Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 285

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 285

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6083

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Raymond Bishop

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal A K Britton, Senior Member

Date22 April 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – commencement date for payment of pension – jurisdiction of the Administrative Appeals Tribunal

Social Security (Administration) Act 1999 — ss 11, 42; Schedule 2, cll, 11,13(1)

REASONS FOR DECISION

22 April 2010 A K Britton, Senior Member          

1.      Mr Raymond Bishop suffers from paranoid schizophrenia. His condition is chronic. He was granted the Disability Support Pension (DSP) in 2003. In July 2007 his pension was cancelled. Mr Bishop sought to appeal that decision without success. In June 2009, his pension was reinstated, payable from 26 May 2009. He now applies to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, and affirmed by the Social Security Appeals Tribunal (SSAT), to reinstate his pension as from 26 May 2009. Mr Bishop contends that the delegate and the SSAT erred by not backdating his pension to the date of cancellation, July 2007.

2.      Mr Bishop also requests that this Tribunal compel the Commonwealth, the NSW Department of Housing, the NSW Law Society and the Tenants Union of NSW to provide him with suitable accommodation. For reasons given at hearing, this Tribunal does not have the power to make such orders.  Accordingly, the sole issue to be explored in these Reasons is the correct date the DSP became payable to Mr Bishop following the making of his claim in June 2009.

Background to decision to cancel Mr Bishop’s DSP

3.      The trigger for the decision to cancel Mr Bishop’s pension in 2007 was a report prepared by his treating doctor and provided to Centrelink to the effect that he did not suffer from any medical disability. Mr Bishop told Centrelink that he shared his doctor’s opinion. 

4.      Mr Bishop applied to the AAT for review of the decision to the cancel his pension and was unsuccessful: Bishop and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 422. He lodged an appeal against that decision with the Federal Court, which was dismissed as the Court was not satisfied that a question of law had been raised: Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1059. Mr Bishop lodged an appeal against that decision. That appeal was struck out: Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.

Mr Bishop’s 2009 pension claim

5.      After exhausting his appeal options, Mr Bishop lodged a fresh claim for DSP with Centrelink on 23 June 2009. He requested that that payment be backdated to the date his pension was cancelled — July 2007. That request was supported by a social worker with the Bankstown Mental Health Service.

6.      In a decision made on 20 August 2009, a delegate of the Secretary accepted Mr Bishop’s claim for pension payable from the date his claim was lodged — 23 June 2009. An Authorised Review Officer varied that decision and decided that Mr Bishop was entitled to four weeks’ payment of arrears because the sole reason he had not made a claim before the date of lodgement was because of his illness.

Legislation 

7.      The disability support pension, like other social security payments, is generally payable from the date on which the claimant makes a claim: s 42 and cl l3(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Act). Section 11 of the Act requires that a claim must be made in accordance with Part 3, Division 1 of the Act. Among other things, the claim must be in writing and in a form approved by the Secretary: s 16.

8.      There are a number of exceptions to the general rule that a social security payment is only payable from the date a claim is lodged. Two are relevant in this matter — the deeming provision contained in s 13 of the Act and the provision relating to incapacitated claimants: cl 11 of Schedule 2 of the Act.

Does the section 13 deeming provision apply

9.      Where a claimant has contacted the Department before lodging a written claim, s 13 of the Act operates to backdate the claim to the date of contact in certain circumstances.  Section 13(1) provides:

(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.

10.     Mr Bishop claims that he visited Centrelink offices “within weeks” of his pension being cancelled in 2007. Even if that unsupported claim is accepted, s 13(1) is not satisfied as the Secretary did not give Mr Bishop written notice acknowledging that contact.  Nor are ss 13(2) and 13(3) satisfied, which also allow a claim to be backdated in certain circumstances, as they also require written acknowledgment by the Secretary of contact having been made. It follows that the deeming provision contained in s 13 of the Act does not assist Mr Bishop. 

Does the incapacitated claimant exception apply?

11.      Clause 11 of Schedule 2 of the Act operates to backdate the start date of a pension in certain circumstances where the claimant is incapacitated. The effect of the provision is that a claim for a benefit or pension can be backdated to a maximum period of four weeks before the formal claim was lodged. Clause 11(2) applies in this case as Mr Bishop lodged his claim more than five weeks after the date on which his incapacity began.  It provides:

Incapacitated claimant

(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.

12.     Psychiatrist, Dr Honor Pennington, is of the opinion that Mr Bishop suffers from chronic paranoid schizophrenia, lacks insight into his condition, is severely impaired by delusional thoughts and refuses to accept treatment. He considers the condition to be long-standing. This is apparent from the reference in his report to the condition having been diagnosed in 2005, his characterisation of the condition as “chronic”, and reference to Mr Bishop’s “longstanding” delusional thoughts (see report of Dr Pennington, 19 June 2009). Social worker, Ms Diane Moody, who wrote in support of Mr Bishop’s request to have his DSP reinstated, shares Dr Pennington’s view that the condition is longstanding. In her view, Mr Bishop’s lack of insight and paranoid beliefs — symptoms of his condition — explain why he had difficulty complying with Centrelink’s requirements (see Ms Moody’s letter to Centrelink, 17 August 2009).  

13.     In my view the evidence makes abundantly clear that Mr Bishop satisfies               cl 11(2) — his incapacity for work was a result of his condition; his incapacity arose more than five weeks before making his 2009 claim; and his incapacity was the principal reason he failed to make his claim within five weeks of the day on which his incapacity began.  Accordingly, by the operation of cl 11(2) the start date for the payment of DSP to Mr Bishop is four weeks immediately before the date on which his claim was made, i.e. 26 May 2009.  

Can payment be backdated beyond 26 May 2009?

14.     The Secretary submits that they do not have power to backdate Mr Bishop’s pension to the date of cancellation.  I have been unable to locate any provision in either the Act or the Social Security Act 1999 (Cth) under which Mr Bishop’s pension could be backdated beyond 26 May 2009.  It follows that the decision to back date Mr Bishop’s pension to that date must be affirmed.

Recommendation

15.     Mr Bishop did not receive any pension or benefit throughout the period June 2007 to May 2009. He has been homeless for much of this time. Medical evidence now available makes clear that he suffered from a chronic and debilitating mental illness throughout that period. It also indicates that one of the symptoms of Mr Bishop’s condition is lack of insight and, at times, an inability to accept that he suffers from any illness. This would appear to explain why in 2007 he told his treating doctor and Centrelink that he did not suffer any medical disability. That information formed the basis of the decision to cancel Mr Bishop’s pension. While there is limited information before me on this point, it would seem that the treating doctor did not have available to him the information available to Ms Moody and Dr Pennington of Mr Bishop’s long history of mental illness, including a period of involuntary psychiatric admission in 2005.

16.     This application highlights the real difficulties faced by decision–makers when confronted with a claimant who denies that they suffer from a mental illness and refuses to be assessed. An unintended consequence of the social security legislation and its administration may be that people like Mr Bishop are placed in something of Catch-22 situation: while they qualify for DSP on account of being significantly impaired and incapacitated for employment as a result of their condition, they are denied benefits because they refuse to accept that this is the case — something which is a symptom of their condition.  I recommend that in any future decision relating to Mr Bishop’s entitlement to a social security benefit, care be exercised when taking into account his self–report, and proper regard be given to the history of his condition.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member A K Britton.

Signed:         ..................................[SGD]............................................
  Associate to Senior Member Britton

Date of Hearing:                   15 April 2010
Date of Decision:                   22 April 2010
The Applicant appeared in person.

Representative for the Respondent:         Ms G Heggen,

Centrelink Legal Services