Thompson and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 799 (19 October 2009)

Last Updated: 19 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0898

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DENISE THOMPSON

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent
DECISION

Tribunal

Dr T M Schafer, Member

Date 19 October 2009

Place Sydney

Decision

The decision under review is affirmed.

...................[sgd]...........................

Dr T M Schafer
Member
CATCHWORDS
SOCIAL SECURITY - Widow allowance - whether back payment can be made in arrears -whether a deemed claim existed prior to the lodgment of written claim - whether a medical condition or special circumstances existed prior to the lodgement of written claim - eligibility for economic security strategy payment - the decision under review is set aside, substituted and remitted

LEGISLATION
Social Security Act 1991 – sections 23, 900,
Social Security (Administration) Act 1999 - sections 11, 12, 12AB, 13, 16, Schedule 1

CASE LAW
Thomas and Secretary, Department of Education, Employment, and Workplace Relations [2008] AATA 1090

REASONS FOR DECISION

19 October 2009

Dr T M Schafer

BACKGROUND

1. On 11 February 2006, Ms Denise Thompson was granted newstart allowance at the partnered rate because she was married.
2. On 26 November 2007, Ms Thompson advised Centrelink that she had moved to Tuncurry in New South Wales to care for her elderly mother. She also advised Centrelink that she had separated from her husband.
3. On 28 November 2007, Ms Thompson lodged a claim for carer allowance and/or carer payment. Centrelink rejected the claim for carer allowance on 6 December 2007 and the claim for carer payment on 11 December 2007.
4. On 1 December 2008, Ms Thompson lodged a written claim for widow allowance.
5. On 4 December 2008, Centrelink approved Ms Thompson's claim and the widow allowance was paid from 22 November 2008.
6. Ms Thompson requested a review of the date to which her widow allowance could be backdated. On 18 December 2008, Ms Thompson wrote to Centrelink, complaining that she had at no stage been advised by Centrelink that she could claim a widow allowance after separating from her husband. She noted in her letter that:
   • she had completed a “separation form” and handed it in to the Tuncurry Centrelink office on 25 November 2007; and
   • when her family home had sold, she lodged a “module S” form with Centrelink which provided details of the separation from her husband.
7. On 19 December 2009, an Authorised Review Officer (ARO) telephoned Ms Thompson regarding her request for review. Ms Thompson told the ARO that she wanted her entitlement to widow allowance backdated so that she would qualify for the Economic Security Strategy (ESS) payment.
8. On 22 December 2008, the ARO decided that Ms Thompson’s widow allowance could not be backdated any earlier than 22 November 2008. The ARO also decided that an ESS payment could not be made to Ms Thompson because she was not in receipt of a qualifying payment on 14 October 2008, the time the payment was announced.
9. Ms Thompson appealed Centrelink’s decision to the Social Security Appeals Tribunal (SSAT) on 30 December 2008. On 10 February 2009, the SSAT affirmed Centrelink’s decision.
10. On 4 March 2009, Ms Thompson applied to this Tribunal for a review of the SSAT’s decision of 10 February 2009.

ISSUE

11. The issues before the Tribunal are:
    • (i) whether Ms Thompson’s entitlement to widow allowance can be backdated to 14 October 2008 or prior to that date; and
    • (ii) if so, whether Ms Thompson is entitled to the 2008 ESS payment.

LEGISLATION

11. The criteria that a person must meet to qualify for an ESS payment are set out in section 900 of the Social Security Act 1991 (the Act). Subsection 900(1) of the Act provides:

(1) A person is qualified for an economic security strategy payment if subsection (2), (3) or (4) applies to the person.

12. Subsection 900(2) of the Act provides:

(2) This subsection applies to a person if:
(a) the person was receiving one of the following payments in respect of 14 October 2008:
(i) an age pension;
(ii) a disability support pension;
(iii) a wife pension;
(iv) a carer payment;
(v) a bereavement allowance;
(vi) a widow B pension
(vii) A widow allowance;
(viii) partner allowance;
(ix) carer allowance; and
(b) except in the case of carer allowance, the person was receiving that payment because of a claim the person made on or before 14 October 2008.

13. Subsection 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person who wants to be granted a social security payment must make a claim for the payment or card in accordance with this Division.
14. Section 13(1) of the Administration Act provides:

(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.

15. Section 12 provides for a claim to be deemed to have been made in certain circumstances:

(1)  The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment ), if:
(a)  the person became qualified for the new payment while receiving another income support payment; or
(b)  the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2)  The person is taken to have made the claim for the new payment on the day specified in the Secretary's determination. That day must not be earlier than:
(a)  the day that is 13 weeks before the day on which the Secretary's determination is made; or
(b)  if the person became qualified for the new payment after the day referred to in paragraph (a)--the day on which the person became qualified for the new payment.

16. Section 16 of the Administration Act provides the manner and form for a person to make a claim in a manner approved by the Secretary:

(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).
(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(4) A written claim is lodged by being delivered:
(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b) to a person approved for the purpose by the Secretary; or
(c) in a manner, and to a place, approved for the purpose by the Secretary.
(5)  Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6)  The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of:
(a)  claims made under a scheduled international social security agreement; or
(b)  claims for AGDRP in relation to a major disaster that occurred outside Australia.
(7)  A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8)  The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

17. Clause 2 of Schedule 1 of the Social Security and Other Legislation Amendment (Economic Security Strategy) Act 2008 provides:

2 Certain claims that would otherwise be taken to have been made on or before 14 October 2008
For the purposes of the provisions inserted by item 1, the following are to be disregarded:
(a) the effect of section 12 of the Social Security (Administration) Act 1999, so far as it relates to a determination under that section that is made after 14 October 2008;
(b) the effect of section 15 of the Social Security (Administration) Act 1999 , so far as it relates to the Secretary becoming satisfied of a matter, as mentioned in that section, after 14 October 2008.

CONSIDERATION

18. The ESS payment was introduced as part of the Federal Government's $10.4 billion Economic Security Strategy in October 2008. A person's eligibility for the ESS payment depended on whether the person was in receipt of a qualifying payment on 14 October 2008, which was when the payment was announced.
19. There is no provision in the Act to extend the ESS payment to persons who were in receipt of one of the qualifying payments in section 900(2) of the Act after 14 October 2008. In order to qualify for the ESS payment, therefore, Ms Thompson had to be receiving a widow allowance on 14 October 2008. Although Ms Thompson was receiving a newstart allowance on that date, this is not a qualifying payment in subsection 900(2) of the Act. Ms Thompson was not, therefore, eligible for the ESS payment on 14 October 2008.
20. Given the above, I must decide whether there is any provision to backdate Ms Thompson's widow allowance to 14 October 2008, or a date prior, such that she would qualify for the ESS payment.
21. Ms Thompson lodged a written claim for widow allowance on 1 December 2008. This was purportedly in accordance with sections 11 and 16 of the Administration Act. Her widow allowance was approved on 4 December 2008 on the basis of this written claim.
22. Ms Thompson's widow allowance was then backdated to 22 November 2008 by application of clause 1(2) of Schedule 1 of the Administration Act, which sets the date that a person transfers from one payment to another. It provides that the transfer date is "the day that immediately follows the last day on which the old payment is payable to the person." As Ms Thompson was last paid her newstart allowance on 21 November 2008, her transfer date to the widow allowance was 22 November 2008.
23. There is also provision in section 12 of the Administration Act for backdating of income support payments in certain circumstances. Ms Thompson claims that she was transferring from newstart allowance to widow allowance when she lodged her claim. If section 12 applies, however, Ms Thomson was not required to lodge a claim. Similarly, section 12AB of the Administration Act provides that a claim is not required for an ESS payment.
24. It appears from the evidence that Centrelink misinformed Ms Thompson of the requirement to lodge a claim to transfer from her newstart allowance to the widow allowance. Centrelink records indicate that Ms Thompson was advised by Centrelink that they were unable to backdate her widow allowance but they provided her with a Widows [sic] Allowance Claim for completion and lodgement.
25. Centrelink has accepted that Ms Thompson qualified for widow allowance while she was receiving newstart allowance. Both allowances are "income support payments" within the meaning of that term given in section 23(1) of the Act. It seems reasonable to me that the claim for widow allowance that Ms Thompson made on 1 December 2008 should be taken to be a request to transfer from her newstart allowance. The issue, therefore, is whether section 12 of the Administration Act applies.
26. In its reasons for not applying section 12 of the Administration Act, the Social Security Appeals Tribunal referred to the explanation of that section provided in the Bills Digest (No 1, 1999-2000) (the Digest):

Clause 12 provides that if a person is receiving an income support payment and they have become qualified for another payment (which may include a payment with a lower benefit) and the Secretary of the Department of Family and Community Services determines that they are to be transferred to the other payment, the person will be deemed to have made an application for the other payment to which they qualified at the time that the Secretary makes the determination. Such a determination by the Secretary may only be made where the person has ceased to qualify for the benefit they were previously receiving unless the transfer is authorised by another part of the social security payment.

27. Subsection 12(1) of the Administration Act provides, however, that the Secretary may make a determination either if:

“(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment." (my emphasis).

28. The explanation of section 12 in the Digest refers to only one of the circumstances in which the Secretary may make a determination, but omits the particular circumstance that is relevant in Ms Thompson's case, viz that "the person became qualified for the new payment while receiving another income support payment."
29. In my view, therefore, section 12 of the Administration Act does apply in Ms Thompson's case. This means that sections 11, 13 and 16 were misapplied by the original decision maker and ARO.
30. I note, however, that Ms Thompson stated in her evidence that she is seeking for the Tribunal to backdate her widow allowance to 14 October 2008 so that she would qualify for the ESS payment. She also stated that there was no other reason to backdate her widow allowance, because the payment was otherwise the same as the newstart allowance.
31. Bearing the above in mind, even if I were to decide that section 12 of the Administration Act could be applied to backdate Ms Thompson's widow allowance to 14 October 2008 or a date prior, clause 2(a) of Schedule 1 of the Social Security and Other Legislation Amendment (Economic Security Strategy ) Act 2008 precludes the use of section 12 insofar as it relates to a determination under that section that is made after 14 October 2008. This means that section 12 of the Administration Act cannot be used to backdate income support payments so that a person can, in effect, retrospectively qualify for the ESS payment.
32. Accordingly, there is no purpose in considering section 12 in Ms Thompson's case, because its application to facilitate her qualification for the ESS payment is precluded.
33. There are no other means by which Ms Thompson's widow allowance can be backdated to 14 October 2008, or a date prior, so that she qualifies for the ESS payment.

DECISION

34. For the reasons stated above, the decision under review is affirmed.
    

I certify that the thirty-four (34) preceding paragraphs are a true copy of the reasons for the decision herein of Dr T M Schafer, Member.

Signed: .....................................[sgd]..........................................

Associate

Date of Hearing 17 July 2009

Date of Decision 19 October 2009

Appearance for the Applicant Self-represented

Appearance for the Respondent Ms A Garcia, Centrelink Legal Services and Procurement Branch