Angelica Filardo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 604
[2012] AATA 604
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2012/0270 |
| Re | Angelica Filardo |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | Dr R McRae, Member |
| Date | 6 September 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
........[sgd].......................................
Dr R McRae, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – ulcerative colitis – whether fully diagnosed, treated and stabilised – whether Centrelink owes a Duty of Care to advise clients of payments available – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 section 37
Social Security Act 1991 section 94(1), Schedule 1B
Social Security (Administration) Act 1999 sections 8, 13(1), 15(1) and (2), 39(1), 41(1), 42, 109(2), Schedule 2 Clauses 3(1), 11
CASES
Milroy v Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
SECONDARY MATERIALS
A Guide to the Tables for the Assessment of Work Related Impairment for Disability Support Pension paragraphs 4 and 5
REASONS FOR DECISION
Dr R McRae, Member
6 September 2012
On 25 November 2009, Ms Angelica Filardo, the Applicant, advised Centrelink of her intention to claim a disability support pension (DSP). Centrelink acts as the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs, the Respondent. On 8 December 2009 the Applicant lodged a claim for DSP. On 19 January 2010 a Centrelink officer accepted the Applicant’s claim. The start date of the DSP was 25 November 2009; the date the Applicant was deemed to have lodged a claim.
On 4 October 2011, the Applicant sought a review of Centrelink’s decision to pay DSP from 25 November 2009. A Centrelink authorised review officer (ARO) affirmed the decision on 25 October 2011. The Applicant sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 5 January 2012 the SSAT affirmed the ARO’s decision. The Applicant now seeks a review of the SSAT decision by this Tribunal.
The issues before the Tribunal are whether the Applicant:
(a)was entitled to DSP according to the requirements of s 94(1) of the Social Security Act 1991 (the Act) at any time prior to the deemed date of the claim, 25 November 2009;
(b)requested a review of the decision dated 19 January 2010 within 13 weeks of notice of the decision; and
(c)was owed a duty of care by Centrelink to advise her of her potential entitlement to DSP.
The Tribunal’s decision is that the Applicant is not entitled to DSP prior to 25 November 2009. There is no evidence that the Applicant requested a review of the decision dated 19 January 2010 within 13 weeks of receiving notice of that decision. There is no requirement for Centrelink to provide advice to claimants about any particular available payment.
The Applicant was self-represented. Mr Tim Noonan, a solicitor from Centrelink, represented the Respondent. The hearing was conducted by telephone at the applicant’s request. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents).
BACKGROUND
The Applicant is a 27-year-old woman who was born in Italy. She left school at the completion of year 10, at 15 years of age. She has a medical history of severe ulcerative colitis (UC) which was diagnosed in September 2002. About this time and the following years the Applicant had very limited family support. Her parents were divorcing and her father had no English. Her grandparents were elderly and unwell. Her mother lived away from her and was caring for an intellectually disabled sister; this sister received DSP. The Applicant had no connection with her mother and sister and rarely heard from them.
Following a medical assessment, Dr Goh of Health Services Australia provided a report dated 3 September 2004, which concluded that the Applicant was temporarily unfit for full time open market employment.
The Applicant submitted a combined claim for sickness allowance, new-start allowance (NSA), youth allowance (YA) and DSP on 28 May 2004. In her combined claim, the Applicant claimed that she was disabled and uncertain of her ability to either work or study due to UC as she had been housebound for two years. She also claimed that she was undertaking homeopathic remedies and undergoing cranial sacral (sic) therapy.
The Applicant received YA from 19 May 2004 to 2 June 2005. She received NSA from 22 January 2007 to 24 November 2009. The Applicant was paid DSP from 25 November 2009. She submitted medical certificates advising of her unfitness for work, for two-month periods from August 2004 to July 2005, and for three-month periods from May 2007 to 18 February 2008, from 1 August 2008 to 31 October 2008, 30 October 2008 to 29 January 2009 and 1 June 2009 to 2 December 2009.
The Applicant had a Job Capacity Assessment (JCA) on 16 January 2008. The job capacity assessor assessed her UC as not fully treated or stabilised. At a subsequent JCA, on 24 April 2008, a job capacity assessor assessed her depression as not fully treated or stabilised. A third JCA, conducted on 11 December 2009, included consideration of a medical report by a Dr Daly, dated 27 November 2009. On this occasion, the job capacity assessor found the UC to be fully treated and stabilised and assessed the Applicant’s condition at 30 points under Table 11.2 of the Tables For The Assessment Of Work‑Related Impairment For Disability Support Pension (the Impairment Tables) in Schedule 1B (as it then was) of the Act.
The Applicant experiences frequent bloody diarrhoea, which interferes with her day-to-day activities and sleep, and effectively causes her to be housebound. The Applicant shares a house with a male best friend, who provides substantial caring support. She has experienced side effects of recommended medical treatment, undertaken homeopathic treatment and refused to consult a gastroenterologist. The Applicant eventually abandoned any treatment in 2007 and pursued other unproven treatments with no success at symptomatic relief.
It is common ground that the Applicant is entitled to DSP from 25 November 2009.
LEGISLATION
Sections 8, 13(1), 15(1) and (2), 39(1), 41(1), 42 and 109(2) of the Social Security (Administration) Act 1999 (the Administration Act) should be taken into account in reaching a decision.
8 Principles of administration
In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i) the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
…
13 Deemed claim—person contacting Department about a claim for a social security payment
(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.
…
15 Deemed claim—incorrect or inappropriate claims
(1)For the purposes of the social security law, if:
(a) a person makes an incorrect claim; and
(b) the person subsequently makes a claim for a social security payment for which the person is qualified; and
(c) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.
(2) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a) the claim is for a social security payment, other than a supplementary payment; and
(b) when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.
…
39 Deemed refusal of claim
(1) … if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the day on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.
….
41 Commencement
(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
…
42 Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
109 Date of effect of favourable determination resulting from review
...
(2) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
…
Clauses 3(1) and 11 in Schedule 2 of the Administration Act further provides that:
3 Start day--general rule
(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.
…
11 Incapacitated claimant
(1) If:
(a) a person becomes incapacitated for work as a result of a medical condition; and
(b) the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and
(c) the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;
the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.
(2) If:
(a) a person becomes incapacitated for work as a result of a medical condition; and
(b) the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and
(c) the Secretary is satisfied that:
(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and
(ii) the medical condition was the sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began;
the person's start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.
Section 94(1) of the Act provides that:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
Chapter 1 of the Guide to the Tables for the Assessment of Work‑Related Impairment of Disability Support Pension (the Guide) provides that:
Work is defined in section 94(5) of the Social Security Act 1991. For these purposes, work should be for at least 15 hours per week at or above the relevant minimum wage and should exist in Australia, even if not within the person's locally accessible labour market.
…
Paragraphs 4, and 5 of The Introduction to the Impairment Tables provide that:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. (emphasis added)
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
…
APPLICANT’S SUBMISSIONS
The Applicant stated that she had seen the SSAT decision. She stated that Centrelink knew I was unwell and should have told me I should be on DSP. Centrelink had pushed me to work despite severe physical illness and threatened to cut all [my] payments. She attended her appointments but it took a lot out of me. She was too ill to drive, and was up night and day with rectal bleeding due to her UC, complicated by malnutrition. She considered that she may have injured myself, if she obtained a job, due to no concentration, chronic fatigue and depression. She had no life, no social life and was housebound. She was a living zombie. She had over 85 episodes of diarrhoea per day.
The Applicant considered her UC was fully treated and stabilised after 2002 because she had been on the same medications since 2002, even though she had tried Imuran in July 2008 for only about two weeks and had developed pancreatitis. She did not have a good experience with her interactions with Centrelink. She had asked Centrelink on numerous occasions for the payment for me and had received claim forms for NSA. She had believed what Centrelink had said, until she made further investigations, which alerted her to the existence of DSP.
Previously, the Applicant had been unaware of DSP. She had never heard the words DSP despite living with her mother and sister, following her parent’s divorce. Her mother had never told me about DSP. She had asked her mother about DSP in late 2009. She now believed she was qualified for DSP years before she submitted a claim for DSP. She could not understand why she was pushed to obtain a job, and advised by Centrelink that her NSA would stop if she didn’t find a job. She had no new evidence about her eligibility for DSP.
RESPONDENT’S SUBMISSION
The Respondent submitted that the Applicant’s medical conditions were not fully documented, diagnosed conditions which had been investigated, treated and stabilised prior to 25 November 2009 (the qualifying period), as required by the Act. The Applicant did not achieve the required 20 impairment points prior to 25 November 2009. Therefore, the Applicant failed to satisfy s 94(1) of the Act. The Applicant had not raised the issue of DSP prior to November 2009. There was no requirement for Centrelink staff to advise her of the various payments to which she may be entitled.
FINDINGS
The Applicant has received YA from 19 May 2004 to 2 June 2005. She has received NSA from 22 January 2007 to 24 November 2009. She contacted Centrelink enquiring about DSP on 25 November 2009. She lodged her claim for DSP on 8 December 2009. This is within 14 days of contacting Centrelink on 25 November 2009, as required by s 13(1)(d) of the Administration Act. Therefore, Centrelink correctly deemed that she qualified for DSP on 25 November 2009.
The Tribunal accepts that the Applicant has experienced fluctuating symptoms, some of them very severe, consistent with flare-ups of UC, since July 2002. The Tribunal notes the multiple medical certificates, over the period of UC symptoms, indicating the Applicant’s inability to work or study. However, the Applicant’s claims for NSA, on 8 February 2007, and DSP, on 25 November 2009, were made after five weeks from the onset of incapacity. Therefore, Cl 11(1)(b) in Schedule 2 of the Administration Act cannot be enlivened.
In evidence, when asked if UC was the sole or principle reason for not lodging a claim for DSP, the Applicant answered Yes and no. The Applicant had no answer when asked if someone could have telephoned Centrelink to ask for a DSP claim form to be sent to her. The Tribunal considers that the Applicant’s best friend was in a position to obtain and or lodge forms on behalf of the Applicant. There is no evidence that the Applicant’s UC was the sole or principle cause of the Applicant’s failure to make a claim for a benefit. Thus, Cl 11(2)(c)(ii) in Schedule 2 of the Administration Act also fails, such that the commencement date cannot be brought to four weeks earlier than 25 November 2009.
Centrelink notified the Applicant of the success of her claim for DSP on 19 January 2010 by letter. She then received DSP from 25 November 2009. There is no evidence of communication with Centrelink, requesting a review of the start date for the DSP payment, prior to 4 October 2011. Therefore, s 109(2) of the Administration Act applies as 4 October 2011 is more than 13 weeks from the notice date of 19 January 2010. Therefore, any alteration to the commencement date can only be from the date of the application for review, which is after the date of commencement of payment of her DSP.
The Applicant lodged a combined claim form, which referred to DSP, on 28 May 2004, as indicated by the Centrelink date-stamp on the document. However, the Tribunal notes that the Applicant dated the form 28 May 2005. Given that the combined claim form was accompanied by a medical certificate by Dr V Salib dated 25 May 2004, which also had the Centrelink date-stamp of 28 May 2004, the Tribunal finds that the date of lodgement is 28 May 2004. In the combined claim form, the Applicant did not indicate the preferred payment.
After the Applicant submitted this form, the Applicant received YA. There is no evidence of any objection to the payment of YA. There is no evidence of any decision related to a potential DSP claim following lodgement of the combined claim form. Therefore, under s 39(1) of the Administration Act, given that Centrelink did not make a determination regarding a DSP claim within 13 weeks of the Applicant lodging the combined claim form, that is by 27 August 2004, it can be taken that there is a deemed refusal of a DSP claim.
Centrelink possessed information that the Applicant had UC from at least 2002. The Applicant submitted medical certificates which contained information about future treatments intended to treat UC. The Applicant’s condition, at the time of medical assessment by Dr Goh of Health Services Australia in September 2004, was temporary. There is no evidence supporting the case that the Applicant’s UC was fully treated and stabilised, as required under the Introduction to the Impairment Tables, prior to the medical assessment associated with her claim for DSP on 25 November 2009.
In January 2007, the Applicant claimed NSA. She was qualified for NSA. Thus, the application of s 15(2)(b) of the Administration Act means that the claim for NSA cannot be considered a claim for DSP. There is no evidence that the Applicant opposed payment of NSA at the time it was granted. There is no evidence that the Applicant was qualified for DSP in January 2007. A medical certificate completed by a general medical practitioner, Dr S Schwarz, dated 16 May 2007, states no symptoms. However, Dr Schwarz’s report states the prognosis as uncertain. The Treatment section states refer SPECIALIST, indicating that, at that time, the condition cannot be regarded as stabilised or fully treated.
A JCA performed by Ms B Benson of Mission Australia on 16 January 2008 states: Client is seeking the help of natural medicine/naturopaths in an attempt to resolve her medical condition. A further medical appointment was scheduled for 18 February 2008. This indicates that at that time the condition cannot be regarded as stabilised or fully treated. Subsequent notes in medical certificates state that the condition is Temporary or Recurring. There is no evidence of a medical assessment, prior to the JCA associated with the 25 November 2009 claim for DSP, indicating that the UC was fully treated and stabilised. In the absence of medical evidence, the Tribunal cannot now determine a possible earlier date of qualification for DSP.
The Applicant’s sister has been receiving DSP over the last few years. The Applicant has completed the combined claim form with, inter alia, the words Disability Support Pension written on the front of the form. This form also states [t]his form should be accompanied by the booklet: Information you need to know about your claim for Sickness Allowance, Newstart Allowance, Youth Allowance, Disability Support Pension, Mobility Allowance. If you don’t have this booklet, call Centrelink on 13 2717. The Tribunal must infer that the Applicant has an understanding of the existence of DSP.
There is no evidence that the Applicant made any enquiry related to her ability to claim DSP prior to 25 November 2009. Centrelink did not have any reason to consider that the Applicant was qualified for DSP until she submitted a claim for DSP and was assessed to have met the legislative requirements for DSP. Section 8 of the Administration Act provides that Centrelink need only provide general advice to members of the public about opportunities for income support and social security payments. As stated in Milroy v Secretary, Department of families, Housing, Community Services and Indigenous Affairs [2011] AATA 488, at [16] and [19]:
Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment. Moreover, Centrelink is not required to advise a client that they must fill in any additional forms. … Centrelink is not responsible for informing … the public at large that he or she may be entitled to a social security payment, ….
The Applicant contacted Centrelink about a DSP claim on 25 November 2009 on the basis of her diagnosis of UC dating from September 2002. The Applicant lodged a claim for DSP on 8 December 2009. The claim was accepted as it was supported by relevant and necessary medical evidence and met the criteria required by the Act for payment of DSP from 25 November 2009. That is, the medical report by Dr Daly dated 27 November 2009 confirmed that the Applicant’s UC was fully diagnosed, treated and stabilised. The Applicant qualified for DSP as she lodged her claim accompanied by medical evidence within 13 weeks of notifying Centrelink of her intention to claim DSP on 25 November 2009.
CONCLUSION
The Applicant did not satisfy s 94(1)(b) of the Act in that the condition for which she was claiming DSP was not fully documented, diagnosed, investigated, treated and stabilised prior to 25 November 2009. The Applicant subsequently satisfied s 94(1)(b) of the Act by lodging a DSP claim and the JCA conducted on 11 December 2009. The Applicant thus became eligible for DSP from 25 November 2009.
DECISION
Accordingly, the decision to pay DSP from 25 November 2009 was the correct decision. The Tribunal affirms the decision of the SSAT made on 5 January 2012.
| I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision herein of Dr R McRae, Member. |
........[sgd].................................................
Shivanthi Herath, Associate
Dated 6 September 2012
| Date of hearing | 14 June 2012 |
| Applicant | Ms Angelica Filardo |
| Representative for the Applicant | Self-represented |
| Representative for the Respondent | Mr Tim Noonan, Centrelink Program Litigation & Review Branch |
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