. In evidence given to the SSAT (T2), the applicant said that the first claim was made while she was at the Rivendale Community Centre, where she had assistance in filling out the form. She was later told at Rivendale that her claim had been refused. She had been in touch with the person who had assisted her, but that person had no recollection of the claim. In regard to the second claim 7 years ago, she told the SSAT, that she had filled in the forms for mobility allowance herself and posted them. She told the SSAT that she had received a decision rejecting that claim and had decided not to appeal.

CONSIDERATION OF THE ISSUES

9. The legislation providing for mobility allowance at the relevant times was found in Part 2.21 of the Social Security Act 1991 (the Act), which provided at s1040 (since repealed):

1040.(1) A person who wants to be granted a mobility allowance must make a proper claim for that allowance.

1040.(2) For the purposes of subsection (1), where:

(a) a claim for mobility allowance is made by or on behalf of a person; and

(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for mobility allowance;

the claim is to be taken to have not been made.

10. Sections 1041 and 1042 provided that the claim must be in writing in an approved form and lodged at an office of the respondent or other approved place. Section 1038 and 1039 of the Act provided that mobility allowance was not payable before the date of a claim except as provided for in s1039(2).

11. The respondent submitted the following through its written statement of facts and contentions:

...

(i) Mrs Taylor lodged a claim for disability support pension ("DSP") on 7 April 1992(T3, pp,8-13).

(ii) The lodgement of the claim created a new claim action sheet (T5, p17). The sheet notes the claim type, the modules (ie forms) issued and any previous payment history. The sheet notes that Mrs Taylor had been in receipt of family allowance. No other claim is identified.

(iii) Mrs Taylor lodged a medical details form with her claim (T4, pp14-16). Mrs Taylor noted her condition stopped her from using public transport. Mrs Taylor also stated that she wasn't able to participate in work rehabilitation or work training.

(iv) DSP was granted and a letter dated 26 May 1992 was sent to Mrs Taylor (attachment 1). The letter specifically states that rehabilitation, training or help to look for work would not be of help. If Mrs Taylor was not engaged in those activities MOB would not be payable even if a claim was lodged.

(v) DSP was cancelled due to the income test from 6 October 1994 (T6, ppl8-19).

(vi) On 28 February 1995 a new claim for DSP was lodged (T7, pp20-22). It also generated a new claim action sheet (T9, p27). No record of a claim for MOB was noted.

(vii) Mrs Taylor lodged a medical details form with her claim (T8, pp23-26). Mrs Taylor stated that her condition did not stop her from using public transport. Therefore even if a claim for MOB was lodged Mrs Taylor was not qualified for payment.

(viii) There is no evidence that any claim for MOB was lodged prior to 27 September 2001 and there is no evidence that Mrs Taylor was qualified for MOB at any time prior to that claim.

(ix) Mrs Taylor stated that she had lodged MOB claims prior to 2001(T19, pS2).

(x) All Centrelink files were searched by the MOB team and no claims were found (T21, p54).

(xi) The computer records show no record of any prior MOB claims.

(xii) Mrs Taylor may have obtained MOB claim forms prior to September 2001 but those claim forms were not lodged with either the Department of Social Security, prior to July 1997, or with Centrelink after that date.

(xiii) Mrs Taylor's has stated that she received a letter rejecting a MOB claim. A rejection letter is generated by what is known as the On-line-advice ("OLA") computer system. For a OLA letter to be produced there has to be a computer record of a claim and computer records showing the processing of the claim. For example; when Mrs Taylor lodged her DSP claim in February 1995 there was a delay in providing information. A computer activity was created on 22 March 1995 noting information had not been provided and so the claim was to be rejected. That computer activity automatically generated a rejection letter (attachment 2). It is difficult to accept Mrs Taylor's statement that she received a MOB rejection letter about 7 years ago without the Centrelink computer system showing a MOB claim and rejection.

(xiv) There is no evidence to support an allegation that a third party lodged a claim and received MOB payments on behalf of Mrs Taylor. This is also inconsistent with Mrs Taylor's statements that either the Rivendale Community Centre or she lodged MOB claims on her behalf

(xv) It has been consistently required under Social Security legislation that for a claim to be made that claim has to be in writing and lodged at an office of the Department/Centrelink. There is no evidence that a claim was lodged prior to September 2001. The Centrelink file & computer records indicate that all claims, review forms and queries by Mrs Taylor were noted and dealt with. If Mrs Taylor posted MOB claims and they were not received by the respondent it cannot be found that claims were lodged.

(xvi) Even if it was accepted that Mrs Taylor did lodge an earlier claim her own evidence is that she received a notice advising of the rejection of that claim and decided not to appeal. Therefore her appeal against any such rejection decision is out of time and so MOB would not be payable.

12. No submissions were made on the question of jurisdiction.

13. The Tribunal has reached its decision taking into account the written material and submissions. Both levels of review have treated the question as one of jurisdiction, and declined jurisdiction. In Crompton v Repatriation Commission (1993) 30 ALD 45 the Full Court of the Federal Court (applying Director-General of Social Services v Chaney (1980) 3 ALD 161) held that a jurisdictional finding made by the Veterans' Review Board was a procedural matter. In Ward v Nicholls (1988) (1988) 20 FCR 18 at 27 the Court held that the Tribunal had power to review a decision where a tribunal below it declined jurisdiction, saying:

...

It would be a very odd situation if ... the Administrative Appeals Tribunal ... was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made.

14. In the applicant's case both the decision of the authorised review officer and that of the SSAT in substance went further than merely declining jurisdiction. The authorised review officer stated (T23) I cannot locate any evidence of a mobility allowance claim being lodged during this time (a reference to the 7 to 12-year period before). The SSAT made a finding of fact in the following terms: There is no record of any claim for mobility allowance before 27 September 2001. As set out in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167, where "decision" is referred to in the Administrative Appeals Tribunal Act, it is a reference to a decision made in fact, and not to the effect which the decision may have had under the power in the intended exercise of which it was made. Here, both the authorised review officer and the SSAT made substantive decisions, while ostensibly declining jurisdiction.

15. More importantly, for the question of overall jurisdiction, there was here a primary decision, amenable to review, namely that of a Centrelink delegate dated 21 March 2001, which stated:

...

I am writing in regard to your conversation ... in which you stated that you lodged claims for Mobility Allowance seven and 12 years ago.

Examination of departmental records fail to support your claims and I am unable to consider you eligible for any payment for this time.

16. The Tribunal is satisfied on the basis of the extensive searches conducted through files and computer records that the respondent or its agents received no claim. In the absence of a claim in writing lodged with the respondent, because of the combined effect of ss1038, 1039, 1040, 1041 and 1042 of the Act, no payment of mobility allowance could have been made.

17. The Tribunal considered the possible application of s1039(2) of the Act, which provided:

If:

(a) a person makes a claim (in this subsection called the initial claim) for a pension, benefit, allowance or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a mobility allowance; and

(b) on the day on which the person makes the initial claim, the person is qualified for mobility allowance; and

(c) the person subsequently makes a claim for mobility allowance; and

(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

the person's provisional commencement day is the day on which the person made the initial claim.

However, it is not suggested that the applicant made claims under other Acts and neither of the earlier claims for disability support pension falls within the terms of s1039(2)(a). In addition, the Tribunal accepts the submission of the respondent that, on the available evidence, it is unlikely that at the time of the earlier claims for disability support pension, the applicant was qualified for mobility allowance.

DECISION

18. The Tribunal sets aside the decision that there is no jurisdiction and affirms the decision of the Centrelink delegate made on 21 March 2002 that there is no claim for mobility allowance and therefore, under Part 2.2 of the Social Security Act 1991, mobility allowance was not payable.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of

M.J. Carstairs, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: Nil -- decision on papers

Date of decision: 23 October 2002

Solicitor for applicant: NIL -- self-represented

Advocate for respondent: NIL -- Mr M. Todd, Centrelink