Editors --- "Age pension: start date for payment; whether special circumstances; whether lodgment was not reasonably practicable" [2007] SocSecRpr 21; (2007) 9(2) Social Security Reporter, Article 8

• LANGENBERG and SECRETARY TO THE DFaCSIA
• Background
• The issue
• Discussion
• Formal decision

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Age pension: start date for payment; whether special circumstances; whether lodgment was not reasonably practicable

LANGENBERG and SECRETARY TO THE DFaCSIA

(2007/1053)

Decided: 9th February 2007 by R. Perton

Background

Langenberg celebrated his 65th birthday on 17 May 2006. He contacted Centrelink on 29 May 2006 regarding his intention to claim age pension. Centrelink sent a letter acknowledging his contact on the same date, enclosing an age pension claim form. In the letter, Centrelink advised Langenberg that if he lodged his claim for age pension on or before 12 June 2006 and the claim was granted, the pension would be paid to him from 29 May 2006.

Langenberg did not receive this letter from Centrelink or the claim form. At the hearing before the AAT, Langenberg produced evidence of problems encountered by businesses and individuals with delivery of mail in the La Trobe Valley region.

Langenberg contacted Centrelink again on 27 June 2006 regarding his intention to claim age pension. A further letter and claim form was dispatched to him by Centrelink. Langenberg returned the claim form on 6 July 2006 and was granted age pension with effect from 27 June 2006.

Langenberg asked that his pension be back-dated to 29 May 2006. This request was refused.

Centrelink’s decision was affirmed on internal review and by the SSAT. The applicant applied to the AAT for a review of the decision.

The issue

The issue before the AAT was whether Langenberg’s age pension could be backdated to a date prior to 27 June 2006.

Discussion

The AAT noted that, pursuant to ss.41 and 42 of the Social Security (Administration) Act 1999 (the Administration Act), a person can only be paid a social security payment from their start date, which, in the general case is determined under clause 3(1) of Schedule 2 to the Administration Act.

The AAT noted that ss.13(1) and 13(3A) provide for the backdating of a person’s start date in certain circumstances.

In relation to s.13(1) of the Administration Act, the AAT noted that this section allowed for the backdating of a person’s start date where: the person contacts the Department regarding their intention to claim; the Department gives the person a notice acknowledging the contact; and the person lodges their claim within 14 days of contacting the Department.

The AAT considered that, pursuant to s.13(1)(c), the relevant date for backdating a claim is the date that the Secretary gives the person the written notice. In this regard, the Tribunal found that notice can be given to a person without that person physically receiving it. The Tribunal noted that, under ss.28A(1) and 29(1) of the Acts Interpretation Act 1901, a notice can be given to a person by post.

The AAT further observed that s.13(1)(d) of the Administration Act sets the 14 day time limit from when the Department is contacted about a claim. The AAT found that it is not the date when the written notice is received by the potential claimant that is relevant. If the claim is not lodged within 14 days of the date of enquiry, no matter whether it is because the letter was not received or for some other reason, a claimant is unable to access the beneficial effects of s.13(1), allowing for an earlier start date.

The AAT concluded that s.13(1) had no application in this case.

The AAT then considered whether s.13(3A) of the Administration Act could apply in the circumstances of this case, given that Langenberg’s claim was lodged within 13 weeks of his initial contact with Centrelink on 29 May 2006.

The AAT found that, for s.13(3A) to apply, the Tribunal needed to be satisfied that there were special circumstances in the case which resulted in it not being reasonably practicable for Langenberg to lodge his claim for age pension earlier than 6 July 2006.

The AAT considered that judicial comments in relation to the meaning of special circumstances as used in s.1237AAD of the Social Security Act 1991 were relevant when considering whether there were special circumstances in a particular case for the purposes of s.13(3A) of the Administration Act. The AAT noted that Langenberg’s circumstances needed to demonstrate that there was something which distinguished his situation from others in similar circumstances in order for there to be special circumstances in this case.

The AAT found that Langenberg did not take any action to follow up the outstanding claim form for four weeks after his initial inquiry and only did so at the prompting of his wife. The Tribunal noted that there was a plethora of AAT cases where potential or existing social security recipients have missed out on entitlements or have been penalised because they either did not receive, or did not read in detail, items of correspondence from Centrelink.

The AAT further found that, even if Langenberg’s circumstances were special, it was also necessary, unders.13(3A), that it was not reasonably practicable for the claim to have been lodged earlier. In this regard, the AAT found that Langenberg could have taken alternative steps to lodge his claim for age pension earlier than 6 July 2006. The AAT noted that he lived 15 minutes drive from his local Centrelink office, he regularly drove his disabled son around and was retired and therefore did not have commitments that would have prevented him from lodging his claim form earlier.

In the circumstances, the AAT was not satisfied that Langenberg’s circumstances were special or that it was not reasonably practicable for Langenberg to have lodged his claim form earlier. Subsection 13(3A) therefore had no application in the circumstances of this case.

Formal decision

The Tribunal affirmed the decision under review.

[S.O.]