De Guisa and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 547
•11 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° 2011/1038
GENERAL ADMINISTRATIVE DIVISION ) Re
DANNY DE GUISA
Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date11 July 2011
PlaceMelbourne
DecisionFor reasons given orally at the hearing on 11 July 2011 the Tribunal varies the decision of the Social Security Appeals Tribunal dated 15 February 2011 to provide as follows:
1.That the date of the Newstart Allowance is to commence from 5 November 2009.
………….[signed]……………
Member
NEWSTART ALLOWANCE – whether claim for review within 13 weeks – medical condition – date of claim – backdate 4 weeks – waiting period – whether financial hardship - decision affirmed
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 ss 14A, 19C, 620, 621
Social Security (Administration) Act 1999 ss 11, 13, 109, Schedule 2
Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279
Secretary, Department of Families, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978
Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw [2007] AATA 1691
REASONS FOR DECISION
8 August 2011 Mr C. Ermert, Member
INTRODUCTION
1. These reasons for decision are substantially the same as those given orally at the hearing on 11 July 2011. The material under the headings INTRODUCTION, THE HEARING and THE EVIDENCE has been added for completeness.
2. In October 2008 Mr De Guisa, the applicant in this case, stopped working due to anxiety/depression. On 26 June 2009 Mr De Guisa contacted Centrelink by telephone. Centrelink provides services for the Department of Education, Employment and Workplace Relations. He stated his intention to apply for Newstart Allowance. A Centrelink officer advised him to submit a written application by 10 July 2009 and sent a notice to Mr De Guisa to this effect. Mr De Guisa was not well enough to submit the application. He next contacted Centrelink by telephone on 26 November 2009. On 10 December 2009 Mr De Guisa lodged a written claim for Newstart Allowance. On 17 December 2009 Centrelink advised him of the grant of the allowance, with a start date of 6 November 2009. This is the original decision.
3. On 17 March 2010 Mr De Guisa contacted Centrelink by telephone to ask for a review of the start date but did not provide details. He was unwell and did not feel comfortable discussing these complex issues over the telephone. Mr De Guisa did not contact Centrelink again until 17 November 2010. He requested a review of the start date, seeking that his Newstart Allowance be paid from October 2008, when he first became ill. On 14 December 2010 a Centrelink Authorised Review Officer (ARO) affirmed the original decision to start the allowance on 6 November 2009. The ARO’s decision was in turn affirmed by the Social Security Appeals Tribunal (SSAT) on 15 February 2011. The present matter is an application for review of the SSAT decision.
THE HEARING
4. Mr De Guisa appeared in person and gave oral evidence. Ms Ailsa Bramley, a Centrelink advocate, represented the Respondent. Mr De Guisa tendered a medical certificate by Dr G Wood and a Job Network document, taken into evidence as Exhibits A1 and A2 respectively. The Tribunal also had before it the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
THE ISSUES
5. The issues to be determined are whether Mr De Guisa lodged a claim for a review of the original decision within 13 weeks of being notified of the decision and whether the start date for the payment of his Newstart Allowance can be backdated before 6 November 2009.
THE EVIDENCE
6. In his oral evidence, Mr De Guisa said that his medical condition caused him to cease work in October 2008. He was not well enough at that time to contact Centrelink in order to lodge an application for Newstart Allowance. On 26 June 2009 he was able to telephone Centrelink about the allowance. However, he was not well enough to lodge a written application. He next contacted Centrelink by telephone on 26 November 2009 and followed up with a written application on 10 December 2009.
7. Mr De Guisa referred to the medical certificate dated 3 December 2010 (Exhibit A1, T documents page 20) in which Dr Wood stated that Mr De Guisa was unfit for work from 1 October 2009 to 31 December 2009. Mr De Guisa also referred to the medical certificate, dated 22 March 2010 (T documents page 38), in which Dr Wood stated his opinion that Mr De Guisa was unfit for work from 2 April 2009 to 2 July 2009. He also referred to the Job Capacity Assessment Report (T documents page 33), in which Liz Pincott, psychologist, recorded Mr De Guisa’s inability to undertake any suitable activity from 23 December 2009 to 23 April 2010.
8. Mr De Guisa was asked about his telephone call to Centrelink on 17 March 2010. He said that during the conversation he told the Centrelink officer that he was unwell, that he wanted to appeal against the start date, and that he wanted a review of the start date.
CONSIDERATION
9. The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
10. The Tribunal first considered whether Mr De Guisa met the provisions of the Administration Act in making his request for a review of the original decision. Section 109 of the Administration Act provides:
109 Date of effect of favourable determination resulting from review
(1) If:
(a) a decision (the original decision) is made in relation to a person’s social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
11. The original decision was made on 17 December 2009 and a notice was sent to Mr De Guisa on that date. Mr De Guisa contacted Centrelink by telephone on 17 March 2010, which is within the 13 weeks stipulated in section 109 (1) (c). The question is whether Mr De Guisa’s telephone call constitutes an application to the Secretary for a review of the original decision.
12. The Secretary concedes that there is no requirement that a request for review be made in writing. In its Statement of Facts and Contentions dated 1July 2011 (at paragraph 43) the Secretary notes that the file notes of the conversation make no reference to a specific decision and record that Mr De Guisa declined to provide further details, advising that he preferred to make his request in writing. The Secretary contends that Mr De Guisa had other opportunities to notify Centrelink that he disagreed with the start date but failed to do so. The Secretary submits There is no evidence that a decision was identified or suggested by Mr DeGuisa at that time; and the timeframe between Mr Deguisa’s contacts, a period of some eight months, suggests that Mr Deguisa had not decided on pursuing a review of the start date at the date of the contact on 17 March 2010.
13. In support of these contentions, the Secretary refers the Tribunal to the decisions in Ingram and Secretary to the Department of Family and Community Services [2004] AATA 279, Secretary, Department of Families, Community Services and Indigenous Affairs and Lamotte [2009] AATA 978, and Secretary, Department of Families, Community Services and Indigenous Affairs and Shaw [2007] AATA 1691. Based on these decisions, the Secretary contends that an application for review requires the customer to have an intention to challenge the decision at the time of the relevant contact, and that not all requests for information about a decision amount to an application for review.
14. The Tribunal notes that the file notes of the 17 March 2010 telephone call contain the words “backdating” and “I want to ask for a review” (T documents pages 103 and 104). The Tribunal considers that these notes align reasonably with Mr De Guisa’s evidence in which he said he wanted to “appeal against the start date”, and that he “wanted a review of the start date”.
15. In Ingram the Tribunal said that ... the Tribunal would need to be satisfied that the substance of the decision was referred to in such an inquiry. In Lamotte the Tribunal found that ... there must be, at least, some evidence of communication by a person that they do not agree with a decision, are unhappy with the decision or believe that it is incorrect. In this case the Tribunal is satisfied that Mr De Guisa, by using the words appeal against the start date and wanted a review of the start date, referred to the substance of the decision and made it sufficiently clear that he did not agree with the decision. Accordingly, the Tribunal is satisfied that, in his telephone contact on 17 March 2010, Mr De Guisa applied for a review of the original decision. The Tribunal finds accordingly. This finding opens the way for the Tribunal to review the start date for the allowance.
16. The undisputed evidence is that, on 26 June 2009, Mr De Guisa telephoned Centrelink about lodging a claim for social security payments and that a notice was sent to him on that day. Mr De Guisa did not contact Centrelink again until 26 November 2009. Section 13 of the Administration Act deems a claim to have been made where a person contacts Centrelink and advises of an intention to make a claim, and a claim is made within 14 days of the date of contact (or 13 weeks if there are special circumstances). There are no provisions to accept a claim lodged later than 13 weeks, regardless of the circumstances. Mr De Guisa did not follow up the 26 June 2009 telephone call until 26 November 2009, which is well outside the 13 week period. Hence the provisions of section 13 of the Administration Act preclude Mr De Guisa’s contact on 26 June 2009 being deemed to be a claim.
17. Mr De Guisa followed his 26 November 2009 telephone call to Centrelink by lodging a written claim for Newstart Allowance on 10 December 2009. This is within the 14 days stipulated in section 13 of the Administration Act. As the Centrelink officers and the SSAT found, this means that Mr De Guisa meets all of the provisions of section 13 and that his claim is deemed to have been made on 26 November 2009.
18. The Tribunal now considers whether the start date can be backdated. Section 11(2) of Schedule 2 of the Administration Act provides:
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.
19. In its Facts and Contentions, the Secretary states:
27. Despite the absence of medical evidence to verify that Mr Deguisa was prevented from lodging a claim before 26 November 2009 by his condition, the Secretary accepts that Mr Deguisa’s incapacity prevented him from lodging a claim within 5 weeks of becoming incapacitated.
28. This means the start date for Mr Deguisa’s newstart allowance claim is backdated for a period of 4 weeks ending immediately before the day on which the claim was made. As Mr Deguisa’s claim was taken to have been made on 26 November 2009, the 4 week period ends on 25 November 2009, making the start date 29 October 2009.
20. The Tribunal agrees with and accepts this contention and finds that, subject to the application of a waiting period, the start date for the allowance is 29 October 2009.
21. Sections 620 and 621 of the Act impose a seven day waiting period on the payment of Newstart Allowance, except in cases of severe financial hardship. Section 19C of the Act defines severe financial hardship in terms of the applicant’s liquid assets being less than the maximum fortnightly payment. In Mr De Guisa’s case, the maximum fortnightly payment in November 2009 was $462.00 per fortnight. In his claim for Newstart Allowance, Mr De Guisa declared assets of shares and a savings account amounting to $3,492. The Tribunal is satisfied that Mr De Guisa’s circumstances do not fit within the definition of severe financial hardship. Accordingly, the Tribunal finds that the provisions of section 621 of the Act apply and that a waiting period of seven days is correctly imposed on the start date. This means that the start date for Mr De Guisa’s Newstart Allowance is 5 November 2009.
22. The Tribunal notes the difference of one day between this finding and that of the original decision. In her oral submissions, Ms Bramley stated that the difference was due to the determination of the hour taken for the start of the day. The Tribunal accepted this submission in its finding of 5 November 2009 as the start date.
DECISION
23. The Tribunal varies the decision under review such that the start date for Mr De Guisa’s Newstart Allowance is 5 November 2009. The Tribunal orders that the matter be remitted to the Respondent for the payment to Mr De Guisa of Newstart Allowance for 5 November 2009.
I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, MemberSigned:.................................[sgd]….......................................
Associate Mya AnumarlapudiDate of Hearing & Decision 11 July 2011
Date of Written Reasons 8 August 2011
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms Ailsa Bramley, Centrelink Advocacy Branch
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