Dellaportas and Department of Family and Community Services - [2001] AATA 837

DECISION AND REASONS FOR DECISION [2001] AATA 837

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/695

GENERAL ADMINISTRATIVE DIVISION
  Re:                TOM DELLAPORTAS AND
  STAMATA DELLAPORTAS
  Applicants
  And:              SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal: Ms Regina Perton, Member

Date:5 October 2001
Place:Melbourne
Decision:The Tribunal varies the decisions of the Social Security Appeals Tribunal under review in the following terms:
1.the start date for payment of disability support pension to Mr Dellaportas is 6 September 2000; and
2.the start date for carer payment to Mrs Dellaportas is 14 September 2000.

(sgd) Regina Perton
Member
SOCIAL SECURITY – disability pension – carer payment – start date – limited discretion to backdate pension to start of incapacity for work
Social Security Act 1991 s198(3)
Social Security Administration Act 1999 s13, s16, s185, Schedule 2 Clauses 3, 7, 8 , 11(2)

REASONS FOR DECISION

5 October 2001 Ms Regina Perton, Member

This is an application by Mr Tom Dellaportas (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 17 April 2001. The SSAT set aside the decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services dated 12 February 2001, varying the date from which payment of a disability support pension should be made ("start date") from 4 October 2000 to 15 September 2000.
The applicant applied for, and on 6 July 2001, was granted, an extension of time in which to lodge his application for review to this Tribunal. The Tribunal also joined Mrs Stamata Dellaportas (the applicant's wife) as a party to the proceedings. The applicant's wife had also lodged an application for review with the SSAT in relation to the start date of a carer payment. The SSAT varied the start date of her carer payment from 4 October 2000 to 15 September 2000.
The hearing of this matter took place on 10 September 2000 with a Greek interpreter facilitating communication. The applicant and his wife appeared personally. The respondent was represented by Mr D Perdon of Centrelink's Administrative Law Team. The written material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 and a submission dated 28 August 2001 from the respondent.
BACKGROUND
The applicant, who is aged 58, became severely ill on 20 April 2000 and was hospitalised from that date until 14 September 2000, initially at the Austin Hospital and then at the Royal Talbot Rehabilitation Hospital. He was paralysed from an initially undiagnosed condition, Guillan Barre Syndrome, and underwent a tracheotomy with the result that he was unable to speak or move for much of the time he spent in hospital. The applicant lodged a written application for a disability support pension on 13 October 2000, following his discharge after almost five months in hospital. Centrelink granted him a pension from 4 October 2000, the day on which he had first called into their office to enquire about the benefit. The applicant sought review in the SSAT of the delegate's decision. The SSAT varied the starting date of the pension to 15 September 2000, being four weeks prior to the written application for the benefit. The applicant's wife lodged a written application for a carer payment on 23 October 2000. Her payment was backdated by Centrelink to the day that her husband first became eligible for a disability support pension, namely 4 October 2000. She, too, applied to the SSAT which varied her date of eligibility for the payment to 15 September 2000, being the date to which her husband's pension was backdated.
EVIDENCE
The applicant told the Tribunal that he had been unable to communicate orally or in writing whilst in hospital. He said that he therefore had been incapable of making an application for a disability support pension personally. He stated that he was incapable of giving instructions to someone else to do so on his behalf. The applicant said that he should not be disadvantaged because he had been physically unable to claim his entitlement due to the nature of his illness. He had been working prior to falling ill but can no longer do so. He believed that his pension should be backdated to the date he was hospitalised given his circumstances.
The applicant's wife told the Tribunal that she had been visiting her husband in hospital every day and confirmed the extent of her husband's incapacity. She told the Tribunal that their elder son, aged 30, had contacted Centrelink whilst his father was still in hospital and had been told that his father was not eligible for financial support because he owned a second house. The applicant's wife said that it was not until her husband was in rehabilitation that a therapist told them that he appeared to be eligible for financial assistance and suggested that they should contact Centrelink. The applicant's wife does not know the date when their son made enquiries of Centrelink or what questions he asked in relation to his father's eligibility. The applicant's wife said that their son was moving to Sydney with his girlfriend and it was not possible to get pertinent evidence.
At the end of the hearing, the applicants reiterated that it was unfair that they could not get the payment backdated to the start of the applicant's illness.
CONSIDERATION OF THE ISSUES
The Social Security (Administration) Act 1991 (the Act) sets out the administrative arrangements for disability support pensions and carer payments for eligible persons. Provisions pertinent to this matter are set out below:
13(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.
16(1)       A person makes a claim for a social security payment or a concession card:
(a)by lodging a written claim for the payment or card; . . .
(b)by making the claim in accordance with subsection (7).
(2)       A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.
. . .
(4)          A written claim is lodged by being delivered:
(a)to a person apparently performing duties at a place approved for the purpose by the Secretary; . . .
. . .
(7)       A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
Schedule 2—Rules for working out start day
Part 2—General rules
Start day—general rule
3.           If:
(a)a person makes a claim for a social security payment; and
(b)the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made…
Part 3—Backdated start day
Division 1—Explanatory
Explanation of Part
7.           n some circumstances, a person's start day in relation to a social security payment may be earlier than the day worked out under Part 2 of this Schedule. This Part contains rules that enable the start day to be worked out in those circumstances.
Division 2—Rules applying to all or most social security payments
Claim made soon after partner's claim
8.           If:
(a)a person makes a claim for a social security benefit or pension within 14 days after the person's partner makes a claim for a social security benefit or pension; and
(b)the person's claim and the partner's claim are both granted;
the person's start day in relation to the benefit or pension is the first day on which the person is qualified for the pension or benefit in the period starting on the partner's start day in relation to the pension or benefit granted to the partner and ending on the day on which the person made the claim for the pension or benefit.
Incapacitated claimant
11.(1)      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 within 5 weeks after the day on which the incapacity begins; and
(c)the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;
the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.
11.(2)      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.
It was not disputed that the applicant and the applicant's wife contacted Centrelink on 4 October 2000 in relation to the disability support pension and the carer payment. The applicant's written claim was lodged 9 days later on 13 October 2000. The applicant's wife's written claim was lodged on 23 October 2000, 10 days after that of her husband. It was also not disputed that the applicant was suffering from a medical condition that was serious enough to qualify for a disability support pension for more than 5 months prior to lodgement of the claim.
The Act does not allow a decision-maker to exercise unfettered discretion in relation to the start date of a social security benefit or pension. Some limited backdating, however, is allowed for in the Act.
In relation to the disability support pension, s13 of the Act provides that a claim is deemed to have been lodged on the date a person who is eligible for that pension contacts the Department of Family and Community Services (ie Centrelink) provided that the person lodges a written claim within 14 days of that contact. If the incapacity for work began more than 5 weeks before the deemed date of lodgement, clause 11(2) of Schedule 2 of the Act allows a claim to be backdated for a maximum of 4 weeks provided the decision-maker is satisfied that the sole or principal reason for the late application was the medical condition itself.
Centrelink's written evidence, which the applicant does not dispute, indicates that the applicant enquired about the disability support pension on 4 October 2000 and he lodged the written claim on 13 October 2000, less than 14 days after making the enquiry. The Tribunal finds that the applicant's claim was made on 4 October 2000. The applicant's oral and written evidence indicates that his incapacity for work commenced on 20 April 2000. The Tribunal finds that the applicant's claim was made more than 5 weeks after the incapacity began.
In his oral evidence, the applicant told the Tribunal that he was unable to speak or move for much of his time in hospital and hence he was unable to make an enquiry personally or through an agent. He indicated that their son had made enquiries of Centrelink at some time during the almost five months he was hospitalised and had been told that his father was not eligible for any payment. There is no available evidence to indicate when that enquiry was made by their son or what questions were asked. Furthermore, as no written application was made as a result of the son's enquiry, the date is irrelevant for the purposes of this decision. The Tribunal is satisfied that the applicant's medical condition was the principal cause of the applicant's failure to make a claim within five weeks after the day on which the incapacity began.
In light of the above, the Tribunal finds that the applicant's start date for the disability support pension is four weeks before the date of lodgement, namely 6 September 2000.
The applicant's wife lodged her claim for a carer payment on 23 October 2000. The applicant lodged his written claim on 13 October 2000, 10 days earlier. The evidence indicates that the applicant was released from hospital on 14 September 2000. Clause 8 of Schedule 2 of the Act allows the applicant's wife's carer pension to be backdated to a date no earlier than her husband's start date. However, s198(3) of the Social Security Act 1991 must also be taken into account in determining the start date. Section 198(3) states that for a carer to be eligible for a carer pension, the care "must be provided in a private residence that is the home of the care receiver". The applicant's first day at home after release from hospital was 14 September 2000. Therefore, although the applicant's start date for a disability support pension is 6 September 2000, his wife cannot be paid from that date as the applicant was still in hospital at that time. The carer payment for the applicant's wife can only commence on the date she started caring for him at home, namely 14 September 2000. The Tribunal finds that the start date for the carer payment for the applicant's wife is 14 September 2000.
The applicant told the Tribunal that their son was given incorrect information by Centrelink in relation to the applicant's eligibility for a pension. If the applicant has evidence that their son was given incorrect information, he can raise that matter with Centrelink or other appropriate bodies. There is no discretionary power within the social security legislation to backdate the applicant's disability pension any further back than 6 September 2000.
DECISION
The Tribunal varies the decisions of the Social Security Appeals Tribunal under review in the following terms:
1.the start date for payment of disability support pension to Mr Dellaportas is 6 September 2000; and
2.the start date for carer payment to Mrs Dellaportas is 14 September 2000.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of
Ms Regina Perton, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  10 September 2001
Date of Decision:  5 October 2001
Solicitor for the Applicant:           Nil — self-represented
Solicitor for the Respondent:       Nil — Mr D. Perdon, Advocate with Centrelink