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

[2010] AATA 493

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 493

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4760

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Clayton Robert Croker

Applicant

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

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date2 July 2010   

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell, Senior Member

CATCHWORDS – SOCIAL SECURITY­ – pensioner education supplement – qualification – commencement date of social security payment – date on which a claim is deemed to have been made

Social Security Act 1999

Social Security Administration Act 1999

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      

Clayton Croker lodged a claim for disability support pension on 7 May 2008, having made contact with Centrelink regarding his eligibility on 29 April 2008.

The Secretary rejected this claim. On 1 June 2009, the Social Security Appeals Tribunal reviewed the decision and directed the Secretary to pay disability support pension with backdating payment to 29 April 2008. Mr Croker continues to receive disability support pension.

2.      Subsequent to the SSAT decision, Mr Croker lodged a pensioner education supplement claim form and furnished his study details to the Lismore Centrelink office in July 2009. Having fulfilled the eligibility criteria, Mr Croker was paid the pensioner educational supplement from 15 June 2009. Mr Croker contends that the pensioner education supplement payment should be backdated to 29 April 2008 to coincide with the date from which he was found to be eligible for the disability support pension, the receipt of which his eligibility for the pensioner educational supplement was contingent upon.

3.      The facts are not in dispute. This matter presents only one issue to the Tribunal, that is, to determine the correct start date for the payment of pensioner education supplement to Mr Croker.

Was the start date for pensioner education supplement correct?

4.      

Mr Croker submitted that the correct start date for the pensioner education supplement was 29 April 2008. He based this on an argument that he satisfied the requirements for the pensioner education supplement by lodging his claim in

July 2009, very soon after the Social Security Appeals Tribunal’s decision to grant disability support pension from May 2008. He submits that the pensioner education supplement should be backdated in similar fashion. 

5.      Mr Croker also said that the time taken to process the claim for disability support pension “was extensive”. He noted that “Centrelink had approximately eight months with the claim in their hands”.

6.      The Secretary submitted that the decision not to grant pensioner education supplement to the applicant prior to 15 June 2009 was correct because Mr Croker failed to lodge a claim for pensioner education supplement earlier than this date.

7. Section 1061PA of the Social Security Act 1991 provides that a person qualifies for a pensioner education supplement if, amongst other requirements, the person is undertaking qualifying study and is receiving a payment attracting a pensioner education supplement. There is no dispute that Mr Croker satisfies these requirements. Section 1061PJ prescribes that disability support pension is such a payment.

8.      

Section 11 of the Social Security Administration Act 1999 provides that, as a general rule, a claim must be made before a social security payment can be granted. Section 16 of the same Act specifies the claim must be made in writing.

Section

13(3A)  provides that a claim may be deemed to have been made on the day on which the Department was contacted, 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 more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)  the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

9.      

Mr Croker lodged his written claim for pensioner education supplement on
23 July 2009, having lodged an unsuccessful claim earlier that month. The earliest that a claim might be deemed to have been made was the date the pensioner education supplement did in fact commence to be paid to Mr Croker, being

15 June 2009. This was the date he first communicated to Centrelink that he was undertaking a course of study whilst being qualified for the pensioner educational supplement.

10.     

I understand that the pensioner education supplement qualification is contingent on receiving a payment that attracts pensioner education supplement.

Mr Croker did not make a claim for pensioner education supplement earlier because he was initially rejected for DSP. I also understand that Mr Croker has been frustrated with the delay in the processing by Centrelink of the internal review of the decision to cancel his disability support pension and the time involved in proceeding to review by the Social Security Appeals Tribunal, which eventually found in

Mr Croker’s favour.

11.     

Unfortunately, despite Mr Croker’s grievances with the initial decision to cancel his disability support pension, there is no legal basis for

Mr Croker’s pensioner education supplement payment to be backdated beyond

15 June 2009.

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell,
Senior Member

Signed: ..............................[sgd]................................................

Associate: Lloyd Doherty

Date of Hearing  14 May 2010

Date of Decision  2 July 2010 

Representative for the Applicant         Self Represented

Representative for the Respondent    Mr George Lozynsky, Centrelink Legal Services Branch