And: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Decision: The Tribunal affirms the decision under review.

SOCIAL SECURITY - newstart allowance - start date - whether backdating possible

Administrative Appeals Tribunal Act 1975 s 34B

Social Security (Administration) Act 1999 s11(1), 13(1), 16, 41(1), 42, clause 3(1) of schedule 2

This is an application by Adam Timothy Clark (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 October 2003. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 3 September 2003 to grant newstart allowance to the applicant from 5 August 2003 and not from an earlier date.

Under s 34B of the Administrative Appeals Tribunal Act 1975 (the Act), the Tribunal concluded that the issues for determination on the review of the decision could be adequately determined in the absence of the parties. Therefore, with the consent of the applicant and the Secretary to the Department of Family and Community Services (the respondent), the Tribunal decided to make its decision by considering the documents lodged by both parties and without holding a hearing.

The Tribunal received into evidence the documents lodged under s37 of the Act (T1-T17).

The applicant was born on 8 May 1975. On 4 August 2003 he returned to Australia after a visit to the United States of America. On 5 August 2003 he contacted Centrelink by telephone in relation to newstart allowance, and lodged a written application on 14 August 2003. On 29 August 2003 the applicant was granted newstart allowance with effect from 5 August 2003.

On 29 August 2003 the applicant sought review of the decision to grant newstart allowance from 5 August 2003, claiming that the start date should have been 4 August 2003, the date of his arrival in Australia. On 3 September 2003 an authorised review officer affirmed the decision.

On 12 September 2003 the applicant sought review of the authorised review officer's decision by the SSAT. Following the SSAT decision, the applicant lodged an application with the Tribunal on 13 November 2003 for review of the decision.

The issue before the Tribunal is whether the start date for the payment of newstart allowance should be the date the applicant contacted Centrelink or the date he arrived in Australia.

In his evidence to the SSAT the applicant said that he arrived in Sydney from Los Angeles around 6.30am on 4 August 2003. He lodged documentary evidence that he took the 10.05am train from Sydney to Tamworth and the 4.35pm coach from Tamworth to Manilla. He would have arrived in Manilla at about 5.30pm. The applicant told the SSAT that on arrival in Manilla he attempted to telephone Centrelink at 5.30pm to arrange newstart allowance, but a recorded message informed him that the office was closed and that he should contact Centrelink the next day, which he did.

The applicant told the SSAT that on a previous occasion he had telephoned the Centrelink number and an officer was available until about 7 or 8pm. He said that the legislation should allow Centrelink discretion to backdate payments to commence when a person arrives in Australia. He stated that in his case the decision was unfair and wrong, and that he had been penalised because he had been unable to contact a Centrelink officer on the day of his arrival.

In a written submission dated 8 June 2004 the applicant stated that the legislation should be changed. He noted that if a person arrived in Australia on the night before Easter or other holidays, Centrelink offices would be closed for several days, which would disadvantage that person by delaying their entitlement to government benefits. He said that in this application commonsense should prevail, particularly as the amount in question was only about $30.

Section 11(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a person must make a claim for a social security payment to be eligible for that payment. Section 16 of the Administration Act sets out the steps involved in making a claim.

Section 41(1) of the Administration Act provides that a social security payment becomes payable on the person's start day, and s 42 provides that the start day is calculated in accordance with clause 3(1) of Schedule 2 of the Administration Act:

3.(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.

Section 13(1) of the Administration Act provides a mechanism for deeming that a person's start day may be the date the person contacts Centrelink:

13.(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.

In a statement of facts and contentions dated 29 April 2004 on behalf of the respondent, Ms K. Navarro, a Centrelink advocate, stated that there was no dispute regarding the facts as outlined by the applicant. She submitted that there was no legislative provision that would enable the applicant to be granted newstart allowance earlier than 5 August 2003, the date he contacted Centrelink.

In reaching its decision the Tribunal takes into account the relevant documentation including the written submissions.

There is no dispute that the applicant arrived in Australia on 4 August 2003. He telephoned Centrelink after business hours and received a recorded message advising him that the office was closed. He was therefore unable to inform Centrelink of his wish to apply for newstart allowance. He contacted Centrelink by telephone on 5 August 2003 and spoke to a Centrelink officer. He lodged an application for newstart allowance on 14 August 2003.

Under clause 3(1) of Schedule 2 of the Administration Act the applicant's start day in relation to newstart allowance is the day on which he made the claim. However, under s 13(1) of the Administration Act he is taken to have made the claim on the day on which he actually contacted Centrelink, which was 5 August 2003.

For these reasons the Tribunal finds that the earliest date on and from which the applicant could be paid newstart allowance is 5 August 2003.

19. The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of hearing: Nil: decision on the papers

Date of decision: 17 June 2004

Advocate for applicant: Self-represented

Advocate for respondent: Ms K. Navarro, Centrelink