ALEXANDER ROTHSAY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 226

[2012] AATA 226  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/0765
Re	ALEXANDER ROTHSAY
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Dr A Frazer, Member
Date	18 April 2012
Place	Perth

Decision Summary

The Tribunal affirms the decision under review.

.....(sgd) Dr A Frazer..........................

Member

Catchwords

SOCIAL SECURITY – qualification requirements – date of payment - decision under review affirmed

Legislation

Social Security Act 1991 (“the Act”), Social Security (Administration) Act 1999 (“the Administration Act”).

Cases

REASONS FOR DECISION

Dr A Frazer, Member

18 April 2012

INTRODUCTION

1. Mr Alexander Rothsay, (“the applicant”), who is 50 years old, has been in receipt of disability support pension (“DSP”) since 19 March 2010.

2. The applicant first lodged a claim for DSP on 17 April 2009 for his low back pain and osteoarthritis of the elbow.  On 28 May 2009 a Centrelink officer rejected his claim.  The applicant was informed by Centrelink in writing of this decision.

3. The applicant requested a review of this decision which was affirmed by a  Centrelink authorised review officer (“ARO”) who notified the applicant in writing on 8 June 2009.

4. On 19 March 2010 the applicant contacted Centrelink about a new claim for DSP and lodged a claim on 31 March 2010.  On 30 April 2010 the applicant was granted DSP from 19 March 2010.

5. On 10 September 2010 the applicant requested a review of the decision not to pay him the DSP from 17 April 2009.  On 19 October 2010 a Centrelink ARO affirmed the decision to grant the applicant DSP from 19 March 2010 and not an earlier date.

6. On 19 November 2010 the applicant applied to the SSAT for a review of Centrelinks’s decision of 19 October 2010 and on 8 February 2011 the SSAT affirmed the decision under review.

7. On 14 March 2011 the applicant applied to this Tribunal for a review of the  SSAT’s decision that the applicant should be paid DSP from 19 March 2010 and not from an earlier date.

   THE RELEVANT LEGISLATION

8. Section 129 Administration Act provides that a person affected by a decision of an officer made under social security law may apply to the Secretary (Centrelink) for a review of that decision.

9. Section 109 Administration Act sets out the date of effect of a favourable determination resulting from an application of review of an original decision made in relation to social security payment.

10. Subsection 109(1) provides that, if a notice is given to the person informing the person of the original decision, and the person applies for a review of that decision within 13 weeks after the notice is given, then, if a favourable decision is made as a result of the application, it takes effect on the day on which the original decision took effect.

11. Subsection 109(2) provides that, if notice is given to the person of the original decision, and the person applies for a review of that decision more than 13 weeks after the notice is given, then, if a favourable decision is made as a result of the application, it takes effect on the day the application for review was made.

12. Subsection 109(3) provides that if the person is not given notice of the original decision, and the person applies for a review of that decision, then, if a favourable decision is made, it takes effect on the day on which the original decision took effect.

13. Subsection 11(1) Administration Act provides that a person who wants to be granted a social security payment must make a claim.  Subsection 16(1)  Administration Act provides that a person makes a claim by lodging a written claim.

14. Section 13 Administration Act provides that under certain circumstances a person who contacts Centrelink about a claim for a social security payment may be deemed to have made a claim on the day the person contacted Centrelink about making the claim.

15. Section 42 Administration Act provides that the start date of a person’s social security payment is the day worked out in accordance with Schedule 2 to the Administration Act.  Subclause 3 (1) of Schedule 2 provides that if a person makes a claim for a social security payment and the person is qualified for the payment on the day on which the claim is made, then the person’s start day is the day on which the claim is made.

    THE EVIDENCE

16. The evidence before the Tribunal comprised:

    ·the “T Documents” (T1-T20), pp 1 – 265, lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

    ·Exhibit A1, letter from Dr Michael Beinhart, dated 4 November 2002,  tendered by the applicant

    ·Exhibit A2, letter from Mr Pereira, Chiropracter, dated 12 November 2002, tendered by the applicant

    ·Exhibit A3, letter from Dr MacDonald, GP, dated 3 December 2002, tendered by the applicant

    ·Exhibit A4, letter from Dr Coldham, Orthopaedic Surgeon, dated 7 January 2003, tendered by the applicant 

    ·Exhibit A5, letter from the applicant provided to the Tribunal on the day of hearing, 29 February 2012, requesting an extension of time. Following discussion with the applicant and the Centrelink representative it was decided by the Tribunal  to proceed with the hearing.

    The applicant’s evidence

17. The applicant told the Tribunal that he felt behind the “eightball” as he had recently returned to Western Australia from New Zealand where he had been visiting for a few months.  The applicant told the Tribunal he had recently managed to connect his phone and obtain Internet access.  The applicant said he has been receiving advice from lawyers on 3 separate legal type matters.  The applicant said he wants to be paid DSP from 17 April 2009 which was when he first applied for DSP.

18. The applicant said he did not agree with the SSAT decision. The applicant agreed with the first 7 points documented by the SSAT in its decision under the heading “History”. 

    ANALYSIS

19. The Tribunal considered the evidence provided by the applicant and the written documentation provided by Centrelink.  It is not in dispute that the applicant first applied for DSP on 17 April 2009.  This claim was rejected and the applicant was informed in writing of this decision by Centrelink. (p95, T documents).  It is not in dispute that the applicant requested a review of this decision.  This decision was affirmed by a Centrelink review officer and the applicant was informed in writing.  (p97, T documents).

20. It is not in dispute that the applicant had ongoing contact with the Spearwood Centrelink office and, as examples, discussed the Newstart Allowance on 10 June 2009 and 1 July 2009 (pp 189 – 190, T documents.)

21. It is not in dispute the applicant made a new claim for DSP on 19 March 2010.  (p183, T documents).  The applicant has been in receipt of DSP since 19 March 2010.

22. The effect of s109 of the Administration Act in these circumstances is that the DSP is payable to the applicant from 19 March 2010 and not from an earlier date.   

    DECISION

23. For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

....(sgd) T Freeman.............

Associate

Dated 18 April 2012

Date(s) of hearing	11 August 2011
Applicant	In person
Advocate for the Respondent	Mr P Maishman