Collareda and Department of Family and Community Services - [2001] AATA 212

DECISION AND REASONS FOR DECISION [2001] AATA 212

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1449

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAUL COLLAREDA
  Applicant
           And    SECRETARY, DEPARMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr R P HANDLEY, Senior Member

Date21 March 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd R P Handley]
Senior Member
CATCHWORDS
Social Security – disability support pension – date of commencement – CDA child turning 16 – no dispute that child medically qualified – consequences of not lodging claim for DSP immediately on 16th birthday – what constitutes a proper claim

Social Security Act 1991
Social Security (Administration) Act 1999

REASONS FOR DECISION

R HANDLEY, Member

This is an application by the Paul Collareda ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 30 August 2000, which affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") and the decision of an authorised review officer, that disability support pension ("DSP") should be paid to the Applicant from 30 December 1999 and not from 27 August 1999, the date of his 16th birthday.
At the hearing, the Applicant was represented by his father, Robert Collareda, and the Respondent was represented by John Kenny of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-Documents") together with an exhibit tendered by the Respondent.
background
The Applicant was born on 27 August 1983 and is now aged 17. He suffers from severe developmental and intellectual disability, such that the Respondent accepts that he is manifestly medically qualified for DSP.
Prior to the Applicant's 16th birthday on 27 August 1999, his mother, Julie Collareda, was receiving child disability allowance ("CDA") in respect of the Applicant. On 27 May 1999, Centrelink wrote to Mrs Collareda informing her that the CDA for her son might be affected when he turned 16, and, amongst other matters, that people of 16 years and older are eligible for DSP (T9). CDA became Carer Allowance from 1 July 1999.
On 27 August 1999, Centrelink wrote to Mrs Collareda informing her that her Carer Allowance would be cancelled after 26 August 1999 (T11). On 1 September 1999, Mrs Collareda telephoned Centrelink about the payment of Carer Allowance (T13) and, as a result, this payment was restored (T14). On 30 December 1999, the Applicant's application for DSP was lodged (T15).
On 19 January 2000, the Respondent decided that DSP should be paid to the Applicant from 30 December 1999 and not from 27 August 1999 (T26). This decision was affirmed by an authorised review officer on 19 June 2000 (T32) and by the SSAT on 30 August 2000 (T2). On 13 September 2000, Mr Collareda, acting on behalf of the Applicant, lodged an application for a review by the AAT. Mr Collareda gave evidence at the hearing.
the applicant's case
Mr Collareda told the Tribunal that he was not aware of the timeframe within which an application for DSP had to be lodged. Moreover, he was not aware that this could affect the date from which DSP became payable. He said he thought it incredible that there was no discretion in the legislation permitting the backdating of payment.
Mr Collareda said that the Applicant is in respite care for seven of every 14 days and home on the other days. With both Mr and Mrs Collareda working full-time, managing their schedule as necessary to care for their son, and caring for their other two children, they are very busy. Consequently, letters sometimes do not get dealt with immediately.
Mr Collareda criticised the letter from Centrelink dated 27 May 1999 (T7) because it failed to state clearly the date by which an application for DSP had to be lodged and failed to state that there was no provision for backdating payment of DSP. Mr Collareda said he did not take up the offer of an appointment with a Centrelink social worker because his family were already seeing a social worker from the NSW Department of Community Services, Amanda Pincham (T27).
Mr Collareda said that Ms Pincham had visited them about the time of the Applicant's birthday and left them a DSP claim form to complete. In answer to a question from Mr Kenny, Mr Collareda said he did not recall whether the claim form was contained in plastic wrapping accompanied by a notes booklet. He did not recall seeing a notes booklet. Mr Kenny explained that this was the usual procedure and showed Mr Collareda a notes booklet published in 2000 which accompanies the latest version of the DSP claim form (exhibit R1). Mr Collareda noted that even this booklet does not clearly indicate the consequences of not returning the claim form immediately. It does not state that there is no provision for backdating payment of DSP. It states:
"Please return your claim form within 14 days to ensure you are paid from the earliest date possible under the social security law."
Mr Collareda said it was more likely that a person would read a letter than an accompanying booklet of this sort. A letter to a recipient such as that to his wife dated 27 May 1999 (T7), should state clearly, in bold print, that there is no provision in the law for the backdating of DSP so that potential applicants are aware of this.
the respondent's case
Mr Kenny, for the Respondent, said that the letter dated 27 May 1999 (T7) canvassed a number of possibilities in respect of benefits for the Applicant after he turned 16. Not all children in respect of whom CDA (now Carer Allowance) is paid end up on DSP. However, one possibility was that of the Applicant being paid DSP in his own right. The letter also invited Mrs Collareda " to make an appointment with a social worker to talk about support services available in the community". While acknowledging the difficult and stressful family situation experienced by Mr and Mrs Collareda, Mr Kenny said, nevertheless, that it is the responsibility of the customer to lodge the appropriate form in order to claim a social security benefit.
Mr Kenny referred to the relevant provisions of the Social Security Act 1991 ("the Act"). He submitted that subsection 106(1) requires a person seeking the grant of DSP to lodge a proper claim in accordance with a form approved by the Secretary of the Department (section 107). Such a claim must be lodged at a departmental office or other approved place (section 108). Section 99 provides that DSP is not payable to a person before "the person's provisional commencement day", which, in accordance with subsection 100(1), will usually be "the day on which the person claims the disability support pension".
Mr Kenny submitted that in the circumstances of the Applicant's case, the Tribunal had no option but to affirm the SSAT decision under review.
consideration of law and findings
There is no dispute that the Applicant is medically qualified for DSP. At issue, is the date from which DSP is payable. The Tribunal finds that the Applicant's claim for DSP was lodged on 30 December 1999 (T15). It is clear that Mr Collareda was unaware of the consequences of not lodging the Applicant's claim for DSP immediately on his 16th birthday on 27 August 1999, and was also not aware that there was no provision in the Act allowing for backdating payment of DSP.
The Tribunal finds that the letter from Centrelink to Mrs Collareda dated 27 March 1999 (T7), whilst canvassing a number of benefits which might be claimed by or in respect of the Applicant, did not provide specific information about the payability of DSP. The Tribunal also notes that the notes booklet (exhibit R1) which, in an earlier version, may have been provided to Mr and Mrs Collareda, also probably did not provide this information. However, if wording was similar to that of the 2000 version of the booklet, it probably did advise that a person should return a claim within 14 days to ensure payment of the benefit at the earliest date possible. The Tribunal is unable to make any finding about a notes booklet since there was no evidence to establish that Mr and Mrs Collareda had been provided with such a booklet, nor as to its exact wording.
The Tribunal also makes no finding as to whether information about the payability of DSP should have been included in the letter of 27 May 1999 (T7) or in any notes provided with the claim form. However, the Tribunal notes that it is obviously important that potential recipients of social security benefits should be made aware of the effect of payability provisions contained in the Act.
With regard to these payability provisions, the requirements for making a claim must first be considered. The Tribunal notes that sections 11 and 16(1) of the Social Security (Administration) Act 1999 referred to by the SSAT in its decision (T2) were not in effect at the time of the decision in this case (19 January 2000) and commenced on 20 March 2000. The references below are therefore, to the legislation applicable on 19 January 2000, which is the Social Security Act 1991. Section 106(1) states:
"A person who wants to be granted a disability support pension must make a proper claim for that pension."

Section 107 states:

"To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary."

Section 108 provides for the lodging of a claim at a departmental office, at other approved places, or with approved persons.

If the Secretary determined that a claim was to be granted, then subject to some exceptions which are not applicable in the Applicant's case, section 115 provided that the determination took effect on the day upon which it was made or "on such later day or earlier day as is specified in the determination". Specifically with regard to payability, section 99 stated:
"Disability support pension is not payable to a person who is qualified for the pension before the person's provisional commencement day (identified under section 100)."

Subject to some special provisions which, again, are not applicable in the Applicant's case, section 100(1) stated that "a person's provisional commencement day is the day on which the person claims the disability support pension".

The Applicant's claim for DSP was lodged on 30 December 1999. In accordance with sections 99 and 100(1), DSP could not therefore be payable to the Applicant before that date. Thus, the original departmental decision was correct and the decision of the SSAT must be affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of R. HANDLEY, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 March 2001
Date of Decision  21 March 2001
Counsel for the Respondent    John Kenny
Rep. for the Applicant              Self - represented