Burgess and Secretary, Department of Family and Community Service S

[2003] AATA 1062

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/943

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DARREN BURGESS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date7 October 2003

PlaceGrafton

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

[Sgd] G Ettinger
  Senior Member

CATCHWORDS

SOCIAL SECURITY – claim by Applicant for arrears of disability support pension - no discretion to backdate payment of disability support pension - decision affirmed

Social Security Act 1991 section 23

Social Security (Administration) Act 1999 sections 3, 11, 13

REASONS FOR DECISION

Ms G Ettinger, Senior Member                 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member G Ettinger

Signed:         L Bonouvrie

Associate

Date of Hearing  7 October 2003

Date of Decision  7 October 2003

Representative for Applicant      Self-represented

Solicitor for Respondent              Ms Helen Wallis-Dunn

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/945
By MS G. ETTINGER, Senior Member
DARREN BURGESS and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
GRAFTON, TUESDAY, 7 OCTOBER 2003

MS ETTINGER:   So, to put it in context, the decision under review before the Tribunal was the decision of the delegate of the Secretary for the Department of Family and Community Services, which I call “the Department” later on in the decision, as affirmed by the Authorised Review Officer on 6 February 2003 and the Social Security Appeals Tribunal on 6 March 2003. They refused the claim by the Applicant, Mr Darren Burgess, for arrears of disability support pension.  In this hearing the Applicant was self represented and the Respondent Department was represented by its advocate Ms Helen Wallis-Dunn. 

issue before the tribunal

The issue before the Tribunal was whether the Applicant could be paid arrears of disability support pension from 1992 to the date of grant, being 16 April 2002.

legislative framework

Now, the legislative framework. The relevant legislation in this matter is the Social Security Act 1991, in particular section 23 and the Social Security Administration Act 1999, in particular sections 3, 11, 13.

evidence before the tribunal

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which we call the T document as exhibit R1, the statement of facts and contentions of the Respondent as exhibit R2.  Mr Burgess tendered a bundle of correspondence which was exhibit A1 before the Tribunal.  Mr Burgess was the only witness and he gave oral evidence before the Tribunal.

evidence and submissions of the applicant

So I move then to evidence and submissions of the Applicant.  Mr Burgess whose date of birth is 9 February 1968, gave oral evidence.  He said he felt like he had to do everything and find out everything himself because he did not have assistance.  For a disabled person to obtain information at law was a disability in itself, he said.  He said it was very difficult to assemble documents and complained that he had been poorly notified as to his rights. 

Mr Burgess, who has done training in various fields - certificates relating to these being in the T documents - and has a trade told me that he suffers from paranoid schizophrenia which was diagnosed in 1992. Mr Burgess was somewhat concerned and aggrieved that the diagnosis was made with what he indicated, little investigation, and yet not communicated to the then Department of Social Security so that he feels he could have received a disability support pension (“DSP”) back in 1992. 

Mr Burgess indicated that he had calculated the difference between what he was receiving on unemployment benefit, which is now called Newstart, and what he should have been receiving if he had been receiving the correct pension from 1992 which he said was disability support pension.  Those calculations are at T21.

In support of his argument Mr Burgess pointed out two letters from exhibit A1 - a letter of Mr Ray Isaacs, a Psychologist, which referred to Mr Burgess' hospitalisation at the Richmond Clinic from 19 June 1992 to 13 July 1992, where the diagnosis of paranoid schizophrenia was made.  He wanted to rely on that letter to backdate his ground of disability support pension.  The second letter was one of Mr Bruce Price, Centrelink Psychologist of Grafton, dated 29 September 2003, stating that he had interviewed Mr Burgess on 16 April 2002 and that the DSP had been granted from that date.

In giving evidence about the years which he was receiving unemployment benefit and then later Newstart Allowance, Mr Burgess stated that he worked part time and also indicated that he did not take medication after either the first lot ran out in 1992 or perhaps 1995.  He has since consulted naturopaths because he does not want to take traditional medicines.  He said that he had a lot of problems with his business plan and had also lost contact with some friends and family.  He said he contacted the Ombudsman and other organisations in connection with his lack of success in having his DSP backdated.  I move then to submissions of the Respondent.

submissions of the respondent

Ms Wallis-Dunn submitted that the document of Mr Isaacs regarding Mr Burgess' hospitalisation at T13 and exhibit A1 was part of a letter dated 23 May 2002.  She submitted further that neither the Richmond Clinic nor the Northern Rivers Area Health Service had any obligation to inform the Department of Social Security, as it then was, regarding Mr Burgess' illness. 

Ms Wallis-Dunn submitted the Department had no idea of Mr Burgess' illness in 1992 and awarded him unemployment benefit at that time which was what he had applied for.  In that regard, she was unable, due to the effluxion of time, to produce the original or even a copy of Mr Burgess' application. She submitted that what that indicated was that Mr Burgess agreed to work and seek work and his evidence was that he worked part time. 

Ms Wallis-Dunn submitted that pursuant to sections 3 and 11 of the Social Security Administration Act 1999, the person's start date for pension provided they were qualified, is the day in which the claim is made. 

Ms Wallis-Dunn submitted that there was no discretion which permitted the decision maker or the Tribunal to chose any other dates for commencement of DSP payments apart from what was specified in section 13. I noted those submissions and I move then to consider my conclusions.

submissions and conclusions

In deciding whether Mr Burgess is able to have his DSP backdated I had to take into account the evidence, legislation, case law and submissions in order to make the correct and preferable decision. 

I was mindful of Mr Burgess feeling aggrieved that he did not receive DSP in 1992 immediately after being diagnosed with paranoid schizophrenia.  I have noted his evidence regarding the difficulty of finding out information and handling legal matters on one's own as he has done and I thank him for turning up to our hearing and telling his story. I noted Mr Burgess' complaint that the Psychologists and Psychiatrist who diagnosed and treated him did not inform the Department of Social Security or Centrelink that he was paranoid schizophrenic and that, accordingly, if they had he may then have received a DSP back in 1992.  In that regard, I noted also Ms Wallis-Dunn's submission that such persons and bodies for whom they worked had no responsibility in that regard.  Ms Wallis-Dunn is right, but in addition there would be serious privacy issues if such information were divulged without Mr Burgess' explicit permission.

I have carefully considered Mr Burgess' rights in that regard and noted that on receipt of unemployment benefit in April 1992, he had to undertake to seek work and in fact according to his did do some part time work.  Even though the Respondent was not able to produce Mr Burgess' original application form, I could find no indication that unemployment benefit was not the correct benefit to be paid at that time.  There were various certificates in the T documents of course, as Mr Burgess has undertaken and he has a trade qualification in the building industry. 

I noted from his evidence that Mr Burgess has not consulted doctors or taken medicine since 1992 or 1995 perhaps and does not attend a psychiatrist. He said that he attends at a naturopath and he also takes no traditional medicines. 

I noted further that notwithstanding his diagnosis of paranoid schizophrenia, Mr Burgess may not have been qualified for DSP in 1992 and even if qualified, he did not apply for it so it was not payable. I noted that section 23 of the Social Security Act 1991 includes the DSP. I then turn to consider sections 11 and 3 of the Social Security Administration Act1999. 

Sections 3 and 11 of the Social Security Administration Act1999 state that disability support pension must be applied for, and if a person is qualified, as Mr Burgess now appears to be, then it can only be payable from the date of application. In fact Mr Burgess did not apply until 17 April 2002 and was granted DSP from 16 April 2002 pursuant to section 13 of the Social Security Administration Act 1999 because he had been in contact with the Department on that day even before he applied for the disability support pension. I noted from section 13 that there is a 14 day window in which that can occur.

decision

Unfortunately I do not have any discretion to backdate Mr Burgess' disability support pension and, accordingly, I must affirm the decision of the Department which was affirmed by the Social Security Appeals Tribunal on 6 March 2003 that arrears of DSP are not payable to Mr Burgess.

Therefore the application of Mr Burgess to have his ground of disability of support pension backdated to 1992 is not successful.  I'm aware Mr Burgess will not be happy with the decision I have made, however, I am bound to apply the legislation as it stands and I note that lobbying for changes to legislation must be directed to the Parliament.