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

[2011] AATA 230

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3774

GENERAL ADMINISTRATIVE DIVISION		)
Re		Clayton Croker

Applicant

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

Respondent

DECISION

Tribunal Senior Member A K Britton

Date6 April 2011

PlaceSydney

Decision The decision under review is affirmed.

........................[sgd]......................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – applicant’s DSP cancelled – cancellation decision affirmed by succession of decision-makers - applicant’s fresh claim for DSP granted and payment commenced – whether Tribunal had power to backdate DSP to date of original cancellation decision – whether applicant made incorrect claim for Newstart Allowance – whether applicant incapacitated – Tribunal lacked power to disturb decisions of previous decision-makers – decision under review affirmed

Croker and Secretary, Department of Employment and Workplace Relations [2007] AATA 1224

Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635

Croker v Secretary, Department of Employment and Workplace Relations (No. 2) [2008] FCA 340

Administrative Appeals Act 1975 (Cth)

Social Security Act 1999 (Cth) – ss 593, 601, 601(1A) – (1F)

Social Security (Administration) Act 1999 (Cth) – ss 13, 15, 42, 126, and cl 3(1) Sch 2 and cl 11, Sch 2

REASONS FOR DECISION

6 April 2011  Senior Member A K Britton

1.      Mr Croker seeks review of a decision made by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) and affirmed by the Social Security Appeals Tribunal (SSAT) to pay Disability Support Pension (DSP) from 29 April 2008. 

2.      Mr Croker was granted DSP in March 1994. In September 2005, the Secretary decided to cancel Mr Croker’s DSP but continued payments until 6 June 2006 pending review of that decision. The cancellation decision was affirmed by the SSAT and on 13 April 2007, by the Administrative Appeals Tribunal: Croker and Secretary, Department of Employment and Workplace Relations [2007] AATA 1224. Mr Croker was unsuccessful in his appeal to the Federal Court: Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635. Mr Croker’s appeal to the Full Court of the Federal Court has been stayed until such time as he lodges security for the respondent’s costs: Croker v Secretary, Department of Employment and Workplace Relations (No. 2) [2008] FCA 340.

3. In May 2008 Mr Croker lodged a fresh claim for DSP. On review, the SSAT set aside Centrelink’s decision not to grant DSP and decided that DSP was payable from the date the new claim was lodged with Centrelink – 7 May 2008. That decision was implemented, but with an earlier start date — 29 April 2008 — being the date Mr Croker first contacted Centrelink in relation to his 2008 claim. The revised decision was apparently made under s 126 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

4.      In April 2010, Mr Croker wrote to Centrelink asking that he be paid arrears of DSP for the period 6 June 2006 to 29 April 2008. A Centrelink Authorised Review Officer refused that request and decided that the correct start date for payment of DSP was 29 April 2008. That decision was affirmed by the SSAT.  Mr Croker now seeks review of that decision.  He contends that the evidence makes abundantly clear that that he has qualified for DSP continuously since 1994.

5.      The question that arises for determination in this matter is whether the Tribunal has the power to backdate DSP beyond 29 April 2008.

From what date is dsp payable? 

6. 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 3(1) of Schedule 2 of the Administration Act. There are a number of exceptions to that general rule. Three might be relevant in this matter, namely those contained in — ss 13 and 15 and cl 11 of Schedule 2 of the Administration Act.

Does s 15 apply?

7. On 2 June 2006 Mr Croker made a claim for Newstart Allowance. He contends that he made that claim under duress, as he had been told that DSP payments would cease, he had no other source of income and at that time his appeal against the decision to cancel DSP had not been finalised. Mr Croker contends that the claim for Newstart Allowance was an “incorrect claim” within the meaning of s 15 of the Administration Act. He claims that by the operation of that provision his subsequent claim for DSP should be backdated to the date his claim for Newstart Allowance was lodged.

8.Section 15 provides:

Deemed claim – 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.

…

Did Mr Croker make an incorrect claim?  

9. The claim for Newstart Allowance made by Mr Croker in June 2006 will constitute an “incorrect claim” if it was a claim for which he was “not qualified”: s 15(2).

10.     After the hearing, at the request of the Tribunal, the Secretary provided further information about the qualification criteria for Newstart Allowance that applied in June 2006. At the invitation of the Tribunal Mr Croker provided further written submissions in response to that information.

11. When Mr Croker lodged his claim, a person who wished to claim Newstart Allowance was, among other things, required to meet the eligibility criteria set out in s 593 of the Social Security Act 1991 (Cth) (the Act). It is agreed that Mr Croker met all criteria apart from that set out in s 593(1)(b) which requires that a claimant throughout the period:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test.

12. Section 601 of the Act provides that subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a)  actively seeking; and

(b)  willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

13.     On 2 June 2006 Mr Croker entered into a “Preparing for Work Agreement” with Centrelink.  Under that agreement, Mr Croker undertook, among other things, to make ten “job search contacts” each fortnight and maintain a “Jobseeker Diary”.  There is no evidence that Mr Croker failed to comply with the terms of that agreement.  In his claim lodged on 6 June 2006 Mr Croker answered “yes” to the question, “Do you have any disabilities, medical conditions or addictions that affect your ability to work?” and also declared that he was looking for work and that the information he had provided was correct.

14.     Mr Croker said that when he lodged his claim for Newstart Allowance there was abundant evidence available to Centrelink that he was unfit for work, including the Job Capacity Assessment reports dated 12 September 2006 and 20 February 2007. The author of the latter concluded that Mr Croker currently had a capacity to work 15 to 22 hours per week and with intervention, up to 29 hours per week. 

Conclusion

15.     The issue to be decided is not which of the potential social security benefits available to Mr Croker represented the “best fit”, but rather whether he qualified for Newstart Allowance when his claim for that benefit was lodged.

16. I accept that when he made the claim for Newstart Allowance Mr Croker held the firm belief that he qualified for DSP. When he made that claim his application for a stay of the SSAT decision made two months earlier affirming the original cancellation decision, had not been determined. Nonetheless at the time he made the claim, Mr Croker had entered into a “Preparing for Work Agreement” and declared that he was looking for work. The Job Capacity Assessment reports on which he now relies post-date the grant of Newstart Allowance. As such, by the operation of s 601, he satisfied the activity test and qualified for Newstart Allowance at the date he lodged his claim. Accordingly the claim is not an “incorrect claim” and the pre-condition to the operation of s 15 is not satisfied.

Does section 13 apply?

17. Where a claimant has contacted Centrelink before lodging a written claim, s 13 of the Administration 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.

18. It is not disputed that on 29 April 2008 Mr Croker notified Centrelink of his intention to claim DSP. The claim was lodged on 7 May 2008. Accordingly as his claim was lodged within 14 days of contacting Centrelink about the claim, by the operation of s 13 of the Administration Act the claim is deemed to have been made on 29 April 2008.

Does Clause 11 of Schedule 2 of the Administration Act apply?

19. Clause 11 of Schedule 2 of the Administration 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 up to four weeks before the formal claim was lodged, providing the claimant’s medical condition was the sole or principal cause of their failure to make the claim within five weeks after the day on which the incapacity began.

20.     Mr Croker’s claim for DSP was made in respect of chronic pain, tinnitus and carpel tunnel syndrome.  There is no evidence and nor is it contended that Mr Croker’s failure to make the claim within five weeks after the day on which the incapacity began was “as a result of” of those conditions, either separately or in combination.  

21. Accordingly, cl 11 of Sch 2 of the Administration Act does not apply.

Further submissions

22.     Mr Croker submits that he has been the victim of an injustice because he has qualified for DSP continuously since 1994. He contends that that proposition is supported by the weight of evidence and the 2009 decision of the SSAT.  He argues that had the succession of decision-makers who considered the original cancellation decision taken into account all relevant considerations and had the advantage of evidence now available, the offending decision would have been set aside.  

23.     In this review I am empowered to decide whether the decision to pay Mr Croker DSP from 29 April 2008 is the correct and preferable decision.  I am without power to review the decisions made by the SSAT, AAT and Federal Court, to affirm the decision made in September 2005 to cancel Mr Croker’s pension. Even if it is assumed, for the sake of argument, that those decision-makers would have reached a different decision had they approached the evidence in the manner Mr Croker suggests, or been provided with the evidence now available, it is not within my power to disturb those decisions. The AAT does not have power at large to inquire into and determine matters that take its interest. Its can only review those decisions where power to do so has been conferred by the Administrative Appeals Act 1975 (Cth) or any relevant enactment.

24.     Mr Croker holds the sincere belief that he has qualified for DSP continuously since 1994.  Whatever the merits of that belief I do not have power to revisit the original decision to cancel his DSP.

25.     For these reasons I must affirm the decision under review.

I certify that the 25 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  18 March 2011
Date of Decision  6 April 2011
Applicant Self-Represented
Solicitor for the Respondent     Mr B Slattery, Centrelink Advocacy