Douglas and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2895

Douglas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2895 (8 August 2018)

Division: GENERAL DIVISION

File Number(s):       2018/1644

Re: George Douglas

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

Tribunal:

Place:Canberra

Tribunal:                Deputy President Ian Hanger AM QC

Date:  8 August 2018

Place:                   Canberra

The Tribunal affirms the decision under review.

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

Deputy President Ian Hanger AM QC

Catchwords

SOCIAL SECURITY – age pension – compensation preclusion period – person’s start date for claim – accepted as contact in relation to a claim – miscalculation – special circumstances – CDDA – Compensation for Detriment caused by Defective Administration

Legislation

Social Security (Administration) Act 1999 ss 11, 16, 41, 42, 13(3A)

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Deputy President Ian Hanger AM QC

1. This is an application to review a decision of 28 February 2018 the Social Services and Support Division which determined that the applicant is to be paid the age pension from 04/05/2017.  The applicant contends that it should have been paid from 10/1/2017.

2. The following are the relevant facts:

   ·Mr Douglas was born On 11/01/1951

   ·In the normal course of events he would have been entitled to claim the aged pension from 11/01/2016

   ·On 17/04/2015 the Department made a decision that the applicant was subject to a compensation preclusion period ending on 23/10/2017

   ·On 29/12/2016, he requested a review of the preclusion period

   ·On 04/01/2017 the Department determined that the preclusion period was correct

   ·On 04/05/2017, the applicant contacted the Department about claiming a Concession Card and the Department granted the applicant’s claim for a Low Income Health Care Card

   ·On 23 and 24  May  2017, the applicant contacted the Department about claiming Age Pension

   ·On 24/5/2017,  the Department sent the applicant an Age Pension Claim Form and an Income and Assets Declaration Form

   ·On 09/06/2017, he lodged a claim for Age Pension

   ·On 6/7/17 his claim for Age Pension was rejected on the basis that he was required to serve a compensation preclusion period until 23/10/2017

   ·On 06/10/2017, the Administrative Appeals Tribunal determined that his compensation preclusion period ended on 10/01/2017

   ·On 08/12/2017 his claim for Age Pension was granted from 05/06/2017

   ·On 19/12/2017, the authorised review officer determined that he should be paid the Age Pension from 04/05/2017

   ·On 28/02/2018, that decision was affirmed and he has applied for review of that decision.

3. Section 11 of Social Security (Administration) Act 1999 (the Act) provides that a person who wants to be granted a social security payment must make a claim for the payment in accordance with Division 1 of the Act.

4. Section 16 deals with how to make a claim and requires the claim to be in writing and lodged on a form approved by the Secretary.

5. Sections 41 and 42 provide that a person’s start date for a payment is the date on which the person makes the claim for that payment, provided the person was qualified for the payment.  That means that prima facie the start date for Mr Douglas was 9 June 2017.

6. Unfortunately, as at the date of lodging his claim for a pension, the applicant would be under the impression that his preclusion period had not expired, whereas a later determination established that it had expired in January 2017.  But for the existence of the preclusion period, Mr Douglas would have applied for and been entitled to a pension in January 2017.

7. Section 13(3A) of the Act provides for a claim to have been deemed to have been made on an earlier date than the actual claim 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,

   the person is taken to have made a claim for the Social Security payment on the day on which the department was contacted.

8. The Guide to Social Security Law Instruction 8.1.1.60 deals with the type of contact that would be accepted as contact in relation to a claim for a Social Security payment and provides that “ANY contact that deals with assistance from Centrelink is a contact in relation to ANY payment for which the person is qualified.  The person does NOT need to mention a specific payment or concession card.”

9. Applying this instruction and the provisions of Section 13(3A):

   (a) the applicant contacted the Department about a claim for a Social Security payment on 4/5/2017;

   (b) the applicant was eligible for the Age Pension by 4/5/2017;

   (c) the Department gave the applicant a written acknowledgement of his contact of 4/5/2017, by way of the decision letter dated 19/12/2017;

   (d) the applicant lodged a claim for the Age Pension on 09/06/2017, which is a date falling within 13 weeks of 04/05/2017;

   (e) the miscalculation of the applicants preclusion period was a special circumstance that prevented the applicant from making a claim for Age Pension on a date earlier than 04/05/2017.

10. The applicant submits that the pension should start from an earlier date and he relies on the fact that on 29/12/2016 he contacted the Department seeking a review of the decision made on 17/04/2015 in relation to the period of preclusion.  Unfortunately, he did not make a claim for the age pension within 13 weeks of that date and therefore does not satisfy section 13(3A)(d).

11. The legislation does not permit me to decide that he should receive the pension from the amended date for the expiration of the preclusion period which was 10 January 2017. It would appear that this has occurred through an error in the calculation of the preclusion period and consideration should be given to a CDDA payment.

12. I affirm the decision of 28 February 2018.

13.     I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of  Deputy President Ian Hanger AM QC.

14.      

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

Associate

Dated: 8 August 2018

Date(s) of hearing:	8 August 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services