Evans and Secretary, Department of Family and Community Services - [2002] AATA 914

DECISION AND REASONS FOR DECISION [2002] AATA 914

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/122

GENERAL ADMINISTRATIVE DIVISION         )
           Re      KIM EVANS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date 11 October 2002
Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[SGD] Ms N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY – mobility allowance – informal claim – formal claim – start day

LEGISLATION
Social Security (Administration) Act 1999 – ss. 11, 13, 16, 41, 42, Sch 2. Part 2 - 3(1)

REASONS FOR DECISION

Ms N Isenberg, Member
DECISION UNDER REVIEW

The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 1 November 2001 (T10) as affirmed by the Authorised Review Officer on 29 November 2001 (T15) and the Social Security Appeals Tribunal ("the SSAT") on 7 January 2002 (T2), to Kim Evans ("the Applicant").
BACKGROUND
The Applicant has been in receipt of disability support pension since at least 1994, possibly earlier. In August 2001 the Applicant for the first time learned of the existence of Mobility Allowance and immediately, on 21 August 2001, made enquires about her entitlement. A formal claim was received by Centrelink on 5 September 2001 and she was paid Mobility Allowance from 29 August 2001.
ISSUE BEFORE THE TRIBUNAL

The Applicant contends that she is entitled to Mobility Allowance from a date much earlier than that identified by Centrelink – in fact, back to when she became entitled to disability support pension.
APPEARANCES
A hearing was held before the Tribunal on 3 September 2002 at which the Applicant spoke with the Tribunal by conference telephone, assisted by Ms Kaye Fraser. The Respondent was represented by Ms Andrea Garcia, an advocate from the Advocacy and Administrative Law Team at Centrelink.
LEGISLATION
The relevant legislation in this matter is the Social Security (Administration) Act1999. Those sections so far as is relevant, provide as follows:
Section 11
General rule
(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.
Section 13
Deemed 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, other than crisis payment or special employment advance; 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.
(3) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b) the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the claimant a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the claimant 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 claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and
(ii) throughout that period, the other person suffered from a medical condition; and
(iii) the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant's ability to lodge the claim earlier;
the claimant 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.
(5) This section has effect subject to section 18.
Section 16
How to make a claim
(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; or
(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.
(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.
(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.
(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.
(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.
(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.
(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

Section 41
Commencement
(1) Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.
(2) Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.
Section 42
Start day
For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.
Schedule 2—Rules for working out start day
…
Part 2—General rules
3 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.
…

EVIDENCE: DOCUMENTS

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), which the Tribunal took into evidence.
In addition, the following documents were tendered:
EXHIBIT       DOCUMENT DATE
TD1 T-documents T1-T17 Page1-59 -
A1      Note from Dr Ruben Karalasingham       20/03/2002
A2      Letter from Community Information Officer (K Ryan)    25/03/2002
A3      Letter from Holroyd City Council (D Trezise)     03/05/2002
A4      Extract from the Social Security (Administration) Bill 1999     -
R1      Respondent's Statement of Facts and Contentions     10/07/2002
R2      Computer generated file note       10/07/2002
R3      Respondent's Statement of Issues          22/02/2002

In the course of the hearing the Applicant referred to a document which she subsequently sent into the Tribunal. That document - an extract from the Social Security (Administration) Bill 1999 (Bills Digest 1999-2000) has also been marked an Exhibit (A4).
EVIDENCE AND SUBMISSION: THE APPLICANT
Ms Evans gave evidence and questions were also put to her by the Tribunal.
Ms Evans, who is intellectually disabled, told the Tribunal that she should have been paid Mobility Allowance from the time she was first paid disability support pension. In 1993, she was unable to speak or read or write as a result of a car accident. Her doctor wouldn't fill out forms as it would be inappropriate when she wasn't in condition to be able to do so herself.
It was not until August 2001 that she first heard of mobility allowance in a Centrelink brochure and immediately telephoned Centrelink to enquire about it. Until that time she had no idea about its availability.
In response to her phone call Centrelink sent her some forms and she sent them in. Centrelink only paid her Mobility Allowance from 5 September 2001 (the date the form was received) so she went in to complain and it was backdated to 27 August 2001. She maintained that it should have been paid from an earlier time.
She said she saw Centrelink doctors when she first applied for disability support pension and they should have asked her if she needed a Mobility Allowance. She did not think it was her own doctor's job to advise her of what entitlements might be available from Centrelink.
She believed that she would have been entitled to Mobility Allowance at a much earlier date as she met the requirements of doing voluntary work as well as undertaking living skills training at that time.
In her evidence she referred to a '1999 ALP policy document' to the effect, she said, that people would not be discriminated against if they got their applications in late. The document to which she referred (Extract from the Social Security (Administration) Bill 1999 (Exhibit A4)) was subsequently forwarded to the Tribunal.
Ms Evans was asked about her state of health between the time she made her first enquiry and when she lodged the form. She did not say that her health was other than it has been in recent years, since she had been able to walk and talk again.
The Tribunal noted that Ms Evans assists her mother around the home. As to her mother's health between the time Ms Evans made her first enquiry and when she lodged the form she also did not say that her mother was in especially poor health at that time, and instead told the Tribunal of the household chores to which she would attend.
Ms Fraser did not have anything she wished to add to the Applicant's submission.
SUBMISSION: RESPONDENT
It was conceded on behalf of the Respondent that the Applicant had made her first contact with Centrelink to enquire about Mobility Allowance on 21 August 2001(T4) and that forms were sent to her on that date. Subsequently the Applicant made another telephone enquiry on 29 August 2001 (Exhibit R2).
The Respondent contended that the Applicant is not entitled to a backpayment of Mobility Allowance to a date earlier than 29 August 2001.
Section 11 of the Social Security (Administration) Act1999 states that an individual who seeks to be granted "a social security payment" must firstly lodge a claim. Sections 13 and 16 state that a claim is considered to be a 'deemed claim' or an acceptable claim on the date an individual contacts Centrelink by telephone, to advise of their intention to claim, and the individual then lodges a written claim within 14 days of the initial contact date.
The Applicant contacted Centrelink by telephone about her intention to claim Mobility Allowance on 29 August 2001 (T12, p.45). The Respondent submitted that this was the first time the Applicant contacted Centrelink to enquire about Mobility Allowance.
Pursuant to section 41, a social security payment becomes payable to an individual on their 'start day', that is the day on which the claim was made, in this case, 29 August 2001.
The Respondent contended that 29 August 2001 represents the start day for payment of Mobility Allowance to the Applicant. As Centrelink granted the Applicant Mobility Allowance from this date no arrears are payable.
FINDINGS
In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, and relevant legislation.
The Tribunal first turned to consider the document tendered by the Applicant. That document was an outline of some changes made to the social security legislation by the Social Security (Administration) Act 1999 ("the Act"). The portion to which the Applicant referred was in relation to the time for an application for review, and is not relevant to the matter before the Tribunal.
The Tribunal then turned to the substantive matter before it. In plain terms, section 13(1) of the Act provides that where a person contacts Centrelink about a claim the start date for that claim can be backdated to the date the person made that contact provided the formal claim is lodged within 14 days of that contact.
In this case Ms Evans first contacted Centrelink on 21 August 2001. She did not lodge the claim, however, until 5 September 2001, that is, more than 14 days from the date of her telephone call. Therefore, in respect of the contact on 21 August 2001 Ms Evans is not entitled to the benefit of the backdating provision in section 13(1) of the Act.
However, if a formal claim is made more than 14 days from the date of the first contact, as occurred in this case, there is another way that backdating may occur. Section 13(2) of the Act permits backdating if, throughout the period from the date of contact until lodgement, the person was suffering from a medical condition which had a significant adverse effect upon his or her ability to lodge the claim. Similarly, section 13(3) permits backdating if, throughout that period, the person was caring for someone who was suffering from a medical condition which had a significant adverse effect upon the person's ability to lodge the claim.
However, Ms Evans gave no evidence that her health, or that of her mother was such that in the 14 days after 21 August 2001 she was limited in her ability to lodge the form. Her circumstances therefore do not fall within those of section 13(2) or (3).
For these reasons Ms Evans is not entitled to have her claim for Mobility Allowance backdated to 21 August 2001 under any provision in section 13 of the Act.
Centrelink, however, noted that Ms Evans also made contact about claiming Mobility Allowance on 29 August 2001. September 5 2001, the date the formal claim was lodged, is within 14 days of that date and Centrelink was prepared to apply the provisions of section 13(1) to give Ms Evans the benefit of backdating to that date. The Tribunal agrees that this course was open to Centrelink under section 13(1).
Therefore the Tribunal finds that the earliest start date available to the Applicant is 29 August 2001.
However, it is not Ms Evans main concern that she may not be entitled to a few additional days of Mobility Allowance, that is between 21 and 28 August 2001. Her main concern is that she believes she had an entitlement to Mobility Allowance from a much earlier time, namely, from the date she first received disability support pension, which, from the evidence before the Tribunal, was 2 June 1994.
The essence of her complaint is that Centrelink doctors or officers owed her a duty of care to advise her of the availability of Mobility Allowance. Had she been aware of its availability at an earlier date, she would have claimed it, and she believed she would have met the criteria from the time she was granted disability support pension. In this regard her evidence was that she contacted Centrelink as soon as she learned of its availability through the brochure.
The Tribunal acknowledges the Applicant's concerns that she was not aware of the availability of Mobility Allowance prior to receiving the brochure from Centrelink which 'advertised' it. However the Act is clear – it is a claim by a potential recipient of a benefit which triggers a start date.
The Tribunal is not required to make a finding whether Centrelink had a duty of care to inform the Applicant of her potential entitlement. Pursuit of that issue would need to occur elsewhere. The Tribunal also observes that it is not in a position to comment whether, in fact, Ms Evans met the criteria at some earlier time and whether, had she applied earlier, she would have been granted Mobility Allowance at that time.
In the course of the hearing the advocate for the Respondent mentioned that the Applicant may wish to make a claim for compensation for Detriment Caused by Defective Administration. The Tribunal makes no comment in relation to that matter.
DECISION
The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed:         .....................................................................................
  Associate
Date of Hearing   3 September 2002
Date of Decision  11 October 2002
Advocate for the Applicant           Ms K Fraser
Advocate for the Respondent      Ms A Garcia