Evangelos Polydorou and Secretary, Department of Social Services
[2014] AATA 478
[2014] AATA 478
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4693
Re
Evangelos Polydorou
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 10 June 2014 Date of written reasons 15 July 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr C Ermert, Member
SOCIAL SECURITY – Disability Support Pension – absence from Australia – portability – cancellation – claim for review of cancellation – favourable determination – more than 13 weeks – date of effect – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999 ss.109, 1218C
REASONS FOR DECISION
Mr C Ermert, Member
16 July 2014
INTRODUCTION
These written reasons for decision are essentially the same as those given orally at the conclusion of the hearing. The introduction and details of the hearing have been added to facilitate understanding for those not present at the hearing.
Mr Polydorou, the Applicant, began receiving the Disability Support Pension (DSP) in November 2006. On 6 October 2010 Mr Polydorou departed Australia for Cyprus. On 4 January 2011 an officer of Centrelink, the Respondent, notified Mr Polydorou that his DSP was suspended as he was still overseas. Centrelink is the service provider for the Department of Social Services. On 5 April 2010 Centrelink cancelled Mr Polydorou’s DSP (the original decision).
Mr Polydorou returned to Australia on 28 January 2012. On 14 February 2012 he lodged a second application for DSP (the second claim). Mr Polydorou was successful with this claim and was subsequently granted DSP payments from 31 January 2012.
On 20 December 2012 Mr Polydorou asked Centrelink to reconsider the original decision. Centrelink affirmed the original decision. On 24 June 2013 an Authorised Review Officer (ARO) affirmed the reconsidered decision. Mr Polydorou applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO Decision. On 9 August 2013 the SSAT affirmed the decision. This is an application to review the SSAT decision.
THE HEARING
Mr Polydorou represented himself at the hearing and gave his evidence with the assistance of an interpreter in the Greek language. Mr Noonan, a departmental lawyer, represented the Respondent. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and Supplementary T-documents ST1 to ST4. For the Respondent, I took into evidence a letter from Dr Chiang dated 12 January 2014 (Exhibit R1), a Job Capacity Assessment Report dated 17 April 2014 (Exhibit R2) and the Secretary’s Statement of Facts and Contentions (SF&C) dated 30 April 2014.
LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act) and is discussed below.
THE ISSUES
Initially, the issue in contention was the portability period of Mr Polydorou’s DSP during his absence overseas. This issue was resolved by the SSAT finding that Mr Polydorou, while in Cyprus, suffered a serious exacerbation of his psychological illness, compounded by the relapse of his mother into serious illness. Accordingly, the SSAT was satisfied that the requirements of sections 1218C(1)(b) and (c) of the Act were met. This finding provided for the extension of Mr Polydorou’s DSP portability period beyond the 13 weeks until his return to Australia on 28 January 2012. The respondent did not contest this finding at the hearing.
However, this favourable finding of the SSAT is subject to a determination of its date of effect. The date of effect is prescribed by the provisions of section 109 of the Administration Act. Relevantly, section 109(1) provides for the date of effect to be the day on which the original decision took effect if the person applies for a review of the original decision within 13 weeks after notice is given of the decision. If the person applies for a review more than 13 weeks after the notice is given section 109(2) provides that the favourable decision takes effect on the day on which the application for review was made.
The issue in contention in this matter is whether Mr Polydorou can be paid DSP for the remainder of the period he was in Cyprus; that is from 5 January 2011 to 27 January 2012. This requires the determination of the date of effect of the favourable determination regarding the portability of Mr Polydorou’s DSP payments.
THE EVIDENCE
Mr Polydorou’s evidence was that all his contacts with Centrelink were by telephone. He said that he returned to Australia on 28 January 2012. Shortly after his return he spoke to an officer of Centrelink and made a claim for DSP. He said he was told the DSP was suspended and that he should look for work. Mr Polydorou said he told the officer he was going to make a claim for back payments. My Polydorou said he had more contacts with Centrelink “to find out what was going on”.
In answer to questions from Mr Noonan, Mr Polydorou agreed that his contacts with Centrelink on 8 April 2011, 20 April 2011, and 14 December 2011 were not related to his claim for a review of the original decision to cancel his DSP. Mr Noonan asked Mr Polydorou if he could offer any evidence that he had contacted Centrelink about his DSP cancellation while he was still in Cyprus. Mr Polydorou said he “didn’t know of any decision to stop the pension … didn’t have any information … didn’t receive any correspondence”.
TRIBUNAL CONSIDERATIONS
In his oral evidence, Mr Polydorou said that on his return to Australia he told an officer of Centrelink that he would be making a claim for back payments. There is no independent evidence that supports this contention. The Centrelink record of contacts includes an entry for 31 January 2012, which is only three days after Mr Polydorou’s return to Australia. That record contains only details of Mr Polydorou’s second claim for DSP which was granted as a result of this claim. There is no record of any part of the conversation which may have had a bearing on the decision to cancel his earlier DSP payments.
Mr Noonan contends that there are no documents on record before 20 December 2012 to indicate that Mr Polydorou asked for a review of the cancellation decision. He submits that the first claim for review of the cancellation decision was that recorded on 20 December 2012.
From the evidence I am satisfied that Mr Polydorou’s earliest request for a review of the original decision was made on 20 December 2012 and I find accordingly. As this is more than 13 weeks after the notice of the original decision, section 109(2) of the Administration Act applies. This section provides that the determination in favour of the applicant takes effect on the day on which the application for review was made. In Mr Polydorou’s case that is 20 December 2012. This means that the earliest date from which Mr Polydorou can receive the DSP payments resulting from his original DSP claim is 20 December 2012.
This finding does not assist Mr Polydorou as his DSP payments from his second claim commenced on 31 January 2012. However, my finding affirms the decision of the SSAT that Mr Polydorou is not entitled to be paid DSP for the period between 4 January 2011 and 27 January 2012.
For completeness, even if I were to accept, which I do not, Mr Polydorou’s oral statement that he told Centrelink of his intention to claim back payments immediately after his return to Australia, the date of effect of such a finding would be 31 January 2011. As Mr Polydorou began receiving the payments from his second DSP claim from the same date, such a finding would be of no benefit to Mr Polydorou.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member [sgd]........................................................................
Associate
Dated 16 July 2014
Date of hearing 10 June 2014 Applicant In person Advocate for the Respondent Mr T Noonan
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