ERIN McNAMARA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 166
•3 February 2012
[2012] AATA 166
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4613
Re
ERIN McNAMARA
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Dr Roderick McRae
Date 3 February 2012 Place Melbourne Decision Summary For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Dr Roderick McRae
SOCIAL SECURITY Newstart allowance lodgement date depression - discrimination related to depression - incapacity to lodge claim through illness-decision under review affirmed.
Administrative Appeals Act 1975 s37
Disability Discrimination Act 1992 s 51
Social Security Act 1991 ss 593 & 601 and Schedule 1B
Social Security (Administration) Act 1999 ss 11(1)(2), 13, 16, 41 & 42
& Schedule 2 Clause 3, 11(2)
REASONS FOR DECISION
Dr Roderick McRae
3 February 2012
On 8 June 2011 a Centrelink officer issued Ms Erin McNamara (the Applicant) a notice stating she would receive Newstart Allowance (NSA) from 1 June 2011. Centrelink acts as the service delivery agency for the Department of Education, Employment and Workplace Relations (the Respondent). The Applicant sought a review of that decision. A Centrelink authorised review officer (ARO) varied the decision on 12 July 2011 such that the NSA commencement date was 5 May 2011. The Applicant then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 12 October 2011 the SSAT affirmed the ARO’s decision. The Applicant now seeks a review of the SSAT decision by this Tribunal.
The issue before the Tribunal is whether 5 May 2011 is the correct start date for the Applicant’s NSA. The Tribunal’s decision is that 5 May 2011 is the correct start date for the Applicant’s NSA.
The Applicant attended the hearing and was represented by her father, who had also represented her at the SSAT. Mr Mark Hester, a Centrelink advocate, represented the Respondent. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).
BACKGROUND
The Applicant contacted Centrelink on 13 and 16 December 2010, expressing an intention to apply for a payment. She was advised to submit her claim by 27 December 2010. She contacted Centrelink again on 10 January 2011. The Applicant lodged a claim for NSA on 8 June 2011, following a further contact on 2 June 2011.
The Applicant’s general practitioner (GP), Dr Kelmann, provided a medical certificate dated 1 June 2011, which reported depression anxiety with a date of onset of 1 February 2011.
LEGISLATION
Section 51(d) of the Disability Discrimination Act 1992 51(d) provides that:
51 Pensions and allowances
(1) This Part does not affect discriminatory provisions relating to pensions, allowances or benefits in:
(d) the Social Security Act 1991; or ...
Sections 593 & 601 of the Act provide:
593 Qualification for newstart allowance
(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; ….
(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i)satisfies the activity test; or
(iiis not required to satisfy the activity test; …
(g)throughout the period the person:
(i)… is at least 21 years of …; and
(ii)is an Australian resident …; and
(i)the person was not in receipt of a youth allowance during the period.
(1B)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that throughout the period the person is unemployed; and
(b)throughout the period the person:
(i)has reached the age of 21 years and has not reached the pension age; and
(ii)is an Australian resident; and
(c)the person was not in receipt of a youth allowance during the period; and
(d)the person made a claim for disability support pension at or before the start of the period and the claim was not determined before the end of the period; and
(e)the Secretary is satisfied that throughout the period the person suffered from a medical condition that had a significant adverse effect on the person’s ability to work; and
(f)the person satisfies any one of the conditions in subsection (1C).
(1C) The conditions referred to in paragraph (1B)(f) are:
(a)a condition that the person was an Australian resident when the significant adverse effect of the medical condition on the person’s ability to work first occurred; and
….
(1E) The period for which the person is qualified for a newstart allowance under subsection (1D) starts:
…
(b)when the person made, or is taken to have made, the claim for newstart allowance.
601 Activity test
(1)… a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a)actively seeking; and
(b)willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
Sections 11(1), 13, 16, 41 & 42 & Clause 3 & 11(2) of Schedule 2 of the Social Security (Administration) Act 1999 provide:
11General rule
(1)… a person who wants to be granted:
(a)a social security payment; …
must make a claim for the payment or card in accordance with this Division.
13Deemed claim—person contacting Department about a claim for a social security payment
(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.
(2)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 payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)the Secretary is satisfied that:
(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability 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.
(4)A reference in this section to the Department being contacted includes a reference to the Department being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.
16How to make a claim
(1)A person makes a claim for a social security payment …:
(a)by lodging a written claim for the payment or card; ….
(2)A written claim for the purpose of subsection (1) for one social security payment … 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; or
(b)to a person approved for the purpose by the Secretary; or
(c)in a manner, and to a place, approved for the purpose by the Secretary.
….
41Commencement
(1)… a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.
42Start day
For the purposes of the social security law, a person’s start day in relation to a social security payment … is the day worked out in ac3 Start day—general rule
(1) 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.
….
3Start day--general rule
(1)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.
….
11Incapacitated claimant
(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.
APPLICANT’S SUBMISSIONS
The Applicant stated that she had seen the SSAT decision. She had attended an appointment with her general practitioner on 30 November 2010 regarding her depression. She regarded the 10 January 2011 contact date as being the appropriate date for commencement of NSA payment. She stated that due to her illness she was unable to deal with the [Centrelink] correspondence. She had no new evidence about her eligibility for NSA from an earlier date, nor was she able to identify an error in the application of the law. She considered the application of the Act was discriminatory.
RESPONDENT’S SUBMISSION
The Respondent submitted that the Applicant received NSA from 5 May 2011 as it is the date four weeks prior to 1 June 2011, which is the date prior to the deemed date of claim. The law has been correctly applied, and there is no permissible discretion.
FINDINGS
Section 51(d) of the Disability Discrimination Act exempts that Act from discriminatory provisions relating to pensions, allowances or benefits.
The Applicant contacted Centrelink on 13 December and 16 December 2010 and 10 January 2011 regarding an intention to claim NSA. She did not lodge a claim within 14 days of those contact dates. She did not lodge a claim within the extended period of 13 weeks from those dates. Accordingly, 10 January 2011 is not an appropriate start date.
The Applicant has a diagnosis of anxiety and depression from 1 February 2011. The Tribunal accepts this illness, the symptoms of which are likely to have preceded the diagnosis, impacted on her ability to claim NSA, such that she did not make a claim within 14 days of the deemed claim start date.
The Applicant contacted Centrelink on 2 June 2011 regarding an intention to claim NSA. She lodged the claim on 8 June 2011, within the required 14 days. It follows that 2 June 2011 is the claim start date. The claim was granted from 1 June 2011. She is qualified to receive NSA from 8 June 2011. Following a subsequent review consequent to her medical condition, the start date for NSA was 5 May 2011. This is consistent with the application of clause 11(2) of the Administration Act, which provides for a start date four weeks prior to the claim date.
CONCLUSION
The Applicant’s start date for NSA has been correctly determined according to law.
DECISION
Accordingly, the decision to reject the claim for DSP was the correct decision. The Tribunal affirms the decision of the SSAT made on 12 October 2011.
Date of Hearing 3 February 2012
Date of Decision 3 February 2012
Date of Written Reasons 16 March 2012
Advocate for the Applicant Mr Lou McNamara
Advocate for the Respondent Mr M Hester, Centrelink Legal Services
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae.
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Clerk
Dated: 16/03/2012
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