Editors --- "Newstart allowance: commencement date of benefits; special circumstances; not reasonably practical to lodge a claim earlier" [2007] SocSecRpr 27; (2007) 9(3) Social Security Reporter, Article 1

• HUNTER and SECRETARY TO THE DEWR
• Background
• The issue and legislation
• Special circumstances
• Not reasonably practicable to lodge
• Formal decision

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Newstart allowance: commencement date of benefits; special circumstances; not reasonably practical to lodge a claim earlier

HUNTER and SECRETARY TO THE DEWR

(2007/1282)

Decided: 2nd May 2007 by L. Hastwell

Background

In November 2005, Hunter was injured at work such that she was unable to earn an income for a period of time. Following her workplace injury, Hunter attended a Centrelink office accompanied by a friend to ascertain what benefits she was entitled to receive. Hunter gave evidence that on 24 November 2005,when she attended the office, Centrelink had told her that she needed a birth certificate before she could lodge a claim for payment. Her friend had queried the assertion but the officer had been adamant that one of the prerequisites for lodging a claim was that a birth certificate was required. Hunter told the Tribunal that she had left the office without a claim form. Following this advice, Hunter had immediately applied for her birth certificate which required her to write interstate. Whilst Hunter had received a letter from Centrelink dated 24 November 2005 advising her to lodge a claim before 8 December 2005 if she wanted to be paid from the date that she had approached the Department, she believed that there was no point making the claim until her birth certificate had arrived because of the Centrelink advice she had received. As soon as her birth certificate arrived she presented at the Centrelink office on 16 January 2006 and lodged the claim for newstart allowance. In the interim period, Hunter was left without any source of income and had lived off borrowings from her father. At the time of the Tribunal hearing, Hunter had resumed a position in the workforce and was gradually paying back the $1500debt to her father.

The issue and legislation

The issue in this case was whether Hunter’s situation came within s.13(3A)(e) of the Social Security (Administration) Act 1999(the Administration Act).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 reasonable satisfied that, in the special circumstances of the case, it was not reasonably practicable to lodge the claim earlier;

the person is taken to have made the claim for the social security payment on the day on which the Department was contacted.

Special circumstances

The Tribunal noted that it was common ground between the parties that Hunter had satisfied the first four criteria as set out ins.13(3A) of the Administration Act. The issue to be determined was whether in the special circumstances of the case it was not practical for Hunter to lodge her claim until the date in January. If she satisfied this provision she was entitled to have her payments backdated to 24 November when she first approached Centrelink. The Tribunal first considered whether there were any special circumstances relying on the decisions of Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 that hardship or unfairness should be sufficient to justify departure from the general rule in the particular case. The Tribunal concluded that considerable unfairness and hardship arose from the erroneous information given by the Centrelink officer that led Hunter to believe that she could not lodge a claim until she had obtained her birth certificate. The Tribunal found that Hunter had suffered hardship resulting in her borrowing funds to support herself during the Christmas period.

Not reasonably practicable to lodge

The Tribunal then went on to consider whether in the special circumstances of the case ‘it was not reasonably practicable’ for Hunter to lodge her claim earlier. After considering relevant authorities dealing with the concept of ‘reasonably practicable’ in the context of other legislation, the Tribunal concluded that whilst it was physically possible for Hunter to lodge a claim, based on the erroneous Centrelink advice, it was not reasonably practicable for Hunter to lodge a claim until such time as she had the birth certificate in her hand. She had been told this was the key document relevant to her ability to lodge a claim.

Formal decision

The Tribunal set aside the decision under review and substituted a decision that the start date for payment of newstart allowance to Hunter should be 24November 2005.

[G.B.]