Jovanovich and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 4 (7 January 2009)

Last Updated: 8 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1863

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KATE AMY JOVANOVICH

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member L Hastwell

Date 7 January 2009

Place Adelaide

Decision

The Tribunal affirms the decision under review.

L Hastwell
(Signed
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – request to back date allowance to applicant’s sixteenth birthday or to date of first inquiry at Centrelink – unsuccessful attempt by applicant's mother to make an on-line application four weeks after initial contact – applicant's mother aware that on-line application not successful – no application made within 14 days of initial contact with Centrelink – no provision for back dating in such circumstances – decision affirmed

Social Security (Administration) Act 1999 (Cth) ss 11(1), 16(1)(a) and (b), 16(7)

Administrative Appeals Tribunal Act 1975 (Cth) s 37

REASONS FOR DECISION

7 January 2009

Senior Member L Hastwell

1. Kate Jovanovich applied for Youth Allowance (YA) on 28 November 2007 and her claim was accepted with effect from that date. She requested that her YA payments be back-dated to the date of her sixteenth birthday being 19 March 2007.
2. Centrelink refused to back-date the YA payment. She sought review from an authorised review officer (ARO) who affirmed the original decision on 29 February 2008. Upon review the Social Security Appeals Tribunal (SSAT) affirmed the ARO decision on 7 April 2008. Miss Jovanovich seeks review of the SSAT decision to this Tribunal.

ISSUE TO BE DETERMINED IN THIS CASE

3. The sole issue for determination is whether the grant of YA made on 28 November 2007 can be back-dated to the date of Ms Jovanovich’s sixteenth birthday, being 19 March 2007 or to a date in May 2007 when she and her mother first made direct contact with Centrelink with respect to this particular allowance.

RELEVANT LEGISLATION

4. The relevant Legislation is contained in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
5. The Administration Act provides the method whereby a person can claim a social security payment.
6. Section 11 of the Act provides as follows:

“11(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 should usually be in writing and this is provided for in ss 16(1) of the Administration Act.

“16(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).”

8. Subsection 16(7) allows for a claim to be made in a manner approved by the Secretary and lodgement of a YA claim via an on-line system was approved on 19 April 2005.
9. Clause 3 of Schedule 2 of the Administration Act provides the general rule for the start date of a benefit or allowance. It provides as follows:

“3(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.”

10. Section 13 of the Administration Act allows for a claim to be lodged on another day after notifying an intention to claim in the following terms:

“Section 13 Deemed claim – person contacting department about a claim for a social security payment
13(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.”

11. Sections 13(2) and (3) allow for some backdating of allowances in specific circumstances such as where illness prevents a person from lodging a claim after the initial intention to make a claim is communicated to Centrelink. These provisions are not relied upon in this case.
12. The provision relied upon by the applicant is that which allows for some backdating to occur when special circumstances are found to exist in a particular case. The relevant provision is as follows:

13(3A) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the 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 practicable for the person to lodge the 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.
13(4) A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.”

THE EVIDENCE PRESENTED TO THE TRIBUNAL

13. Ms Jovanovich (Kate) and her mother were present at the hearing and gave evidence to the Tribunal. The documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were received into evidence. A number of other exhibits were received and where relevant will be referred to.
14. Kate’s mother presented the case for her.
15. She told the Tribunal that she and Kate went to a Centrelink office in May 2007 and spoke to an officer with a view to making an application for YA for Kate. That direct contact was made on 9 May 2007. Kate Jovanovich had turned sixteen years of age in March and an application form for the allowance had been posted to her.
16. She spoke to a counter officer and advised of Kate’s intention to apply for YA. The counter officer advised her of the option of applying for this allowance through the online system. Mrs Jovanovich is familiar with dealing with Centrelink on-line as she is a student who also works on a part-time basis and she uses the on-line system to report her own earnings for the purposes of her parenting payment. She decided to choose that option.
17. Mrs Jovanovich recalls then receiving a letter from Centrelink which confirmed this initial contact. That letter is a standard letter forwarded to potential applicants for such an allowance once the intention to make a claim is notified to Centrelink. It was addressed to Kate and advised her that if a completed claim was returned to Centrelink on or before 23 May 2007 and if she was otherwise qualified for the allowance then payment could commence from 9 May being the date of her initial contact. (R1/T12).
18. Mrs Jovanovich endeavoured to make an on-line application for YA on Kate’s behalf. She did this on 6 June 2007. She used the file number used for her parenting payment. It took her some 45 minutes to complete the forms online but the system told her that she had not successfully made a claim and she was unable to submit the claim. The Centrelink system recorded this unsuccessful attempt to lodge a claim and the application was recorded as being incomplete (R8).
19. From that point on neither Kate or her mother followed up this unsuccessful claim either by going back to the department or by re-attempting the on-line application. Mrs Jovanovich told the Tribunal that she was very distracted by various pressures in her life in the next few months and was “too busy” to follow the matter up. Kate relied on her mother to follow up any Social Security entitlements that she may have had.
20. Her next contact with the department with respect to her daughter’s claim for YA was in November 2007 when the claim was successfully made and granted.
21. Mrs Jovanovich contends that when she and Kate attended Centrelink in May the counter officer should have accepted the claim or encouraged her to make the claim on the spot and that the claim should be granted at least to the date of the first contact in May.
22. She points to the fact that Kate was eligible for the allowance throughout the relevant period, that she had to support Kate during this time, that she is a single parent supporting a family and the legislation should be read beneficially and Kate should be granted the back payment requested. She argues that there are special circumstances in her case.

OTHER RELEVANT EVIDENCE

23. Centrelink provided a number of exhibits that confirmed the various contacts that Mrs Jovanovich had with the department between May and November 2008. Mrs Jovanovich does not dispute those records.

FINDINGS OF FACT

24. Kate turned sixteen years of age on 19 March 2007.
25. Kate and her mother, Majella Jovanovich, attended the Glenelg Centrelink office on 9 May 2007 and enquired about Kate’s entitlement to youth allowance. That contact was treated as an intention to make a claim for YA for Centrelink purposes.
26. Although Kate was already sixteen years of age at the time of this contact, the Centrelink officer mistakenly recorded in her note of that attendance that Kate intended to make the claim when she turned sixteen years of age.
27. Kate was advised of the possibility of making an on-line application if that was her preference.
28. Majella Jovanovich told the counter officer that she had access to a computer and would make an on-line application.
29. Following this initial contact a letter was sent to Kate Jovanovich on 10 May confirming the first contact and advising that eligibility could commence from 9 May if a claim was lodged by 23 May 2007.
30. On 6 June Majella Jovanovich commenced the on-line claim for Kate’s YA, which was unsuccessful as she mistakenly used her own Centrelink reference number rather than generating a new claim.
31. Majella Jovanovich was aware that she had not completed the claim and the incomplete claim is confirmed by Centrelink records.
32. Mrs Jovanovich did not make any further attempt to pursue youth allowance for Kate until she successfully completed the claim in November of the same year.
33. Mrs Jovanovich is a law student who is also working and supporting a young family and she did not follow the matter up in any way until a further application for YA was made in November 2007.
34. Mrs Jovanovich was not given incorrect advice at any time by Centrelink.
35. YA was granted to Kate from the date of a claim in November 2007.

CONSIDERATION AND APPLICATION OF THE LAW

36. The law is straightforward in this case. A person who wants to be granted a social security payment must make a claim and this claim must be in a form approved by the Secretary. An online application can be made.
37. At her initial contact with the department in May, information was given to Kate and her mother as to how to make a claim including the option of making an on-line claim. That option was pursued by Mrs Jovanovich.
38. In a letter sent to Kate on 10 May she was told quite specifically that if she lodged a claim by 23 May then her payment could be effective from 9 May. Neither she nor her mother made a claim within the time.
39. Mrs Jovanovich knew when she made the application on-line in June of that year that the application was unsuccessful and that she had not successfully submitted the claim.
40. The first claim for a youth allowance for Kate was made in November.
41. The legislation allows for some back-dating of allowances but in limited circumstances and for limited periods. The maximum backdating provided for in the legislation is 13 weeks.
42. Section 13 of the Administration Act allows for the 14 day back-dating where a person makes contact with the department and is qualified on the date of contact, the department gives the person a written notice acknowledging the contact and they then lodge their claim within 14 days. That provision has no application in this case. Even had Mrs Jovanovich been successful in making the claim for Kate on 6 June it was well outside the 14 day time line allowed by s 13(1) and back-dating would not have applied.
43. Section 13(3A) of the Administration Act allows for limited back-dating where the Secretary is satisfied that in the special circumstances of the case it was not reasonably practicable for a person to lodge a claim earlier. In that section there is provision for up to 13 weeks of back-dating if the person lodges their claim more than 14 days after the initial contact but no more than 13 weeks after that contact and the department is satisfied that in the special circumstances of the case it was not reasonably practicable for the person to lodge the claim earlier.
44. This provision has no application in this case as the claim as defined in the legislation was not lodged within 13 weeks after the initial contact on 9 May. It was not lodged until November, many months after the initial contact.
45. The Tribunal has limited discretion as defined by the legislation and the discretion to consider special circumstances is only enlivened when a claim is made within 13 weeks of initial contact.

DECISION

46. In the circumstances the Tribunal affirms the decision under review.
    

I certify that the 46 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member L Hastwell

Signed:.....................................................................................

B. Bills Admin Assistant

Date/s of Hearing 30 October 2008

Date of Decision 7 January 2009

Applicant In person

Advocate for the Applicant Mrs Majella Jovanovich (applicant's mother)

Counsel for the Respondent Ms Martine Welfare

Solicitor for the Respondent Centrelink Legal Services Branch