Edelmann; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1003
•4 January 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/590
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT of EMPLOYMENT and WORKPLACE RELATIONS Applicant
And
RALPH EDELMANN
Respondent
DECISION
Tribunal Robin Hunt, Senior Member, Dr M. Thorpe, Member Date 4 January 2007
PlaceSydney
Decision The decision under review is affirmed
.........................................
Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY - Newstart allowance recipient – subsequent claim for disability support pension (DSP) – backdating of DSP claim to date of Newstart claim - later claim treated as made on day on which initial claim made – tribunal satisfied that reasonable to treat claim for allowance as claim for DSP
Social Security Act 1991, ss 94, 100(2)
Social Security (Administration) Act 1999, ss 15(4A), 179
Burgess v Secretary Department of Family and Community Services [2004] FCA 136
Calderaro v Secretary Department of Social Security (1991) 33 FCR 244
Hagedorn v Secretary Department of Social Security (1996) 1028 FCA 1
4 January 2007
REASONS FOR DECISION
summary
1. The Secretary sought review of a decision of the Social Security Appeals Tribunal (SSAT) made on 12 April 2006 that favoured the respondent, Mr Ralph Edelmann. The SSAT reversed a decision of an authorised review officer that Mr Edelmann was not entitled to the backdating of payments of disability support pension (DSP) from 26 May 1997, the day when he applied for newstart allowance. The SSAT found he was entitled to arrears for the period 26 May 1997 to 12 May 1999. We have decided that the SSAT’s decision was correct. Our reasons are set out below.
issue
2. We were asked to decide whether Mr Edelmann was entitled to receive the disability support pension (DSP) from the time he applied for the “newstart” allowance in May 1997. The issues were:
§ Did Mr Edelmann qualify for DSP on and from 5 May 1997, when he claimed newstart allowance, until 13 May 1999, when he was granted DSP?
§ Was it reasonable to treat Mr Edelmann’s 1997 claim for newstart allowance as a claim for DSP?
§ If the Tribunal set aside the SSAT’s decision (which found he should receive DSP on and from 5 May 1997), should Mr Edelmann be paid DSP from some other date?
The legislation
3. Pertinent legislation is contained in both the Social Security Act 1991 (the Act) and in the Social Security (Administration) Act 1999 (the Administration Act). Mr Edelmann’s possible entitlement to backdating of the DSP comes under subsection 15(4A) of the Administration Act.
4. The qualifications for receipt of newstart allowance and for DSP are set out in the Act. Section 94 of the Act provides that, in order to qualify for the DSP, a person must meet certain tests, including those under subs (1)(a), (b) and (c)(i), as follows:
94(1) A person is qualified for disability support pension if:
a) the person has a physical, intellectual or psychiatric impairment; and
b) the person’s impairment is of 20 points or more under the Impairment Tables; and
c) one of the following applies:
(i)the person has a continuing inability to work;…
5. Section 15 of the Administration Act sets out some circumstances in which a claim for one category of social security payment can be deemed to have been made for another social security payment and, further, the day on which the person may qualify for the second type of payment. Subsections (1) and (4A) read:
(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 other social security payment on the day on which he or she made the incorrect claim.
…
4A) For the purposes of the social security law, if:
a) a person makes a claim for an income support payment (the initial claim); and
b) on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment ); and
c) the person subsequently makes a claim for the other income support payment (the later claim ); and
d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
6. Although it was not raised in these proceedings as the most appropriate provision, we note that a somewhat similar position may arise under s12 of the Administration Act. That section provides for a transfer to another payment if the person becomes qualified for another payment while receiving an income support payment. The section reads, in part:
12(1) Subject to subsection (3), if:
a) a person is receiving an income support payment; and
b) while receiving the payment, the person becomes qualified for another income support payment (the other payment); and
c) the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
……..
12(3) The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.
Background to the dispute between Mr Edelmann and Centrelink
7. Mr Edelmann supplied documentary facts and contentions. These set out that he was born on 26 October 1972, in Germany, and came to Australia at about the age of four. He is now 33 years old. Mr Edelmann obtained the Higher School Certificate after studying at Maroubra Bay High School. In 1991, he completed a security course and obtained accreditation as a licensed security officer. His accreditation was valid or was renewed until 28 September 1998.
8. Mr Edelmann started to work as a bus driver for the State Transit Authority (STA) in 1995. He had been working as a driver for only a short period when, on 1 July 1995, he was assaulted on his way home after hours. Mr Edelmann gave oral evidence that he had been delighted to obtain employment as a bus driver and had been celebrating after work with a few drinks. He had decided to walk home rather than drive after drinking. Unfortunately, he was attacked on the way home and suffered a severe head injury that left him with memory loss, impaired cognitive function and left-sided weakness. These were likely to be long term conditions. Initially, it was hoped his condition would improve with rehabilitation (T3 p 11 & 12). A Commonwealth Medical Officer commented at the time that he was likely to remain unfit for all full time work for 2 years.
9. On 4 August 1995, Mr Edelmann lodged a claim for disability support pension. The Centrelink records before us show that, on 22 September 1995, disability support pension was granted from 10 August 1995. The facts and contentions further explain that, on 17 May 1996, Mr Edelmann apparently wrote to the Department and asked it to cancel his pension because he had returned to full-time work with the STA and the Department suspended his pension for 2 years, with effect from 30 May 1996. Mr Edelmann had several accidents while driving buses and ultimately resigned from his position after he was the subject of complaints. Mr Edelmann worked for the STA from 25 May 1995 to either April 1997 (T11 p 44) or May 1997 (T10 p 36).
10. On 5 May 1997, Mr Edelmann lodged a claim for newstart allowance that was granted on 26 May 1997. On 8 April 1997, Mr Edelmann’s DSP was cancelled. It had been suspended rather than cancelled up to that time. Mr Edelmann lodged another claim for DSP on 2 September 1997, which was rejected later that month, because he did not supply further information. On 25 May 1998, he lodged another claim for newstart allowance, at the same time indicating that he had worked from March 1998 to 25 May 1998. He was granted newstart allowance on 25 May 1998.
11. Mr Edelmann again applied for DSP on 25 May 1999. His application was at first rejected but a review officer reversed this and Mr Edelmann has been receiving DSP since 13 May 1999. It was not until 2 August 2005 that Mr Edelmann asked that his newstart claim made in 1997 be treated as one for DSP. This claim was rejected. The tribunal is reviewing the SSAT’s decision that Mr Edelmann’s claim should have been backdated under s 15(4A) of the Administration Act. Mr Edelmann’s counsel pointed out that, even if his allowance could not be backdated to the date of his claim in 1997, there were other intervening dates when he had lodged claims prior to the grant in 1998.
12. The SSAT held that the power to treat a newstart allowance claim as a claim for DSP was found in the repealed s 101(2) of the Social Security Act 1991. This was not the correct provision to apply but the same power is now found in s 15(4A) of the Administration Act and the tribunal has proceeded with the review on this basis.
Medical Reports
Dr Pesi Katrak
13. Dr Pesi Katrak, a consultant in rehabilitation medicine, provided 5 reports dated 18 September 1995, 20 October 1995, 23 September 1996, 25 October 1996 and 5 September 1997.
14. In each of his reports Dr Katrak noted Mr Edelmann’s condition and prognosis. In his first report, of 18 September 1995, Dr Katrak relates that following his initial treatment for head trauma, Mr Endelmann was transferred to Prince Henry Hospital for further rehabilitation. Dr Katrak points out that there he was noted “to have significant cognitive problems”. Dr Katrak goes on to report that Mr Endelmann is “extremely keen” to return to his employment as a Road and Traffic Authority bus driver, but opines that this ambition “is obviously unrealistic in his current situation”.
15. In his next report, of 20 October 1995, Dr Katrak notes only improvement in the weakness in Mr Edelmann’s left side. He notes that the Commonwealth Rehabilitation Service (CRS) will carry out a work visit and “arrange appropriate duties” for Mr Endelmann.
16. In his report of 23 September 1996 Dr Katrak states that Mr Edelman has advised that he continues to have short term memory problems. Dr Katrak writes:
He says that sometimes he has to call the Bus Depot to find out his duty roster as he has forgotten it by the time he gets home.
17. Despite this Dr Katrak appears to confirm Mr Edelmann’s opinion that he is “coping well with his duties” as a bus driver, and notes that Mr Endelmann advises that he is able to sell tickets and give out correct change. Dr Katrak also notes Mr Endelmann as advising that he has not “had any problems at all with work”. At the end of the report, however, Dr Katrak states that he has referred Mr Endelmann to a psychologist for further assessment”.
18. In his report of 25 October 1996 Dr Katrak states that Mr Endelmann, although having made a fairly good recovery, continues to suffer “some memory impairment”. Dr Katrak also notes that Mr Endelmann has “undergone a thorough driving assessment”, conducted by the CRS. Dr Katrak reports that Mr Endelmann “was deemed capable of returning to bus driving”.
19. In his final report, dated 5 September 1997, Dr Katrak notes that Mr Edelmann’s present symptoms are of impairment to short term memory. He states that Mr Endelmann “was noted to have areas of impairment in cognitive function test” and opines that “I would anticipate that these deficits have remained unchanged.
20. In this report Dr Katrak also notes that Mr Endelmann has lost his employment with the State Transit Authority. He opines that he would agree that Mr Endelmann would have difficulty obtaining further employment because of his cognitive deficits. However, Dr Katrak reports that he is “unable to state that Mr Endelmann is permanently unfit for work”. He states that:
I offered to refer him to a Commonwealth Rehabilitation Service for an assessment of his current abilities and for advice on the sort of employment for which he may be suited.
Ms Kim Dalla-Bona
21. In her letter to Dr Katrak of 21 December 1995 Ms Dalla-Bona, a CSR case officer, reported that Mr Endelmann had been assessed by an occupational therapist and had been “deemed capable to return to bus driving”. Ms Dalla-Bona does note, however, that Mr Endelmann did not wish to have any cognitive retraining.
Dr Matheson
22. Dr Matheson provided two reports, dated 1 February 1996 and 29 August 2002. In his first report Dr Matheson notes that Mr Edelmann has some decreased memory and has resumed employment, albeit on restricted duties. In his next report, Dr Matheson opines that Mr Edelmann’s prognosis has been good and that “there will be no further deterioration as far as his head injury is concerned”.
Dr Leonard Levy
23. Dr Levy provided a hand written note, dated 11 April 2005 stating that, in his opinion, Mr Edelmann was not competent to give instruction to his legal advisor.
Dr Thomas Oldtree-Clark
24. Dr Oldtree-Clark, a Consultant Forensic Psychiatrist, provided four reports dated 20 May 2001, 19 June 2001, 18 August 2004 and 14 August 2006. In his report of 19 June 2001 Dr Oldtree-Clark opined that Mr Edelmann “has obvious signs of a frontal lobe lesion, as well as partial brain damage”. He stated that Mr Edelmann’s:
problematic lesion is the frontal lobe defect, which results in his lack of normal understanding.
25. Dr Oldtree-Clark stated that Mr Edelmann is responding to treatment “very slowly”.
consideration of the evidence
26. We note that s15(4A) permits us to take Mr Edelmann to have made the later claim for DSP on the day on which the initial claim was made provided he meets certain additional requirements. We must be satisfied Mr Edelmann is qualified for another income support payment and that it is reasonable that this subsection be applied.
27. Benefits different from those initially claimed have been allowed in the past despite the claim not meeting formalities. In SDSS v Cooper the (1990) 26 FCR 13, the Full Federal Court considered s 159(5) of the Social Security Act 1947, which was a forebear of the present of s 15(4A) of the Administration Act. The Court remarked at 18.5 that the provision, as an extension of benefits legislation, should be construed generously. Further, a benefit which ought to have been received should not be excluded because a disadvantaged person had not put in the “right” claim in a technical sense. Section 100 of the Social Security Act 1991 was a comparable provision. It was one of the provisions repealed on 20 March 2000. The Federal Court, in Scottv SDSS (1999) 57 ALD 627, followed the decision in Cooper and held that a special benefit review form submitted to the Department was a “claim” for the purposes of s 100(2). We consider that Mr Edelmann’s situation may be similar if we find that he was disadvantaged by his brain injury when he made the claim for newstart allowance.
28. In making our findings, we have borne in mind that the duty of the tribunal is, as pointed out by Senior Member M D Allen in Catholic Education Office and Human Rights and Equal Opportunity Commission [2003] AATA 899 (12 September 2003), to make the correct or preferable decision. Further, it is the duty of the applicant and the respondent to assist the tribunal in reaching the correct decision. Their roles are not adversarial: see Northrop J in McDonald v Director General Social Security (1984) 1 FCR 354 and Deputy President Todd in Re Cimino and Director General of Social Security (1982) 4 ALN N106.
29. Mr Edelmann’s counsel put to us that we might accept the SSAT’s finding that Mr Edelmann was a truthful witness and that the status quo should remain in this respect. We do not agree with this proposition and find no evidentiary burden has been reversed by the circumstance that the SSAT previously found in favour of Mr Edelmann. We do not accept that the status quo found as at the date of the SSAT decision must remain. We must make our own findings on the balance of probabilities based on the evidence before us. See McDonald v Director General of Social Security [1984] 1 FCR 354. Mr Edelmann must make his case in the usual way and we shall make our findings on the balance of probabilities on the material before us. Also see the judgment of Brennan J (as he then was) in Re: Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 636 as to the duty of the tribunal.
Did Mr Edelmann qualify for DSP on and from 5 May 1997, when he claimed newstart allowance, until 13 May 1999, when he was granted DSP?
30. There is no doubt Mr Edelmann suffered serious brain injuries in an assault on 1 July 1995. This is illustrated by various medical reports before us and particularly in the reports furnished with the initial claim form for DSP on 4 August 1995.
31. Mr Edelmann told us that he had returned to work with the STA 6 months after the assault in 1995. He gave evidence he had several accidents. Records obtained from the STA and tendered to us showed a history of accidents and complaints from the public about Mr Edelmann. Mr Edelmann gave further evidence that the STA had sent him for driver retraining more than once but eventually made it impossible for him to continue to work there so he resigned. His resignation letter is before us. In the letter, he complains about the passengers he has to deal with and says he has had enough.
32. Mr Edelmann told us he had been unable to sleep after the assault and this left him very tired. He said he came to work feeling exhausted and was inadvertently having micro sleeps while driving a bus during the day, leading to accidents. Ultimately, he was placed in a position that forced him to leave the STA although he loved driving and wanted to be able to work. In his application to this tribunal, Mr Edelmann referred to having bus crashes due to his chronic sleep deprivation disorder. Counsel for the Secretary drew our attention to a small number of accidents or complaints made about Mr Edelmann to the STA before the assault. However, we note, after examination of the accident reports before us, that the accidents which took place after the assault generally are of a more serious nature.
33. Mr Edelmann gave evidence about his work history and his desire to be able to work. He told us he had tried, among other things, to hold down a job as a driver delivering pizzas. However, he was told that he looked too tired and should go home and get some sleep. Although Mr Edelmann had trouble recalling the time sequences of events, we accept his evidence as truthful to the best of his ability and it is largely supported by documents before us. He impressed us with his distress that he was no longer able to hold down a driving job since his injury. We accept that he was telling the truth when he gave evidence that he missed out on work when he turned up to deliver pizzas looking so fatigued that he was told to go home to get some sleep.
34. The present difficulties about Mr Edelmann’s continuing entitlement to DSP arose from the time he returned to work with State Transit in May 1996. Mr Edelmann then gave the appearance of being able to cope with a job and no longer needing to rely on assistance because of his injuries. However, he had accidents driving buses and was the subject of complaints by members of the public. Mr Edelmann gave evidence he sometimes fell asleep while driving. We agree with his submission he was not capable of working as a bus driver. He ceased working in that capacity approximately a year later after a series of accidents. We also accept his evidence that his problems with sleep and fatigue led to him ceasing security work and delivering pizzas. His work history, following the assault, is that of a person who made repeated unsuccessfully attempts to return to work.
35. We make a comparison with Mr Edelmann’s situation and the case of Re: Parsaand Secretary, Department of Family and Community Services [2004] AATA 25, where the tribunal took noted of earlier cases about the workplace environment. The tribunal said:
32. In Re Hamal and Secretary, Department of Social Security (1993)30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:
When considering the issue of work in this context, the tribunal is of the view that it is the "normal workplace" against which a person's abilities are to be judged, not the workplace of the "benign employer".
33. Relying on Hamal the Tribunal in Triantafillou and Secretary, Department of Family and Community Services [2003] AAT 56 interpreted `work' to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.
36. We agree with Mr Edelmann’s counsel’s submission that a person repeatedly falling asleep driving a bus or while on duty as a security guard is manifestly not fit for that work. Similarly, a person turning up to deliver pizzas, who looks so fatigued that he is told to go home to get some sleep is not doing that work successfully. Mr Edelmann’s work history, following the assault, is consistent with his lacking the ability to work 30 hours a week in any normal work place.
37. We accept that Mr Edelmann was confused about what to claim. This is consistent with his oral evidence that he badly wanted to work and that he loved driving but had met with difficulties since his injury. On 22 August 1997, a file note reveals he said he no longer wanted DSP but wanted to get a job. Yet on 2 September 1997, he lodged a new claim for DSP but then didn’t return necessary documents for the claim to be processed. In 1999, he lodged a DSP claim but thought he may be able to return to work if he had a place to live. He says on the claim form that he is living on the street in a van with no electricity. He also states that he should have asked Centrelink to put him back on DSP when he ceased working for the STA, who “didn’t trust my injured head anymore”. He goes on to write on the form that “like a short term memoryless [sic] idiot, I applied for the dole I’ve been on ever since”. To the question whether he will be able to return to work within 6 months, he answers maybe if he has a secure place to live first.
38. On 20 May 1999, Dr P Thomas made a file assessment for Health Services Australia (HAS). The doctor recorded that, since the assault in 1995, Mr Edelmann had lived on the streets and exhibited bizarre behaviour. He noted that Mr Edelmann’s doctor was not aware of any formal psychological assessment and that it would be worthwhile obtaining one and reviewing the file with this. On 13 October 1999, the authorised review officer noted that Mr Edelmann’s doctor considered him unfit for work, with poor cognitive functioning, poor memory and poor ability to cope in a work situation. A psychologist examined him on 9 June 1999 as part of the assessment and noted poor social and personality traits but attributed these to his pre-injury presentation. However, another psychologist noted numerous problems on 2 November 1999, including an inability to exercise reasonable judgment, a low level of insight into his limitations and low adaptability.
39. There were assessments in 1996 that Mr Edelmann was considered able to return to work as a bus driver. There are reports from Dr Katrak dated 23 September 1996 which say Mr Edelmann was coping well with his duties as a bus driver. There also is the report of Ms Dalla-Bona, dated 21 December 1995, which says that after a refresher course, he was deemed capable of returning to bus driving. However, Mr Edelmann continued to have difficulties despite these hopeful assessments.
40. On 3 August 2005, Dr Levy wrote that Mr Edelmann had suffered from a chronic mood disabling disorder since the assault. Mr Edelmann told us that some time after his injury and initial treatment, he forgot that medication and doctors existed and did not seek help, although he could not sleep and was very depressed.
41. Dr Thomas Oldtree Clark has been Mr Edelmann’s treating psychiatrist since 2001. On 8 November 2005, the doctor stated that Mr Edelmann is sometimes quite confused and unable to manage his affairs and has been like this since 1995. On 8 August 2006, Dr Levy stated that, since the 1995 head injury, Mr Edelmann had suffered from chronic anxiety, depression, poor sleep, recurring agitation and has complained of memory problems and Dr Levy did not believe there was any significant change between 1997 and 1999.
42. The SSAT placed weight on the fact that, on 2 September 1997, a Centrelink officer issued Mr Edelmann with a DSP claim form and its inference that the officer believed he should be on DSP. We note that the Centrelink records before us show that an authorised review officer on 13 October 1999 spoke to Mr Edelmann and thought it necessary to consult and then obtain an opinion from another psychologist about the case, rather than affirming the decision to refuse DSP.
43. While the evidence in 1999 was equivocal because psychologists came to different views about Mr Edelmann’s condition, we note that the psychologists’ reports of June 1999 and November 1999 refer to testing Mr Edelmann for different impairments. The first tested his cognitive functioning while the second test his personality and social functioning. Mr Edelmann’s cognitive functioning is high in many respects as is indicated by his satisfactorily meeting STA requirements when first trained for the job. The records before us show he met various tests but this does not overcome his limitations as to personality and social functioning.
44. The initial assessment and report 3 weeks after the assault was that rehabilitation may change or improve Mr Edelmann’s condition. However, while Mr Edelmann has no obvious physical effects now, there is medical material before us that strongly suggests Mr Edelmann had a continuing inability to work as a result of the assault. This includes the period in question, from 26 May 1997 until 13 May 1999.
Qualification for DSP – s 15(4A)(b)
45. We have drawn the conclusion that, on the balance of probabilities, Mr Edelmann did qualify for the DSP from 26 May 1997 until 13 May 1999. We have reached this finding on the basis of the medical opinions before us as well as Mr Edelmann's oral evidence and the records of the STA as to Mr Edelmann’s work performance. We do not doubt Mr Edelmann’s truthfulness. While he had difficulty remembering exact times and places of events, he impressed us as doing his best to recall when various incidents occurred. Most importantly, Dr Thomas Oldtree Clark, who has been Mr Edelmann’s treating psychiatrist since 2001, observed that Mr Edelmann is sometimes quite confused and Dr Levy stated that, since the 1995 head injury, Mr Edelmann had suffered from chronic anxiety, depression, poor sleep, recurring agitation and has complained of memory problems. We find that, although Mr Edelmann wished to work and did hold down a job with the STA for a time and also was a pizza delivery driver and qualified to do security work, he was not fit to carry out any of this work due to his psychiatric condition. This condition did not improve after Mr Edelmann left hospital in 1995 and has persisted throughout. Centrelink assessed Mr Edelmann as being entitled to DSP from 10 August 1995 and again on 13 May 1999, when he was granted DSP which he was still receiving at the time of the hearing.
46. In reaching our findings, we take a similar approach to that in the case of Parsa and the other tribunal cases referred to in that decision. We take into account that, although Mr Edelmann was able to retain his job with the STA for some months after the assault, he was no longer able to perform his duties satisfactorily and could not met the demands of the workplace. Despite his desire to work, he was no longer fit to perform the duties the job of bus driver required. We also accept his evidence that he had trouble holding down a job as a pizza delivery driver because of his chronic tiredness brought on by his injuries.
Is it reasonable to treat Mr Edelmann’s 1997 claim for newstart allowance as a claim for DSP?
47. The Secretary refers to the delay, the employment history, the lack of contemporaneous medical evidence and the failure of Mr Edelmann to pursue appeal rights. We have already found the medical evidence is sufficient for us to be satisfied Mr Edelmann did qualify for the DSP at the relevant period. We have also dealt with the employment history and have found that Mr Edelmann was unable to carry out his workplace duties satisfactorily due to his mental condition. The fact that he was kept on as a driver for a time does not make it less than reasonable to consider his claim for the newstart allowance as one for DSP. With the continuing effects of his injuries, Mr Edelmann can not be expected to have formed a judgment about his entitlements in the same way as a person who did not have his psychiatric problems.
48. In respect of delay, Mr Edelmann indicated his confusion about his entitlement in 1999 when he raised his failure to claim DSP earlier in his application form received on 6 May 1999. He said in part 1 of the form that he lost his job with State Transit due to his head injury and further wrote, at part 4 of the form:
When State Transit layed (sic) me off, I am sure because they didn’t trust my injured head any more, I forgot to tell Centrelink to put me back on D.P. Instead, like a short term memoryless idiot, I applied for the dole I’ve been on ever since.
49. As well, on 13 October 1999, the authorised review officer noted that Mr Edelmann’s doctor considered him unfit for work, with poor cognitive functioning, poor memory and poor ability to cope in a work situation. In any event, we agree with the submission that the nature of Mr Edelmann’s medical condition and his related inability to manage his affairs and understand or accept the nature and extent of his disability excuses the delay which occurred. It was the very condition that qualified him for DSP that led to his failure to pursue a claim for DSP in 1997.
50. The Full Court’s comments in Cooper, which we have already quoted, were made in respect of an earlier provision but apply equally to s 15(4A). The provision
should be construed generously so that the palliation it offers of any rigidity … may be fruitful in favour of the disadvantaged persons with whose claims it is concerned. Its language should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by the failure of a disadvantaged person to put in the "right" claim in a technical sense.
51. It follows that we are satisfied that it is reasonable to apply s 15(4A) in Mr Edelmann’s favour.
conclusion
52. In all the circumstances and for the reasons set out above, we find that Mr Edelmann satisfies the requirements of s15(4A) of the Administration Act.
decision
53. The decision of the SSAT is affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Rhonda Pietrini
AssociateDate of Hearing 28 November 2006
Date of Decision 4 January 2007
Counsel for the Applicant Mr Dube
Solicitor for the Applicant Karen Lockerby
Counsel for the Respondent Craig Colborne
Solicitor for the Respondent Elizabeth Biok
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