Fatwidah Arifin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 429
[2013] AATA 429
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1435
Re
Fatwidah Arifin
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 4 June 2013 Date of written reasons 25 June 2013 Place Sydney The Tribunal sets aside the decision under review and in substitution decides that Ms Arifin was eligible for disability support pension from 17 September 2009. The Tribunal remits the matter to the Respondent for assessment of arrears.
.......[sgd].................................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – date from which applicant entitled to payment – decision under review set aside – decision substituted that applicant entitled to payment from 17 September 2009 – matter remitted to the respondent for assessment of arrears
LEGISLATION
Social Security Act 1991 s 23
Social Security (Administration) Act 1999 ss 13 and 15
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member J F Toohey
25 June 2013
BACKGROUND
This decision concerns the date from which Ms Fatwidah Arifin is entitled to be paid disability support pension (DSP).
On 6 March 2012, the Social Security Appeals Tribunal (SSAT) affirmed a decision by Centrelink to grant Ms Arifin DSP from 27 September 2010. Ms Arifin sought review of that decision, claiming that she was entitled to payment from at least one of several earlier dates.
At the conclusion of a hearing on 4 June 2013, I decided that Ms Arifin was entitled to payment from 17 September 2009. Ms Arifin has requested written reasons for that decision. These written reasons reflect those given orally at the hearing.
MS ARIFIN’S CLAIM FOR DSP
At the time of the SSAT’s decision, available records showed that Ms Arifin had contacted Centrelink on 27 September 2010 to inquire about DSP. On 11 October 2010, she lodged a claim for DSP. Centrelink rejected her claim on the ground that she had not provided certain information requested by Centrelink.
The records showed further that, on 11 April 2011, Ms Arifin again contacted Centrelink about a claim for DSP. She lodged a claim on 27 April 2011.
A person who follows up a telephone or other inquiry with a written claim within 14 days is entitled to payment from the date of the first contact: s 13 of the Social Security (Administration) Act 1999 (the SSA Act). Centrelink granted Ms Arifin DSP from 14 April 2011.
Ms Arifin sought review of that decision, claiming she was entitled to payment from 27 September 2010 and that she had provided all necessary documentation within the time stipulated by Centrelink. The SSAT agreed, and decided she was entitled to payment of 27 September 2010.
MS ARIFIN'S APPLICATION FOR REVIEW
Ms Arifin sought review of the SSAT’s decision, claiming she was entitled to payment from at least one of several earlier dates, including a date in February 2009 when she became a permanent resident of Australia.
Permanent residency of itself does not entitle a person to DSP and it is not necessary to consider Ms Arifin’s entitlement from that date. However, Ms Arifin also claimed to have contacted Centrelink earlier than 27 September 2010, and to be entitled to payment from an earlier date.
After further searches of its records, Centrelink now agrees that Ms Arifin contacted Centrelink on 17 September 2009 to inquire about newstart allowance and lodged a written claim on 29 September 2009.
By s 15(4A) of the SSA Act, 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.
Based on evidence now available from Ms Arifin’s treating doctor, Centrelink agrees, and I am satisfied, that she qualified for DSP on 17 September 2009, when she applied for newstart allowance. She subsequently claimed DSP. I am satisfied that it is reasonable to apply s 15(4A) in her case that Ms Arifin should be taken to have made a claim for DSP on 17 September 2009.
IS MS ARIFIN ENTITLED TO DSP FROM A DATE EARLIER THAN 17 SEPTEMBER 2009?
Ms Arifin says she contacted Centrelink in March 2009, shortly after she became a permanent resident, to inquire about what benefits she was entitled to. She says she was not advised about DSP and that Centrelink “failed to encourage” her to apply for DSP.
Centrelink records show that Ms Arifin contacted the Lakemba office on 30 March 2009 “regarding Claim for Family Tax Benefit”. Nothing in the record for that date indicates that Ms Arifin inquired about, or was given information about, DSP.
I have considered whether Ms Arifin’s contact with the Lakemba office on 30 March 2009 might be taken to be an initial claim for the purposes of s 15(4A) of the SSA Act. However, s 15(4A) may only be applied where a person made a claim for an income support payment. Claims for family tax benefit are made under the A New Tax System (Family Assistance) Act 1999 and are not claims for an income support payment (see the definition of income support payment in s 23 of the Social Security Act 1991). As a result, Ms Arifin’s contact with Centrelink on 30 March 2009 cannot be considered an initial claim for the purposes of s 15(4A).
I have also considered whether the contact on 30 March 2009 might be taken to be an initial claim for the purposes of s 15(4) of the SSA Act. By s 15(4) if:
(a)a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim ); and
(b)when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and
(c)the person subsequently makes a claim for the social security payment referred to in paragraph (b) (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.
However, a claim for family tax benefit is not a claim for a payment that is similar in character to a social security payment as required by s 15(4)(a). (See the definition of social security payment in s 23 of the Social Security Act 1991; and Chapter 8.1.1.75 of the Guide to Social Security Law for examples of payments that might be similar in character to a social security payment.)
Further, although Ms Arifin says she lodged a medical certificate with Centrelink in March 2009, there is no evidence in Centrelink's records of a medical certificate being lodged around that time, and no evidence that she qualified for DSP at that time.
CONCLUSION
I am satisfied that Ms Arifin is entitled to payment of DSP from 17 September 2009 and that the decision under review should be set aside and the matter remitted to the respondent to calculate any arrears payable to Ms Arifin. I am not satisfied, on the evidence before me, that she is entitled to payment from an earlier date.
If Ms Arifin believes that a failing in Centrelink's administration has caused her financial loss, she is entitled to make a claim under the Compensation for Detriment caused by Defective Administration scheme which is administered by Centrelink. However, that is not a matter this Tribunal can consider.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .......[sgd].................................................................
Associate
Dated 25 June 2013
Date(s) of hearing 28 November 2012 and 4 June 2013 Applicant In person Solicitors for the Respondent Mr J Larcombe, Department of Human Services, Program Litigation and Review Branch
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