The Attorney-General's Department has advised that, as a general principle, the Department has NO duty to volunteer information in relation to social security entitlements (section 23(1)-'social security entitlement'). It is rare that failure to provide advice will be treated as negligent misstatement.
Exception: If there is a practice to provide such advice in the circumstances under consideration and the person concerned was aware of, and relied on, the practice.
Act reference: SSAct section 23(1)-'social security entitlement'
The question of negligence often arises if the Department fails to invite a person to claim a benefit.
Example: The Department has a policy of issuing Age claims to income support recipients who reach age pension age (section 23(5A) to 5(D)).
There is generally no negligent misstatement in these cases as the Department's actions in automatically advising recipients of their likely entitlements are entirely voluntary. The Department has never advertised or otherwise suggested that it has voluntarily assumed a strict duty to inform recipients of their entitlements unless individually approached by such recipients. The first difficulty for a recipient is to show that they were aware of the Department's practice and relied on that practice as a basis for their actions. Secondly, even if the recipient relied on this, the recipient would have to show it was reasonable to rely on the Department's voluntary practice without querying whether they were entitled to another payment.
Explanation: Although there is a practice of issuing Age claims to income support recipients who reach age pension age, it cannot be said that the recipient concerned was aware of the practice, and relied on the failure to issue the claim, as a positive statement that the recipient was not entitled to Age.
To undertake a duty to invite a claim whenever information before the Department suggests that a person MAY have an entitlement, is too onerous a duty given the existing resources and workloads of departmental officers.
Act reference: SSAct section 23(5A) to 5(D) Pension age
Policy reference: SS Guide 220.127.116.11 Duty of Care
Last reviewed: 11 February 2013