8.1.1.60 Contacting DHS about a Claim

Summary

The deemed claim provisions in sections 13 and 14 of the SS(Admin)Act allow the day of contact about a claim for a social security payment or concession card to be taken as the day the claim is made, provided certain conditions are met.

Conditions for deemed claim

There are certain conditions that must be met if the day of contact about a claim is to be the day of claim for a payment or concession card:

  • DHS is contacted by or on behalf of a person in relation to a claim,
  • the person is, on the day of the contact, included in a class of persons prescribed by the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018,
  • the person is qualified on the day of the contact, and
  • one of the following applies:
    • generally, the person lodges a claim within 14 days after the contact,
    • the person lodges a claim within 13 weeks after the contact, if the person, or a person they care for, or their partner (1.1.P.85), is suffering from a medical condition having a significant adverse effect on the person's ability to lodge the claim, provided the medical condition was continuous, or
    • the person lodges a claim within 13 weeks after the contact, if special circumstances apply to the person's situation, which make it not reasonably practicable for the person to lodge the claim earlier.

If these conditions are satisfied, the person will be deemed to have made their claim on the day on which they contacted DHS. If the claim is granted, the delegate must then go to SS(Admin)Act Schedule 2 to determine the person's start day. In most situations the start day will be the day of contact because the person's claim is taken to have been made on that day.

DHS should ensure that people in vulnerable circumstances who have contacted DHS about a claim understand what they must do to take advantage of the deemed claim provisions.

Act reference: SS(Admin)Act section 13 Deemed claim-person contacting Department about a claim for a social security payment, section 14 Deemed claim-person contacting Department about a claim for a concession card, section 14A Determination for purposes of sections 13 and 14, Schedule 2 clause 3 Start day-general rule

Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018

Contact by or on behalf of a person

Contact with DHS includes, but is not limited to:

  • post,
  • telephone,
  • facsimile,
  • computer equipment, such as by email, or
  • other electronic means.

The intention is to allow anything that would be ordinarily understood as contact with DHS.

It is assumed that:

  • a person making contact on behalf of another person in this context is authorised to do so, and
  • Explanation: Unauthorised contacts will be detected through POI and verification requirements applied when the claim form is lodged. Authorisation does not need to be formal authorisation and people such as family members, a partner, or an advocate may be authorised to contact DHS on someone else's behalf.
  • ANY contact that deals with assistance from DHS is a contact in relation to ANY payment for which the person is qualified. The person does NOT need to mention a specific payment or concession card.

Act reference: SS(Admin)Act section 13 Deemed claim-person contacting Department about a claim for a social security payment, see (1)(a), (2)(a), (3)(a) and (3A)(a), section 14 Deemed claim-person contacting Department about a claim for a concession card, see (1)(a), (2)(a), (3)(a) and (3A)(a)

Prescribed class of persons - vulnerable claimant

From 1 July 2018, the circumstances in which a claim for a social security payment or concession card (PCC, HCC, CSHC) may be backdated to the contact day is limited to a class of persons prescribed by the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018. The class of persons is designed to relate to a person who may not be able to lodge a claim, including providing the required documentation, in a timely manner due to being in vulnerable circumstances. Accordingly, although the intent to claim provisions in sections 13 and 14 of the SS(Admin)Act no longer apply to claimants generally, the provisions continue to apply to vulnerable claimants.

A person in vulnerable circumstances who has a genuine difficulty in providing documentation with a claim is able to lodge the claim and provide any required documentation subsequently. The actual claim day is the claim lodgement day, and the deemed claim day (under the intent to claim provisions) is the contact day where applicable.

Under the Determination, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the 'relevant period' (the period of 8 weeks ending on the contact day), the person is:

  • (a) subject to domestic or family violence,
  • (b) homeless,
  • (c) hospitalised or suffering from a temporary incapacity arising from a medical condition,
  • (d) released from prison or psychiatric confinement,
  • (e) experiencing high stress associated with a relationship separation,
  • (f) a parent of a dependent child born during the relevant period,
  • (g) affected by the death during the relevant period of an immediate family member,
  • (h) a person who entered Australia during the relevant period as a humanitarian entrant to Australia,
  • (i) a person whose usual place of residence is in a remote area, and the person is physically present in the remote area,
  • (j) a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or
  • (k) subject to other special circumstances beyond the person's control.

The expression 'humanitarian entrant to Australia' in paragraph (h) is defined in the Determination as a person who arrives in Australia and the arrival is the first time the person has arrived in Australia as the holder of a humanitarian visa. 'Humanitarian visa' is defined in the Determination as a visa that is a qualifying humanitarian visa specified by the Minister by legislative instrument under subsection 1061JI(2) of the SSAct. The visas specified are:

  • subclass 200 (Refugee),
  • subclass 201 (In-country Special Humanitarian),
  • subclass 202 (Global Special Humanitarian),
  • subclass 203 (Emergency Rescue), and
  • subclass 204 (Woman at Risk).

The expression 'extreme circumstance' in paragraph (j) is defined in the Determination as including, but not limited to, a flood, a fire, an earthquake, and a storm.

Paragraph (k) relates to a person being subject to other special circumstances beyond the person's control, which result in the person being unable to lodge a claim on the contact day. DHS may determine on a case-by-case basis other instances where a claimant is unable to lodge a claim due to being in special circumstances. Examples of where the condition could apply include where the person is:

  • a victim of crime (e.g. possessions stolen),
  • a former recipient of Status Resolution Support Services payment while holding a bridging visa who claims Special Benefit on being granted a temporary protection visa,
  • outside Australia and claiming under an international agreement.

Act reference: SS(Admin)Act section 13 Deemed claim-person contacting Department about a claim for a social security payment, see (1)(aa), (2)(aa), (3)(aa) and (3A)(aa), section 14 Deemed claim-person contacting Department about a claim for a concession card, see (1)(aa), (2)(aa), (3)(aa) and (3A)(aa), section 14A Determination for purposes of sections 13 and 14

Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018

Policy reference: SS Guide 9.2.4 Visa subclasses 200-299 payment eligibility

Qualification on the day of contact

A claim CANNOT be deemed to have been made on the contact day if the person is NOT qualified on that day. If the person is NOT qualified, there is NO effect on the start day for the payment.

Explanation: Note that it is not necessary that the payment be payable on the day of contact for it to be taken as the day on which the claim was made. Payability is relevant to determining the start day of a payment but not the day on which the claim was made.

Explanation: The person may lose qualification for a period after contact on a day on which they were qualified, and before lodgement within the prescribed periods, without losing the right to have the day of contact taken as the day the claim was made. In these cases the person can be granted from the day of contact and, if appropriate, suspended for the period in which qualification is lost.

Qualification rules for individual payments as set out in Part 3 of the SS Guide should be applied.

Example: People claiming NSA would not be qualified for NSA on the day they cease full-time work. If a person phoned that day they would need to make contact again, such as by phoning back, or lodging a claim the following day.

If the contact is by mail or email, the delegate will retrospectively determine whether or not the person was qualified on the day of contact in the usual way.

If the contact is by telephone or in person, the staff member who deals with the person will not be in a position to formally advise whether or not the person is qualified. Therefore, the person must be advised to:

  • lodge a claim within 14 days after DHS was contacted, and
  • contact DHS again if there is any possibility that they are not qualified on the day of that contact but will be qualified on another day before they are able to lodge the claim.

If a contact is made by fax or email the day the document reached DHS may be taken to be the day of contact even if it was not actually read by a staff member until a later day.

Explanation: The fax or email may have reached DHS on a weekend or public holiday.

Where there are multiple contacts the first contact day on which a person is qualified is the day from which they may be paid provided all other conditions are met.

Act reference: SS(Admin)Act section 13 Deemed claim-person contacting Department about a claim for a social security payment, see (1)(b), (2)(b), (3)(b) and (3A)(b), section 14 Deemed claim-person contacting Department about a claim for a concession card, see (1)(b), (2)(b), (3)(b) and (3A)(b)

Lodgement within 14 days of the day of contact

The general rule for a payment start day to be backdated is that the claim must be lodged in the manner and form approved by the Secretary on or before the 14th day after the day of contact with DHS in which the claimant advised an intention to make a claim. By claiming within this time period, the start day of the payment may be the day of first contact, subject to other payment criteria being satisfied.

If the 14th day falls on a weekend or public holiday, the next working day after the weekend or public holiday is taken to be the 14th day.

Lodgement within 13 weeks of the day of contact due to a medical condition

A claim may be lodged within 13 weeks of the day of contact if the delegate is satisfied that:

  • between the day of contact and the day the claim was lodged, the claimant, their partner, or a person the claimant was caring for, was continuously suffering from a medical condition, and
  • the medical condition or circumstances relating to it had a significant adverse effect on the claimant's ability to lodge the claim earlier.
  • Explanation: Delegates should adopt a beneficial approach to the terms 'partner' and 'caring'. Anyone who is a partner for any other purposes under social security law is a partner for this purpose and the claimant may be taken to have been caring for a person for whom they were providing any significant support. A parent should be taken to be caring for a child.

Medical conditions must be supported by a medical certificate confirming that the condition was continuous between the day of the contact and the day the claim was lodged. The requirement that the medical condition be suffered continuously between the day of contact and the day of lodgement means that a medical condition contracted after the day of contact does not allow any delay in the day of lodgement.

The medical certificate may also address the question of whether the condition had a significant adverse effect on the claimant's ability to lodge the claim. If the medical certificate does not answer this question, the delegate may determine the question.

Explanation: The test for this purpose is whether the condition had a 'significant adverse effect'. This sets a lower standard than the requirement in SS(Admin)Act Schedule 2, that a medical condition must be the 'sole or principal cause' of delay in lodging a claim. A medical condition that creates any real difficulty for the claimant in relation to any action required to lodge a claim may be regarded as meeting the requirement.

Example: Joseph broke his leg on 1 July and contacted DHS on the same day in relation to making a claim for a payment, as he is unable to do his normal job. Joseph is unable to catch public transport or drive a car. All Joseph's relatives live interstate and all his friends work full-time. The claim form is mailed to Joseph, which he completes. Joseph is unable to mail the claim back or attend a DHS office. Joseph finally lodges his claim on 15 August when his plaster is removed.

Joseph is able to have his claim taken from 1 July (the day of contact which becomes the deemed day of claim) as the medical condition he was suffering had a significant adverse effect on his ability to lodge his claim. Joseph had a medical condition during the whole period.

Example: Ida has been subject to family violence and separated from her husband on 1 July. Ida contacted DHS on 5 July in relation to making a claim. When she contacted DHS her young daughter Kate had chicken pox. Ida was mailed a claim form. Ida lodges her claim on 20 July.

Ida's claim would be taken from 5 July (i.e. her day of contact). It is not possible for Ida to leave her sick daughter. It is also unrealistic to expect someone to mind the daughter while Ida visits DHS because the daughter has a contagious illness. However, if Ida had not lodged a claim until 5 or 6 weeks later, this would not satisfy the deemed claim provision as the child would have recovered from her chicken pox after approximately 3 weeks.

Act reference: SS(Admin)Act section 13 Deemed claim-person contacting Department about a claim for a social security payment, see (2)(d), (2)(e), (3)(d) and (3)(e), section 14 Deemed claim-person contacting Department about a claim for a concession card, see (2)(d), (2)(e), (3)(d) and (3)(e)

Lodgement within 13 weeks of day of contact due to special circumstances

A claim may be lodged within 13 weeks of the day of contact if the delegate is satisfied that there are special circumstances in the particular case which prevented the claimant from lodging the claim within 14 days of contact.

Special circumstances in which it may be reasonable to lodge a claim within 13 weeks of contact could include:

  • a person having practical difficulties in meeting the 14 day time frame as a result of living in a remote area, or
  • a person residing in a country with which Australia has a social security agreement, where there are reasons why the person could not lodge within the 14 day period, or
  • Example: Where there are extended postal delays, and/or where the person was unable to lodge in time with the competent institution in the agreement country.
  • an emergency interfering with a person's plans to lodge within the 14 day period, such as a natural disaster,
  • Example: A person's home destroyed by a bushfire.

To determine if special circumstances apply to a situation, it is necessary to consider the totality of the circumstances relating to the particular case.

Act reference: SS(Admin)Act section 13(3A) Deemed claim-person contacting Department about a claim for a social security payment, section 14(3A) Deemed claim-person contacting Department about a claim for a concession card

Deemed claim day & start day

Once a decision is made that the day of claim would be the day of contact under section 13 or 14, a decision can be made as to a claimant's start day in accordance with SS(Admin)Act Schedule 2, Part 2 that provides the rules for working out the start day. The general rule in clause 3 states that if the person is qualified on the day on which the claim is made, this day will be the start day.

Incapacitated claimants

SS(Admin)Act Schedule 2, Part 3 provides exceptions to the general rule, where a person's start day may be earlier than the day on which the claim is made. Clause 11 provides an exception to the general rule in the case of incapacitated claimants.

Subclause 11(1) deals with situations where the claim is made within 5 weeks after the day the incapacity begins while subclause 11(2) deals with claims made more than 5 weeks after that day.

Example 1: Mr Brown contacted DHS on 15 April regarding the payment of SA. Mr Brown then lodged a claim for SA on 25 April. It is assumed Mr Brown has been qualified for SA at all times since becoming incapacitated for work as a result of a medical condition on 25 March. Section 13 can first be applied to deem the day of claim to be 15 April. Subsequently, Schedule 2, Part 3, subclause 11(1) can be applied to determine 25 March as the start day of Mr Brown's payment.

Example 2: Ms Jones contacted DHS on 9 November regarding the payment of SA. Ms Jones then lodged a claim for SA on 15 November. In the absence of conflicting evidence, it is assumed Ms Jones has been qualified for SA at all times since becoming incapacitated for work as a result of a medical condition on 30 September. Section 13 can first be applied to deem the day of claim to be 9 November. Subsequently, Schedule 2, Part 3, subclause 11(2) can be applied to determine 12 October as the start day of Ms Jones' payment.

Last reviewed: 20 September 2018