Uameer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 359 (18 May 2009)

Last Updated: 19 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 359

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1272

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DUNYA UBD UAMEER

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Dr Kerry J Breen, Member

Date 18 May 2009

Place Melbourne

Decision

The decision under review is affirmed.

[sgd] Kerry J Breen
Member

SOCIAL SECURITY – Special benefit - decision affirmed – poor administration and misleading advice – intervention by Secretary or Ombudsman recommended.

Social Security (Administration) Act 1999 (Cth) ss 11, 13, 16, 41 and Schedule 2

Administrative Appeals Tribunal Act 1975 s 37

REASONS FOR DECISION

18 May 2009

Dr Kerry J Breen, Member

1. This review concerns a decision made by officers of Centrelink and subsequently affirmed by the Social Security Appeals Tribunal (the SSAT) to deny payment to Mrs Dunya Ubd Uameer of special benefit between 31 May 2007 and 8 October 2007. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. The circumstances giving rise to the application are troubling. For reasons which follow, I have found that strict interpretation of the legislation disentitles Mrs Uameer to special benefit. However, and also for reasons which follow, I am strongly of the view that Mrs Uameer should lodge a claim for defective administration or intervention by Centrelink. Alternatively, Mrs Uameer may wish to approach the Federal Ombudsman in regard to her claim.
2. Mrs Uameer immigrated to Australia in 2005. She was subject to a two year period of assurance of support. She received a letter from Centrelink dated 24 May 2007 informing her that her period of support had now ended. She approached a Centrelink office about access to special benefit but alleges that, via an interpreter, she was given to understand that she was not eligible for special benefit and would only become eligible when she had been granted a permanent residence visa. In October 2007, Mrs Uameer lodged an application for special benefit and this was granted. She sought review of this decision, claiming that the benefit should have been paid from the time in May 2007 when she first contacted Centrelink. A Centrelink authorised review officer and subsequently the SSAT affirmed the original decision, primarily on the grounds that a benefit can legally only be paid upon receipt of a written claim.
3. This application is an appeal in relation to the decision of the SSAT to affirm the Centrelink decision. While affirming the original decision, the SSAT also made a Suggestion for Centrelink action in the following words:

The Tribunal suggests that Centrelink investigates the possibility of making a payment in this matter under the Compensation for Detriment Caused by Defective Administration (CDDA) scheme, equivalent to the special benefit to which Mrs Ubd Uameer would have been entitled had a claim for payment from 31 May 2007 been accepted.

The SSAT added

It would appear that Mrs Ubd Uameer suffered economic loss as a result of being given incorrect information when she enquired at Centrelink in May 2007 about her entitlement to a special benefit. Furthermore, it would appear Centrelink failed to seek further details of her situation and discouraged her from making a claim, so denying her the opportunity to have her eligibility properly determined by lodging a claim for special benefit.

The suggestion made by the SSAT was consistent with the advice of an authorised review officer provided in a letter accompanying his Decision Statement dated 30 October 2007, where he wrote: I have also decided that your local Office should consider examining your case for customer compensation. I will advise the Shepparton Office to consider this option.

4. Subsequently, the matter was reviewed under Centrelink’s Customer Compensation scheme. However, the case manager who examined the case concluded that From a CDDA perspective, based on the evidence before me, I am not satisfied the customer was incorrectly advised. Compensation is not recommended. That decision is not the subject of this appeal but it will be necessary for the Tribunal to make certain observations about the process and reasoning apparently behind that decision, as those observations are relevant to the final advice contained in this decision.
5. The key issues in dispute before me are (a) the advice Mrs Uameer was given (via an interpreter) on the first occasion that she went to a Centrelink office after receipt of the letter dated 24 May 2007 and (b) whether Mrs Uameer shortly thereafter received a further letter and accompanying claim form from Centrelink.
6. Mrs Uameer does not dispute that the first and only written claim form she lodged with Centrelink was dated 11 October 2007.

THE RELEVANT LEGISLATION

7. Section 11 of the Social Security (Administration) Act 1999 (the Administration Act) sets out a general rule that a person who wants to be granted a Centrelink payment must make a claim in accordance with the provisions of the Administration Act. Section 16 of the Administration Act stipulates that the claim is to be in writing and in an approved form.
8. Section 41 of the Administration Act provides that a payment, such as a special benefit, commences from the person’s start day. Clause 3 of Schedule 2 of the Administration Act provides the general rule that the person’s start day is the day that the person makes a claim for payment, provided the person was qualified for payment at that date.
9. Section 13 of the Administration Act also provides that where a person contacts Centrelink, is qualified for payment on that day and lodges a claim within 14 days, the person is treated as if a claim had been made on the date of contact with Centrelink. In addition, pursuant to s 13(3A)(d) and (e) of the Administration Act, a special circumstances clause applies as follows: (d) the person lodges a claim for a social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted: and (e) the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practical for the person to lodge a claim earlier; the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

THE EVIDENCE

10. The documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 included a copy of Mrs Uameer’s application for review (T1), a copy of the SSAT reasons for decision dated 19 February 2008 (T2), a print out of the Centrelink computer screen dated 31 May 2007 referring to contact with the Applicant (T5), a print out of a computer screen of a letter addressed to the Applicant dated 31 May 2007 (T6), a print out of the Centrelink computer screen of contact with the Applicant on 3 July 2007 (T7) and a copy of the letter and decision statement of the authorised review officer dated 30 October 2007 (T15). In addition, the Respondent provided the Tribunal with a copy of a five page report entitled Customer Compensation Submission dated 18 December 2007, to which was attached a letter to Mrs Uameer dated the same day.
11. In her application for review, Mrs.Uameer stated that they asked me to provide me (sic) new visa so I did contact immigration department and they told me you can received (sic) your payment without your visa ...
12. Mrs Uameer was unrepresented and participated in the hearing by telephone, assisted by an interpreter in the Arabic language. She gave evidence that she was aware of her entitlement to special benefit (at the end of her two year period of assurance of support) as she had been advised of this when she spoke to staff in the Australian Embassy in Jordan and was reinforced in this understanding by friends in Australia. Upon her arrival in Australia, her husband’s benefits had been reduced and they had been forced to borrow money from friends to be able to cope financially during her two year period of assurance. The amount borrowed had reached $4000 and she said that for this reason she was keenly awaiting confirmation of the end of this two year period. When a letter arrived from Centrelink, she went to her Centrelink office promptly (there was a discrepancy in regard to her recall of the date of that attendance and during the hearing, she conceded that it must have been on 31 May 2007). She stated that she only attended Centrelink once in May 2007.
13. She has great difficulty reading English but knew if she went to Centrelink, an interpreter would be available to explain the letter to her. She recalled that the Centrelink staff member she spoke with was a female and that the interpreter’s name was Asif. She said that the interpreter is presently overseas. She repeated her evidence that she was told, via the interpreter, that she needed to bring in her permanent residency visa and until then she was not entitled to special benefit. She stated that her husband was with her, that his English is better than hers and that he felt that the interpreter understood what was being said.
14. She explained that around that time she was very upset and emotionally distressed as she was pregnant and had just been advised that the pregnancy should be terminated because of a foetal abnormality. The termination took place on 5 June 2007.
15. Mrs Uameer denied receiving the Centrelink letter dated 31 May 2007. She said that she was very careful with her mail and that if she had received such a letter, she would have gone quickly to Centrelink to have the letter translated for her.

SUBMISSION

16. Mr A Carson, a Centrelink advocate representing the Respondent, contended (in summary) that in law a benefit could not be paid without receipt of a written claim form and as the only claim form Centrelink had received was dated 11 October 2009, benefits could not be paid from an earlier date.
17. Mr Carson also contended that the Tribunal should accept the existence of a letter addressed to Mrs Uameer on a Centrelink computer screen (T6) as evidence that a letter (with an enclosed claim form) was sent to Mrs Uameer on that day (31 May 2007).
18. In answer to questions from the Tribunal, Mr Carson agreed that it was unusual that the computer screen print out (T5) for 31 May 2007 contained no information other than the date and Mrs Uameer’s identification details. He was unable to proffer an explanation as to why, if Mrs Uameer did then qualify for special benefit, she was not handed the claim form while the interpreter was present.
19. Mr Carson conceded that the Centrelink records (T7 and T8) showed that Mrs Uameer had been incorrectly advised that because she had not been resident in Australia for 104 weeks, she was not entitled to a health care card.
20. Mr Carson expressed regret on behalf of the Respondent that there was no way to be found to backdate her payment.
    

DECISION AND REASONS FOR DECISION

21. Strict application of the legislation has satisfied me that Mrs Uameer cannot qualify for special benefit. The chronology clearly shows that her claim, within the meaning of s 16 of the Administration Act, was not lodged until 11 October 2007.
22. I have considered briefly whether it would be open to me to find that special circumstances applied at the date of 31 May 2007, which would have given the Respondent the latitude to grant special benefit from that date. Those special circumstances, which may have been invoked to justify an extension of the time limit of 14 days to lodge a claim form, (presuming that a claim form and letter were mailed to her) could have included her distressed state at the time and the possible incorrect advice provided by Centrelink via an interpreter. However, in law, Centrelink would still have needed to receive a claim form within 13 weeks of 31 May 2007; so this avenue is not open to me.
23. Accordingly, the decision under review must be affirmed.

OBSERVATIONS AND RECOMMENDATIONS

24. In making the previous findings and in making the observations and recommendations that follow, I am satisfied that Mrs Uameer is a person of truth who did not seek to exaggerate or embellish her evidence.
25. In the absence of any information on the Centrelink computer screen on 31 May 2007, I accept, on the balance of probabilities, Mrs Uameer’s version of what took place on that day; i.e. that she was wrongly advised in regard to her entitlement to special benefit. Whether this occurred because of interpreter error is of no relevance.
26. In the absence of stronger evidence from Centrelink regarding the sending of a letter and claim form on 31 May 2007 (as for example by an internal record of despatch or a trace via prepaid postage), I also accept Mrs Uameer’s evidence that she did not receive a letter and claim form from Centrelink. I note in passing that the letter of 31 May 2007 on the Centrelink computer (T6) makes no mention of there being a claim form enclosed or attached.
27. The assessment of the claim for customer compensation leaves much to be desired. The case manager chose not to interview Mrs Uameer and relied on the report of her evidence as summarised in the SSAT Reasons for Decision document, thereby denying her natural justice and denying himself the opportunity to test her credibility, especially in relation to what she understood from the interpreter and as to whether she did receive a claim form in the mail. This also denied him the opportunity to clarify how many attendances Mrs Uameer made at Centrelink in May 2007 and the understandable reason why she may have had the date of her attendance a few days out. If this had been clarified, the report would not have included reference to an incorrect assumption that Mrs Uameer was stating that she attended Centrelink on both 25 and 31 May 2007. These oversights were compounded by the unfair implication in the case manager’s report that he was critical of Mrs Uameer for taking advice from an interpreter, this being his apparent interpretation of her statement that the interpreter advised her ...
28. The sequence of events on and after 31 May 2007 has caused me considerable concern. I am not critical of any Centrelink officer involved on that day, as anyone can make a mistake; and even the most conscientious of record keepers can, if distracted for other reasons, fail to make a note of an encounter. However, the absence of any notation almost certainly disadvantaged Mrs Uameer further, in that when she contacted Centrelink again on 3 July 2007 about another matter (a Health Care Card), there was no material on her record to alert another staff member to her possible entitlement to special benefit.
29. It is difficult for me to accept the findings of the case manager handling Mrs Uameer’s compensation claim. Indeed the report reads to me as being constructed in an entirely negative manner and appears to be designed to contradict the suggestions of the SSAT (which the Tribunal had the benefit of hearing directly from Mrs Uameer) rather than to dispassionately consider the possibilities of what took place on 31 May 2007.
30. It is not for this Tribunal to make findings in any of the above matters; nor is it my task to ascertain what powers the Respondent has to review the decision under the Compensation for Detriment Caused by Defective Administration (CDDA) scheme. However, on the assumption that the Respondent has such a power, I make the following recommendation.
31. I recommend that a review of the decision to deny compensation for defective administration be undertaken and/or there be intervention by the Respondent.
32. In the alternative, if such a review is not able to be conducted, I recommend that intervention on behalf of Mrs Uameer by the Commonwealth Ombudsman would be warranted; and to assist that, I advise Mrs Uameer to submit this document as part of her request to the Ombudsman.

I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Kerry J Breen, Member

[sgd]: Leah Berardi

Clerk

Date of Hearing 24 April 2009

Date of Decision 18 May 2009

Solicitor for the Applicant Self Represented

Departmental Advocate Mr P Carson