Hudson and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 15 (13 January 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5082

GENERAL ADMINISTRATIVE DIVISION		)
	Re		STEVEN HUDSON

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr S E Frost, Senior Member

Date 13 January 2010

Place Sydney

Decision

The decision under review is affirmed.

.................[sgd].............................
S E Frost
Senior Member

CATCHWORDS

SOCIAL SECURITY: Pensioner Education Supplement – whether payment can be backdated further than date of first contact –relevant criteria not met - decision affirmed

LEGISLATION

Social Security Act 1991: Part 2.24A in Chapter 2; s 1061PB

Social Security (Administration) Act 1999: ss 11, 13; Schedule 2 Part 2, Part 3 clause 30

REASONS FOR DECISION

	Mr S E Frost, Senior Member
13 January 2010

INTRODUCTION

1. This case concerns a claim made by the Applicant, Mr Steven Hudson, for back-dated payment of pensioner education supplement (PES).
2. Centrelink has been paying PES to the Applicant since 14 April 2008. Mr Hudson says that he should have been receiving the payment from a date earlier than that.
3. Mr Hudson’s claim for back-dated payment has been consistently refused, most recently by the Social Security Appeals Tribunal (SSAT). He now seeks review in this Tribunal.

THE FACTS

4. The basic facts of this matter are not in dispute.
5. Mr Hudson enrolled in the course Certificate III in Music at the TAFE campus in Ultimo, Sydney, on 5 February 2008. On 14 April 2008 he lodged a copy of his offer of enrolment and course fee receipt with Centrelink. Four days later, on 18 April 2008, he lodged a claim for PES. His claim form stated that the “official start date” for the course was 1 January 2008. Centrelink approved Mr Hudson’s claim for PES and allocated a payment “start day” of 14 April 2008, being the date of his first contact with Centrelink.

THE ISSUE

6. The issue is whether, on these facts, Mr Hudson is entitled to be paid PES from any date earlier than 14 April 2008.

THE LAW

7. The PES is dealt with in Part 2.24A in Chapter 2 of the Social Security Act 1991 (the Social Security Act). It is, therefore, a “social security payment”: see paragraph (a) of the definition of that expression in section 23 of the Social Security Act: “any other kind of payment under Chapter 2 of this Act”.
8. Section 11 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. The usual way in which a person makes a claim is by lodging a written claim, in accordance with a form approved by the Secretary: s 16 of the Administration Act.
9. Schedule 2 to the Administration Act contains the rules for determining the “start day” in relation to social security payments. The general rules are in Part 2 of the Schedule. In addition, there are some specific rules contained in Part 3. Clause 2 provides that if Part 3 sets out an earlier start day than Part 2, then that earlier start day applies.
10. The general rule in clause 3 of Part 2 states :

(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.

11. This general rule is affected by the ‘deemed claim’ provision in s 13 of the Administration Act. In summary, s 13 of the Administration Act provides that if a person who is qualified for a social security payment contacts Centrelink about the payment, and then follows up the contact with a written claim within 14 days, then the person’s claim for the payment is taken to have been made on the date of the first contact. The deemed claim provision was applied in Mr Hudson’s case because, since he made contact with Centrelink about the PES on 14 April 2008, and followed up that contact with a written claim within 14 days (in fact, only four days later, on 18 April 2008), Centrelink accepted that Mr Hudson’s claim for PES was made on that earlier date, 14 April 2008.
12. Therefore, unless one of the specific provisions in Part 3 of the Administration Act applies to Mr Hudson’s particular circumstances, his “start day” must remain as 14 April 2008. I now turn to those specific provisions.
13. In Part 3 of the Administration Act, clauses 30 to 32 apply to PES. Clauses 31 and 32 are not relevant because they deal with time periods that do not apply to Mr Hudson. Clause 30, however, states that:

If:
(a) a person makes a claim for a pensioner education supplement; and
(b) when the claim is made, the person is qualified for the supplement; and
(c) the claim is made within 4 weeks after the person became qualified for the supplement;
the person’s start day in relation to the pensioner education supplement is the day on which the person became qualified for the supplement.

14. Paragraphs (a) and (b) of clause 30 apply – the relevant date for the purposes of paragraph (b) being 14 April 2008, because of the “deemed claim” provision in s 13 of the Administration Act.
15. Whether paragraph (c) of clause 30 is satisfied will depend on the rules for qualification for PES in Part 2.24A of the Social Security Act. Of these rules, ss 1061PA and 1061PB are the most significant.
16. Section 1061PA says that a person “is qualified” for a PES if, among other things, the person “is undertaking qualifying study”. For a person to be undertaking qualifying study, the Secretary must be satisfied, among other things, that the person “is enrolled in a course of education at an educational institution” (s 1061PB(1)(a)).

APPLICATION OF THE LAW TO THE FACTS

17. The evidence is that Mr Hudson enrolled in the TAFE course on 5 February 2008. That is when he “became qualified” for PES. As a result of the deemed claim provision, Mr Hudson is taken to have made his claim for PES on 14 April 2008. Pursuant to clause 30 in Schedule 2 to the Administration Act, if Mr Hudson had made his claim within four weeks of 5 February 2008, then he would have been entitled to be paid PES from 5 February 2008. However, he made his claim outside the four-week time period granted by clause 30(c). As a result, Mr Hudson is not entitled to be paid PES any earlier than 14 April 2008, because that is his “start day”.

CONCLUSION

18. The decision under review is affirmed.
    

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

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

M. Corcoran, Associate

Date of Hearing 18 November 2009

Date of Decision 13 January 2010

Solicitor for the Applicant Appeared in person

Solicitor for the Respondent Ms G. Heggen, Centrelink Legal Services