Best and Secretary, Department of Social Services (Social services second review)

[2019] AATA 3203

Best and Secretary, Department of Social Services (Social services second review) [2019] AATA 3203 (3 September 2019)

Division:GENERAL DIVISION

File Number:           2018/0842

Re:Bryann Best

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:3 September 2019

Place:Sydney

The decision under review is affirmed.

............................[SGD]............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – rejection – whether applicant sought review of the decision within 13 weeks of being notified of the decision – where applicant sought review of decision more than 13 weeks after being notified of the decision – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 94, 95
Social Security (Administration) Act 1999 (Cth) ss 42, 107

REASONS FOR DECISION

Dr L Bygrave, Member

3 September 2019

1. The applicant, Mr Bryann Best, lodged a claim for disability support pension on 15 September 2015. The Department of Human Services (Centrelink) rejected Mr Best’s claim for disability support pension on 16 November 2015 because he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act).

2. On 17 February 2017, Mr Best applied for and was granted disability support pension on the basis that he was manifestly eligible under section 95 of the Act because he met the requirements for permanent blindness.

3. Mr Best has applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review because he submits that he was eligible to receive disability support pension from 15 September 2015, the date he made his earlier claim to Centrelink.

4. The Secretary contends that Mr Best cannot be paid disability support pension from a date prior to 17 February 2017 because he did not seek review of Centrelink’s decision made on 16 November 2015 until 18 August 2017.

5. The matter was heard in Sydney on 15 May 2019. Mr Best attended the hearing and gave evidence in person with the support of his mother, Miss Toni Best. The hearing was then adjourned until 20 August 2019, when the parties outlined their closing submissions to the Tribunal.

   ISSUES

6. The issues for determination by the Tribunal are:

   ·whether Mr Best sought review of the decision made by Centrelink on 16 November 2015 to reject his claim for disability support pension within 13 weeks; and

   ·if so, whether Mr Best meets the requirements for disability support pension set out in the Act for his claim lodged on 15 September 2015.

   RELEVANT LEGISLATION

7. Relevant to this matter, section 107 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) sets out the following general rule for determinations relating to claims:

   1Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination. …

   3If:

   (a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and

   (b)the person is given a notice informing him or her 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)a decision that the claim be granted is made as a result of the application for review;

   the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made. [emphasis in original]

8. The effect of subsection 107(3) of the Administration Act is that if Mr Best seeks review of a decision by Centrelink more than 13 weeks after being notified of that decision, any favourable decision will take effect from the date he seeks review.

9. The qualification criteria for the disability support pension are set out in subsection 94(1) of the Act, which requires a person to show they have:

   ·a physical, intellectual or psychiatric impairment; and

   ·an impairment rating of 20 or more points according to the Impairment Tables; and

   ·a continuing inability to work.

10. Section 95 of the Act also provides that a person is qualified for disability support pension if they are permanently blind.

11. These criteria must be met on the date a person applies for disability support pension or within the following 13 weeks: section 42 and Schedule 2 to the Administration Act.

    EVIDENCE

12. Mr Best lodged a claim for disability support pension on 15 September 2015.[1]

    [1] Exhibit T-T20.

13. On 16 November 2015, Centrelink decided Mr Best was not eligible for disability support pension. Centrelink documents record the following information was communicated to Mr Best by a Centrelink staff member on 16 November 2015:

    -    customer has been informed of the eligibility criteria for DSP.

    -    customer has been informed of decision to REJECT DSP claim.

    -    customer informed of the letter sent Re: Decision to reject claim.

    -    customer explained standard 13 week review process especially for rejected FRC cases or medical rejections.

    -    Appeals and review options discussed with customer.

    -    customer is on/has been assessed for another payment if appropriate.

    -    customer has been offered appropriate referrals if suggested by JCA.

    …

    -    Advised customer of rejection and reason why.

    -    He stated that he took additional medical evidence with him to the JCA appointment and the JCA assessor advised that she did not want it as she had enough to complete her assessment. Customer stated that evidence was additional to what she had and pertinent to the customer’s medical treatment.

    -    Advised customer of right to appeal if you would like the additional medical evidence assessed.[2] [reproduced as in original]

    [2] Exhibit T-T43, page 257.

14. Centrelink also wrote a letter to Mr Best dated 16 November 2015 informing him that he was not eligible for disability support pension. This letter included the following statement:

    If you do not agree with the decision we have made, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you received review.[3]

    [3] Exhibit T-T24, page 181.

15. At the Tribunal hearing, Mr Best said that neither he nor his Centrelink nominee, Miss Best, received the letter from Centrelink dated 16 November 2015 by post or via the “myGov” webpage. However, Mr Best confirmed that a Centrelink staff member informed him about the decision by Centrelink to reject his disability support pension by telephone on 16 November 2015; he noted that he was also told about the requirement to request a review within 13 weeks of being notified about the decision.

16. Mr Best stated that he subsequently attended the Centrelink office on 10 December 2015 and verbally requested that Centrelink review its decision made on 16 November 2015 to reject his claim for disability support pension. He explained to the Tribunal that he did not provide this request for review in writing because he was unable to write at this time due to problems with his sight. In addition, Mr Best said that his mother and nominee, Miss Best, was also experiencing health issues during this period and was unable to assist him to write a letter to Centrelink.

17. Centrelink records show contact with Mr Best on the following dates:

    ·On 12 November 2015, Mr Best contacted Centrelink regarding a claim for newstart allowance as he was no longer eligible for youth allowance because he was not studying full-time.[4]

    ·On 20 November 2015, Mr Best contacted Centrelink to report his earnings for the purpose of newstart allowance.[5]

    ·On 26 November 2015, Mr Best was issued with a contact letter to remind him that a Job Plan was required to be completed.[6]

    ·On 2, 4 and 10 December 2015, contact between Mr Best and Centrelink related to his newstart allowance.[7]

    ·From 5 January 2016 to 17 February 2017, contact between Mr Best and Centrelink related to his newstart allowance.[8]

    [4] Exhibit ST-ST4, page 310.

    [5] Exhibit ST-ST4, page 309.

    [6] Exhibit T-T43, page 258 and ST-ST4, page 308.

    [7] Exhibit ST-ST4, pages 307-308.

    [8] Exhibit ST-ST4, pages 304-307.

18. Relevantly, there is no Centrelink record from 10 December 2015, or any time prior to 18 August 2017, stating that Mr Best requested a review of the decision made by Centrelink on 16 November 2015. There is only a two page letter signed by Mr Best and dated 22 August 2016 that is addressed to a compliance officer at Centrelink regarding other proceedings.[9]

    [9] Exhibit T-T27, pages 184-185.

19. Mr Best submitted a second (successful) claim for disability support pension on 17 February 2017, a period of more than 15 months after 16 November 2015.

20. On 18 August 2017, Mr Best made a written request for review of the decision by Centrelink on 16 November 2015 to reject his claim for disability support pension because the “decision in relation to [his disability support pension] application in 2015 has been incorrectly made”.[10] This letter stated that he “strongly felt the need to request a review after Centrelink confirmed that a…medical report disappeared from Mr Best’s lodgement of documents for his DSP claim…in 2015”.[11]

    [10] Exhibit T-T35, page 203.

    [11] Exhibit T-T35, page 206.

    CONSIDERATION

21. I am satisfied that Mr Best was informed about the decision made by Centrelink on 16 November 2015 to reject his claim for disability support pension and that he needed to request a review within 13 weeks of being notified about the decision, otherwise he could only receive his entitlement from the date he requested a review. This is both shown in the Centrelink records and confirmed by Mr Best’s oral evidence to the Tribunal on 15 May 2019.

22. However, weighing all the evidence before the Tribunal, I find that Mr Best did not seek review of the decision made by Centrelink on 16 November 2015 until 18 August 2017, the date Mr Best made a request in writing for a review of the decision by Centrelink on 16 November 2015.

23. While I note Mr Best’s oral evidence that he made a verbal request to Centrelink on 10 December 2015 to review Centrelink’s decision made on 16 November 2015 to reject his claim for disability support pension, there is no record of this request on the Centrelink files. This is despite many other clear records of communication that occurred between Mr Best and Centrelink staff in the period from 12 November 2015 to 17 February 2017.

24. I am not persuaded by Mr Best’s version of events, which contain the following inconsistencies. First, if Mr Best’s version of events that he requested a review verbally on 10 December 2015 is correct, it is not clear to the Tribunal why he waited until 18 August 2017 – a period of more than 20 months – to write to Centrelink requesting that it review the decision made on 16 November 2015 to reject his claim for disability support pension.  I note that Mr Best’s claim that neither he nor Miss Best were able to put their request in writing before August 2017 is not consistent with the two page letter dated 22 August 2016 that Mr Best sent to Centrelink.

25. Second, if Mr Best made a verbal request for review to Centrelink on 10 December 2015, it seems curious that Mr Best’s very detailed letter on 18 August 2017 made no reference to him previously asking Centrelink to review the decision made on 16 November 2015; rather, his letter only stated that the decision by Centrelink was incorrect and did not refer to all the medical evidence.

26. For these reasons, I am satisfied that Mr Best did not make a request on 10 December 2015 for review of the decision by Centrelink on 16 November 2015 to reject his claim for disability support pension; and I find Mr Best first sought review of Centrelink’s 16 November 2015 decision on 18 August 2017, a date that is more than 13 weeks after the decision.

27. On the basis of this finding, it is not necessary for me to consider the second issue, namely, whether Mr Best met the requirements for disability support pension for his claim lodged on 15 September 2015. This is because, even if that decision was favourable, it could only take effect from 18 August 2017, by which date Mr Best was already receiving disability support pension.

    CONCLUSION

28. Mr Best has been in receipt of the disability support pension from 17 February 2017. As I find Mr Best did not request review of Centrelink’s decision on 16 November 2015 until 18 August 2017, it follows that he cannot be paid disability support pension prior to 17 February 2017.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[SGD]..............................................

Associate

Dated: 3 September 2019

Date(s) of hearing:	15 May 2019, 20 August 2019
Advocate for the Applicant:	Miss T Best
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services