Editors --- "Claim for disability support pension: arrears; transfer from newstart allowance under s.12 Administration Act" [2005] SocSecRpr 20; (2005) 7 Social Security Reporter, Article 20

• WINCHESTER and SECRETARY TO THE DFaCS
• Background
• The law
• Formal decision

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Newstart allowance: start date for payment; special circumstance

WINCHESTER and SECRETARY TO THE DFaCS

(2005/867)

Decided: 7th September 2005 by E.K. Christie

Winchesters ought review of a decision that granted him newstart allowance (NSA) from 17September 2004.Winchesterargued for payment of NSA to commence prior to 17 September 2004.

Background

Winchester’s employment had been terminated on 23 July 2004. He contacted a Centrelink Call Centre on 26July 2004 and was told to get an employment separation certificate and get back to Centrelink to “get the wheels in motion”. Centrelink had no record of this contact and Winchester conceded it was probably more in the nature of a general enquiry. Winchester’s employer was unco-operative and “almost a month” passed before he obtained the certificate. He contacted Centrelink again on 19 and 26 August 2004. He told the Centrelink officer that he had the certificate and that an Industrial Relations mediation regarding a claim by him against his former employer was happening soon. Winchester was advised that there was no point in pursuing NSA until his claim against his former employer was resolved. At the mediation a redundancy was negotiated between Winchester and his former employer. On 17 September 2004 Winchester called Centrelink, advised that an agreement had been reached and was told to come to the Centrelink office. On 21 September 2004 he lodged a claim for NSA. Payments were backdated to the 17 September 2004 contact.

The law

Sections 41 (1) and 42 of the Social Security Administration Act 1999 (the Administration Act) explain that asocial security payment becomes payable to a person on that person’s “start day” and refers to Schedule 2.

Clause 3(1) of Schedule 2 sets out the general rule for start days being the day on which a claim for payment is made, provided the person is qualified for payment on that day. Section 11 of the Administration Act states that a person who seeks a social security payment must make a written claim for the payment. However, the Act also contains provisions which allow a claim to be deemed to have been made.

Section 13(1) of the Administration Act provides for deeming that a person’s start day is the date the person contacts Centrelink, if a claim is lodged within 14 days of the contact. Where a claim is lodged outside the 14 day period but within 13 weeks of the initial contact with Centrelink, the claim may still be deemed to have been made on the date of the initial contact where “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”, pursuant to s.13(3A) of the Administration Act.

Special circumstances preventing lodgement of a claim

Given Winchester’s concession that the 26 July 2004 contact was generic the Tribunal found that 26July 2004 could not be deemed a starting date for Winchester’s NSA entitlements. No receipt number report of the call could have been made by Centrelink. There was no written notice confirming that Winchester had contacted Centrelink on 26 July 2004.

The Tribunal found that Winchester had contacted the Department in relation to a claim for NSA on 19August 2004; had received the requisite written notice acknowledging that the Department had been contacted in relation to the making of his claim; and he lodged a claim for NSA more than 14 days – but less than 13 weeks, after the Department had been contacted.

The Tribunal commented on the Secretary’s reliance on the Departmental Policy “Guide to the Social Security Law: 8.1.1.60 Deemed Claims” and observed that whilst clearly Winchester’s factual circumstances did not come within any of these Departmental Guidelines, they are not exhaustive. The Tribunal considered that “special circumstances” needed to be considered on case by case basis, referring to Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443 at 450. The Tribunal concluded that any failure to consider cases by restricting consideration to only the guidelines specified in the Departmental Policy could operate to defeat the purpose of the legislation and so be inconsistent with the legal principles in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

The Tribunal concluded that there were circumstances which were sufficiently “uncommon” to warrant the description of “special circumstances”. Information provided to Winchester, when he made enquiries of the Centrelink Call Centre, was incorrect in relation to the need for an employment separation certificate and the effect of his industrial relations mediation on a NSA application. Each piece of incorrect advice had contributed to the situation whereby the claim form was not lodged until 21September 2004. However, had the correct advice been given, such a situation would have been avoided. Clearly, incorrect advice in this factual situation, would be an “uncommon” – even “unusual “occurrence. Additionally, the need for citizens to rely on correct Departmental advice being given to them – as waste case for Winchester - has been considered by differently constituted Tribunals to be a “special circumstance”. The Tribunal adopted the observations of Senior Member Handley in Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543 at 552-553, with respect to advice given to social security recipients by Departmental officers:

Any failure to regard the seriousness of the consequences of the giving of wrong advice as not being a circumstance special to the person or persons who have suffered as a result of that advice would be cruel. Citizens are entitled to act upon the advice given to them by representatives of government through its departments and agencies. Citizens also are entitled to have confidence in the advice that they are given by persons in authority and who represent government departments and agencies. Citizens should be entitled to expect nothing less.

The Tribunal found that the incorrect Departmental advice was clearly material to the delay in the lodging of Winchester’s claim for NSA and so was a “special circumstance”.

Formal decision

The matter was remitted with the direction that the Secretary reconsider Winchester’s application for NSA by having it backdated to the date of contact on 19 August 2004.

[I.T.]